V.K. JAIN, J

This is a suit for recovery of Rs.28,74,316.24p. The case of the plaintiff is that he has been selling material to the defendant, on credit, since 2nd August, 2003 and the defendant company has been making payment in account to him. A sum of Rs.25,84,708.14p is alleged to be due from the defendant company towards balance price of the goods sold to it by the plaintiff. The plaintiff has claimed that amount from the defendant along with interest thereon @12% p.a. amounting to Rs.2,89,608.10p.

2. Before filing this suit, the plaintiff had filed a suit against the defendant before the learned District Judge, Delhi for recovery of price of the goods sold by him to the defendant during the period from 20th March, 2008 to 29th June, 2009. The case of the defendant is that since the present suit is based on invoices for the period from 2nd August, 2003 to 30th June, 2009, it is barred under Order II Rule 2 CPC. It is further alleged that the amount alleged to be overdue since the years 2003-04 to 2006-07 is barred by limitation since Article 14 of the Limitation Act provides a limitation of 3 years from the date of delivery of the goods.

3. The application has been opposed by the plaintiff. It is alleged in the reply that the suit filed before the learned District Judge was with respect to price of the goods supplied to the defendant at its Gurgaon (Haryana) unit/showroom whereas the present suit pertains to price of the goods supplied to the defendant at their Okhla unit. It is also alleged that the dealings between the parties with respect to Okhla and Gurgaon units were distinct, separate and independent, orders on the plaintiff used to be placed by Gurgaon office as well as by Okhla office and separate accounts were maintained by him with respect to the supply made to Gurgaon office and the supply made to Okhla office. As regards limitation, it is alleged that there was a running account between the parties and in any case, part payment or payment in account was also made by the defendant to the plaintiff, which saves the period of limitation.

4. Order II Rule 2 CPC to the extent it is relevant provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and where he omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. The explanation below this Rule to the extent it is relevant provides that successive claims arising under the same obligation shall be deemed to constitute one cause of action.

5. The expression ‘cause of action’, in the context of Order II Rule 2 of CPC would mean all those facts which the plaintiff in order to obtain judgment will have to prove, if disputed by the defendant. In order to succeed in a suit for price of goods sold and delivered, the plaintiff will have to prove (i) the order placed by the defendant with him for supply of goods, (ii) delivery of the ordered goods to the defendant, (iii) the price of the goods sold to the defendant and (iv) failure of the defendant to make payment of the price of the goods. When different orders are placed from time to time and the goods are supplied pursuant to those different orders, each order for supply of goods and delivery of those goods by the plaintiff to the defendant would constitute a distinct and separate cause of action. If, however, the goods are supplied on different dates but under a common/umbrella contract/order for supply of goods, all the supplies pursuant to that contract/order may constitute a common cause of action despite the goods being delivered on different dates. But, where the orders are distinct, it cannot be said that all of them constitute a common cause of action. In order to succeed in this suit, the plaintiff will be required to prove each and every order placed by the defendant with him for supply of goods from ti