JUDGMENT :

JAYANT NATH, J.

(Oral) IA No. 10438/2017

1. This application is filed under Order 7 Rule 11 CPC seeking rejection of the plaint. It is pleaded in the application that the suit is barred by limitation on the face of it.

2. The present suit is filed by the plaintiff for a recovery of Rs.3,42,59,576/-. It is the case of the plaintiff that she is the proprietor of the Firm-S.D. Infosys and is engaged in the business of sale of H.P. Computers, laptops, printers, scanners, servers, etc. In 2006, the plaintiff’s Firm was appointed as a commercial business partner by the defendant Company for the sale of H.P. Computers, laptops, printers, scanners, etc. to corporates, schools, colleges, small scale industries for Delhi-NCR Region. It is pleaded that the plaintiff maintained a regular and running ledger/statement of account in the name of the defendant in the ordinary course of business. The defendant after the sales used to pay commission/incentive to the plaintiff for the sale of the mentioned goods. Over a period of time, the plaintiff developed good faith in the defendant. However, with the passage of time, there were lapses on the part of the defendant in clearing the dues. However, the plaintiff believing the assurances and promises continued selling defendant’s product. The defendant stopped making the payment of dues and incentives by August-September 2010. The plaintiff ran short of funds and therefore, decided to recover the payment of incentives/commission from the defendant. Hence, the plaintiff started making requests to the defendant to make the payment of the outstanding dues through e-mails, etc. In the suit it is claimed that as per the ledger/statement of account maintained in the name of the defendant, a sum of Rs.2,38,60,817/- is outstanding as on 13.01.2015.

3. I have heard learned counsel for the parties.

4. Learned counsel for the defendant has pleaded that the suit is hopelessly barred by limitation. The suit was filed on 24.02.2016. In another suit being CS(OS) 1062/2011 filed by a third party against the plaintiff herein an interim order was passed attaching a sum of Rs.98,66,500/- allegedly payable by the defendant to the plaintiff. This court vide order dated 12.09.2012 accepted the plea of the defendant herein that only a sum of Rs.2,26,503/- is payable and no more. This court directed the defendant to deposit the said amount in court in that suit. Needful was done on 05.03.2013. It is pleaded that the payment was towards full and final settlement of the dues of the plaintiff. The present suit filed on 24.02.2016 is hopelessly barred by limitation. It has also been pointed out that there is a delay of 274 days in re-filing of the suit on account of which even otherwise the suit is liable to be dismissed. Learned counsel for the defendant has relied upon the judgment of the Supreme Court in the case of State of Gujarat vs. Kothari & Associates, (2016) 14 SCC 761 to contend that Section 19 of the Limitation Act has no application.

5. Learned counsel for the plaintiff relies upon Section 19 of the Limitation Act to contend that part payment was made by the defendant on 05.03.2013 and in terms of Section 19 of the Limitation Act, the limitation period gets extended. The suit is filed on 24.02.2016 which is well within three years from 05.03.2013. He has also stated that IA No. 113/2011 which is for condonation of delay be allowed. He states that there is a delay of 274 days in re-filing of the suit on account of the fact that the plaintiff was unwell and could not pay the necessary court fees and also follow up with the lawyers for having the same re-filed in time.

6. I may first look at para 16 of the plaint regarding the cause of action pleaded by the plaintiff which reads as follows:-

“16. That the cause of action for filing the present suit arose in favour of the Plaintiff and against the Defendant on all the dates, when the Plaintiff was assigned the responsibilities of negotiating deals with the Corpora