Point of Law: Plaintiff had failed to prove liability of defendants to pay him any amount which could be said to be within the period of limitation.

JUDGMENT :

By way of instant appeal, the appellants have assailed judgment and decree dated 24.12.2008 passed by learned District Judge, Shimla in Civil Appeal No. 47-8/13 of 2008 whereby the judgment and decree dated 29.5.2008 passed by learned Civil Judge, Senior Division, Shimla in Civil Suit No. RBT-III/1 of 2005/01 was affirmed and the suit of the respondent herein was decreed.

2. The parties herein shall be referred to by the same status which they held before the learned trial Court.

3. Brief facts necessary for adjudication of the appeal are that the plaintiff filed a suit for recovery of Rs.2,41,387.17 against defendants on the premise that the plaintiff was running a business of auto parts under the name and style of M/s Himachal Auto Services and the defendants had been obtaining his services in the form of repair of vehicles and purchase of spare parts etc. It was alleged that defendant No.1 had an open cash credit mutual and running account with plaintiff. The payments made by defendants to plaintiff, from time to time, were duly credited in the account books maintained by plaintiff in regular course of his business. The debit entries were also regularly shown in such account books as and when the bills were raised by the plaintiff against the repairs of their vehicles or supply of spare parts etc.

4. The suit was filed on 05.04.2001. It was claimed in the plaint that the cause of action had arisen initially on 28.4.1992 when the open mutual cash credit account was opened by defendants with plaintiff. Plaintiff further relied upon a detail of amounts payable by the defendants to the plaintiff w.e.f. the financial year 1992-93. By adding the balance carried forward in each of the financial year w.e.f. 1992-93, a total sum of Rs.2,53,852.12 was claimed as payable. Plaintiff admitted to have received a sum of Rs.47,627/- and Rs.58,985/- from defendants on 31.3.1999 and 19.10.2000, respectively. After deducting the amount so received and after adding claimed interest at the rate of 18% per annum, the suit amount of Rs.2,41,387.12 was calculated.

5. The suit was contested by the defendants. The opening of cash credit open and mutual running account by the defendants with the plaintiff was specifically denied. It was submitted that the defendants placed orders in writing to the plaintiff for repair of their vehicles on need basis and payments were made in the regular course of business against the bills generated by plaintiff. As per defendants, the suit of the plaintiff was time barred as there was no open mutual and running account. Objection as to non-maintainability of the suit on account of want of notice under Section 392 of the H.P. Municipal Corporation Act was also raised.

6. On the pleadings of the parties, the learned trial Court framed the following issues :

1. Whether the plaintiff is entitled to recover from the defendants the suit amount along with interest at the rate of 18% per annum, as alleged ? OPP

2. Whether the plaintiff has no cause of action? O.P.D.

3. Whether the suit is barred by time? OPD

4. Whether the suit is barred by the provisions of Section 392 of the H.P. Municipal Corporation Act? OPD

5. Relief.

7. Issue No.1 was partly decided in affirmative and the suit of the plaintiff was decreed for a sum of Rs.1,47,240.12 alongwith interest at the rate of 9% per annum payable w.e.f. 19.10.2000 till realization of entire decretal amount. The learned lower Appellate Court also affirmed the findings returned by the learned trial Court and dismissed the appeal of the defendants.

8. This appeal was admitted on 04.12.2009 on following substantial question of law:

“Whether both the Courts below incorrectly applied Article of the Limitation Act, 1963 to hold the claim in the suit as within limitation inspite of the fact that bills raised pertained to the period from 1992 to 1999?

9. I have heard learned counsel f