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2010 Supreme(Mad) 2006
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. PALANIVELU
M/s. Transchem Limited, rep. By its Managing Director
Versus
M/s. Chouraria Wire Netting Industries, rep. By its Managing Partner
A.S.No.1013 of 2004 in C.M.P.No.1652 of 2009
Decided on : 30-04-2010
For the Petitioner:Bijesh Thomas for V. Nataraj, Advocates. For the Respondent:T.L. Rammohan, Senior Counsel for G. Sumitra, Advocate.
Headnote:A. LIMITATION ACT, 1963 - SECTION 18, 19 - SUIT ON GOODS SOLD AND DELIVERED - HELD, SUITS BARRED BY LIMITATION - ACCOUNTS MUTUAL OPEN AND CURRENT - MERE PAYMENT OF DEBT OR INTEREST BEFORE PERIOD OF LIMITATION IS NOT SUFFICIENT - SHALL BE ACCOMPANIED BY AN ACKNOWLEDGEMENT IN WRITING BY PERSON MAKING PAYMENT TO EXTEND THE PERIOD OF LIMITATION - LIMITATION SHALL COMMENCE FROM DATE OF ACKNOWLEDGEMENT -
The respondent supplied wire mesh to the appellants upon orders, made by the latter. The materials were supplied in accordance with instructions of the appellants herein. The appellant made a payment on 24-12-1996 by way of cheque which it does not deny, and the last bill raised by the respondent was raised on 04-06-1996. The Exhibit Ex.A5 is admission of liability by the appellant. The Exhibit Ex.A5 is dated 05-09-1996. The suit itself has been instituted on 20-12-1999, and hence the suit is barred by limitation. The mere part payment of principal or interest before the expiry of the period of limitation will not suffice to extend the period of limitation, there must be an acknowledgement in writing by the person making the payment. But in the present case the acknowledgement Ex.A5 dated 05-09-1996 precedes the payment on 24-12-1996. The legal requirement according to Section 19 of the Limitation Act, 1963 and the ruling of Hon’ble Supreme Court in Sant Lal Mahton v. Kamla Prasad and reported in AIR 1951 Supreme Court 477 the payment within the period of limitation shall be followed by the acknowledgement in writing by the person making the payment, and limitation shall commence from the date of acknowledgement. (Sant Lal Mahton v. Kamla Prasad, AIR 1951 SC 477, Kamalamma v. Ramabadhra).
B. CIVIL PROCEDURE CODE, 1908 - SECTION 20 - TERRITORIAL JURISDICTION - RESPONDENTS OFFICE IS IN CHENNAI - APPELLANT PLACED ORDERS WITH RESPONDENT - RESPONDENT ACCEPTED - DELIVERED GOODS - IT CANNOT BE CONTENDED THAT CHENNAI HAS NO TERRITORIAL JURISDICTION -
It has been contended that courts in Chennai had no jurisdiction. The office of the respondent is situated within the jurisdiction in Chennai. The appellant placed order with the respondent at Chennai. The respondent accepted the same and delivered the same. Hence it cannot be contended that the courts at Chennai had no jurisdiction.
Result: A.S. Allowed.
1. This appeal is filed against the judgment and decree passed in O.S.No.1350 of 2000, dated 16.04.2003 on the file of the Additional District Judge, Fast Track Court V, Chennai.
The following are the allegations in short available in the plaint:-
2a) The plaintiff deals with welded mesh. The defendant placed an order over phone at Madras for purchase of wire mesh and as per the request, the goods were supplied as per purchase order No.330 dated 07.03.1996 on 11.05.1996. The defendant requested the plaintiff to reduce the quantity of supply of goods and accordingly the goods were supplied to the value of Rs.6,05,2450.
2b) By means of Bill No.018 dated 15.04.1996, the defendant made payment for a sum of Rs.41,072/- by Cheque No.272238 dated 27.04.1996 and for the Bill No.037 dated 26.04.1996 for a sum of Rs.1,33,4050. He also made payment for bill No.37 for Rs.1,33,407.50 by Cheque No.328149 dated 212. 1996. The defendant owed a sum of Rs.4,30,768/- to the plaintiff. The plaintiff is keeping the running account for the supply of goods to the defendant.
2c) As per terms and conditions, since the defendant has not issued "C" Form, he is also liable to pay 10% of the goods supplied i.e., Rs.65,2450. The plaintiff has sent several letters dated 07.06.1997, 23.06.1997, 30.08.1997 and 30.09.1997 even though he received the same, the defendant has not paid any amount. On 05.09.1996 by a fax message he informed the plaintiff to wait for one or two weeks before being requested for apology for delayed payment made for Bill Nos.18 and 37. On 22.09.1998 the plaintiff issued legal notice for which the defendant sent reply on 010. 1998 denying his liability. On 30.10.1998, again, the plaintiff issued lawyers notice for which he issued reply on 111. 1998 requesting the plaintiffs counsel to provide the copy of purchase orders and proof of delivery of materials on 112. 1998. The plaintiffs counsel sent a notice enclosing copies of purchase order and letter dated 05.09.1996. On 212. 1998, the defendant issued reply stating that the enclosed copies were not received. Hence the plaintiffs counsel has also issued a legal notice on 22.02.1999, for which there was no reply.
2d) As per the terms of purchase order, if the amounts were not paid within three days, the defendant is liable to pay interest at the rate of 24% p.a.
2e) The suit is not barred on account of the defendants payment on 212. 1996 of a sum of Rs.1,33,407.50 under Cheque No.328149. Hence the suit has been filed for recovery of Rs.8,66,437/- being principal for payment for non-issuing of "C" form and interest.
3. In the written statement the defendant has alleged as follows:
3a) The plaintiff used to raise bills towards the supplies effected and payments were made in respect of each bill. Separate Invoice Nos.18, 37, 58 and 84 were raised for each supply. Even according to the plaintiff the defendant has paid separately in respect of last Invoice No.18 and 37. It is denied that the plaintiff is maintaining a running account and the last bill has been raised by the plaintiff on 04.06.1996. The suit has been filed in December 1999, beyond the prescribed period of three years. Hence the suit is barred by limitation.
3b) The defendant has its registered office at Thane, Maharastra State and the factory premises are in Pune, Maharastra. Hence the Court in Chennai does not have jurisdiction to entertain the suit, since no part of cause of the action has arisen in Chennai.
3c) It is denied that the orders were made over phone. The defendant denies the receipts of the letters dated 07.06.1997, 23.06.1997, 30.08.1997 and 30.09.1997. It is denied that the amounts due under Bill Nos.58 and 84 have not been settled. Hence the suit may be dismissed with exemplary cost.
4. On scrutiny of the pleadings, evidence, documents on record the learned First Appellate Judge, Fast Track Court V, Chennai has decreed the suit directing to pay with subsequent interest from the date of plaint till
