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TMI Blog2010 (4) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the dues of the plaintiff-company to the extent of ₹ 2,27,588.81. It is further alleged that the defendant has not cleared the aforesaid dues inspite of repeated requests, reminders and due service of a legal notice and as such it is liable to pay the aforesaid dues along with interest @ 21% per annum w.e.f. the date of each default, but for the sake of convenience, the plaintiff is claiming interest w.e.f. 12th July, 2001 till realization and accordingly, the amount of ₹ 3,23,175.75 is due, which includes the principal amount of ₹ 2,27,588.81 as well as the interest calculated from the said date till the date of the filing of the suit, in the sum of ₹ 95,586.91. 3. The defendant in its written statement has taken a preliminary objection that the suit of the plaintiff is without any cause of action, inasmuch as the plaintiff in its alleged statement of accounts has depicted 41 bills for a total sum of ₹ 7,69,737.22 against which the defendant has been shown to have made payment of ₹ 5,42,148.70, leaving a balance of ₹ 2,27,588.52 as still due and payable by the defendant, but no amount is due and payable against the aforesaid bills sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed on account of misjoinder of the causes of action. 7. In the replication filed by the plaintiff, the said preliminary objections were denied by the plaintiff as also the averments made in the written statement and those made in the plaint were reiterated. On the pleadings of the parties, the following issues were framed for adjudication: (i) Whether the suit is within limitation? (OPP) (ii) Whether the defendant rejected five bills totalling ₹ 2,23,190.87 paise as mentioned in preliminary objection No. 1? (OPD) (iii) Whether the suit is bad for misjoinder of cause of action? (OPD) (iv) Whether the suit has been signed, verified and filed by competent person? (OPP) (v) Whether the plaintiff is entitled to interest, if so at what rate? (OPP) (vi) Relief. 8. It is necessary to note at this juncture that the dismissal of the suit by the learned Trial Court is based entirely on issue No. 1 and the remaining issues have not been adjudicated upon. It is also necessary to note that almost all the documents relied upon by the plaintiff to prove its case are not in dispute. The said documents include the duly receipted office copies of the invoices - Ex.PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a separate cause of action and such claims of the plaintiff against the 41 bills, on the date of the suit, was barred by time. Having held so, the learned Trial Court, as stated above, dismissed the suit. 13. The learned Counsel for the appellant, Mr. J.S., Bakshi contended that Ex.PW1/D1 shows the 41 bills which were totalling ₹ 7,69,737.22p for the duration 15.05.1998 to 15.03.1999 and against the said outstanding amount, an amount of ₹ 5,42,148.70 was received on account by way of six cheques on 16.02.1999, 23.02.2000, 20.04.2000, 04.07.2000, 08.01.2001 and 12.07.2001. He further contended that as per law, the original limitation was three years from the date of the last bill i.e. 15.03.1999 but due to the part payments being made within the period of 3 years thereof, the last payment being on 12.07.2001, the limitation period stood extended to three years beyond 12.07.2001 i.e. till 11.07.2004 and the suit was filed on 18.07.2003. In this regard reliance was placed by the counsel for the appellant on the decisions rendered in the cases reported as F.C.C. Projects Pvt. Ltd. v. Ashish Bhardwaj 145 (2007) DLT 457 (DB); Rajesh Kumari v. Prem Chand Jain 67 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) Similar is the stand with respect to cheque No. 684683 dated 04.07.2000 for ₹ 1,03,657; No. 759513 dated 08.01.2001 for ₹ 1,00,000/- and 770332 dated 12.07.2001 for ₹ 52,190/-. 16. It is also contended by the learned Counsel that an attempt had been made to match the value of 5 invoices to total these to ₹ 75,000/- in respect of cheque 375053 dated 23.02.2000 for ₹ 75,000/- but it has not been explained as to how against bill No. 126 dated 16.02.1999 for ₹ 3046.40 (Ex.PW1/98), ₹ 159.65 only was paid by Cheque No. 375053. 17. Mr. Bakshi, learned Counsel for the appellant further contended that there was no denial of the receipt of letters of demand as well as to the receipt of the legal notice in the written statement and thus, the documents Ex.PW1/101 to Ex.PW1/108 stood proved. It is also not in dispute that no response was sent by the respondent to the appellant's aforesaid letters of demand and the legal notice. Thus, the learned Counsel for the appellant contended that adverse inference ought to be drawn against the respondent. He further contended that adverse inference deserves to be drawn against the respondent also fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of the interest. In either case, the payment will be on account of the debt, which is all that the provision requires. Once payment by cheque is accepted by the plaintiff, the plaintiff will be entitled to the extended period of limitation under Section 19 of the Limitation Act, 1963 and the said advantage cannot be wiped off or undone by the tortuous act of the defendant withholding the payment of the cheque. It was also observed that it is settled that this provision is to be interpreted liberally so as to save the suits from being barred by limitation so long as its benefits can reasonably be extended to assist a claim, otherwise legal and sustainable. 21. In the case of Technofab Engineering Ltd. (supra), a learned Single Judge of this Court, relying upon the earlier judgment of this Court in Rajesh Kumari's case held that when payment on account of debt or of interest on a legacy is made before expiration of the prescribed period by the person liable to pay the debt or by an agent duly authorised on his behalf, a fresh period of limitation shall be computed from the time when the payment is made. 22. In the case reported as J.K. Lakshmi Cement Ltd. (supra) it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order and rates agreed. Any discrepancy in this invoice should be brought to our notice within three days. Otherwise, we would not be responsible for the same. 27. Clearly, in my opinion, the respondent has not even cared to state when the bills were rejected and whether the said rejection was communicated to the appellant. DW1, Mohd. Faruk Hossain, during his cross-examination has conceded that the respondent-Company has no written document signifying the alleged rejection. The assertion that five of the bills were rejected was made for the first time by the respondent in their written statement filed on 2nd July, 2004, stating therein that the five bills totalling to ₹ 2,23,190/87 were rejected as the job done was not as per specifications. It has not even been elaborated as how the job done was not as per specifications and whether the goods in question were retained by the respondent or returned back to the appellant. Thus, the bald assertion made by the respondent that five bills were rejected as the job done was not according to the specifications cannot be given any credence. 28. Issue No. 2 is accordingly decided in favour of the appellant and against the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be held entitled to recover the sum of ₹ 2,27,588.81, which was due and outstanding against the respondent as on 12th July, 2001. The document mentioned as Ex.DW1/1 has been proved in evidence by the sole witness of the respondent i.e. DW1- Mohd. Faruk Hossain and was also exhibited in the course of cross-examination of PW1 as Ex.PW1/D2. The said document, in my considered opinion, clinches the matter being a statement of accounts filed by the respondent itself, showing the amount due to the appellant. The portion C to D of the said document which appears at the bottom of the document and shows the bills rejected and not passed for payment, as stated above, cannot be believed. Accordingly, the appellant is held entitled to recover the sum of ₹ 2,27,588.81 being the principal amount of the unpaid bills. 33. As regards the award of interest, though the invoices set out that interest @ 21 % per annum will be charged if the bill is not paid on the due date, keeping in view the prevalent rate of interest, the appellant is awarded interest @ 12% per annum with effect from 12.07.2001 till the date of realisation. 34. The appeal stands allowed. The impugned order is set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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