9911796707
TMI Blog2005 (10) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... on 7.12.1983 (Ex.PIO) and subsequently by finally refusing the payment of the amount on 14.8.1986 (Ex.P 11)? Facts in brief necessary for disposal of the controversy raised in the instant appeal are that the plaintiff-appellant has filed Civil Suit No. 176 of 1988 on 1.9.1986 for recovery of ₹ 1,81,000/- being 10% balance payment of the price of the equipments 300 KVA generating sets and security etc. It was pleaded that the plaintiff-appellant entered into an agreement with the defendant-respondents for supply of a generating set to the defendant-respondents. In terms of the agreement, a sum of ₹ 35,000/- was deposited by the plaintiff-appellant with the defendant-respondents as security. The generating set was supplied and the defendant-respondents made payment of ₹ 6,30,000/-, withholding the balance payment of ₹ 70,000/-. Accordingly, a request was made for making the balance payment to the plaintiff-appellant but the defendant-respondents finally refused to make the payment vide letter dated 14.8.1986 (Ex.P 11). The defendant-respondents, namely, Haryana Agro Industries Corporation raised a preliminary objection inter alia that the suit was barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of the plaintiff on 14.8.1986 and the present suit filed on 29.8.1986 is within time. 11. On the other hand, it is submitted by the learned counsel for the defendants that Ex.P11 is not an acknowledgement and hence the suit of the plaintiff merits dismissal being barred by time. It also merits dismissal because the last plaintiff should have filed the suit for recovery within three years i.e. By March, 1986 and the present suit filed on 29.8.1986 is barred by time. 12. I do not find any merit in the arguments of the learned counsel for the defendants. The generator set was installed and finally commissioned on 2.7.1983. Plaintiff had been requesting the defendants to make the payment and vide Ex.PIO plaintiff was informed that the matter regarding payment was under consideration and finally vide Ex.P11 dated 14.8.1986 plaintiff was informed that no payment was due by the defendants. Therefore, in my considered opinion, the cause of action accrued in favour of the plaintiff for the first time on 14.8.1986 i.e. When the defendants finally refused to make payment of any amount. Therefore, the suit filed by the plaintiff on 29.8.1986 is within time. 4. The aforementione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l have to be reversed. 5. Mr. Adish Gupta, learned counsel for the plaintiff-appellant has argued that the plaintiff-appellant has been insisting on the defendant-respondents for payment and has written a number of letters. He has referred to letter dated 7.12.1983 (Ex.P10) addressed to the defendant-respondents which was sent by the plaintiff-appellant in reply to, letter dated 25.9.1983 andia telegram dated 11,10.1983. According to the learned counsel, this letter admits the jural relations between the parties which is that of debtor and creditor. According to learned counsel, an inference can be safely drawn to the effect that the defendant-respondents, had acknowledged the liability to the plaintiff appellant, although it has sought time to release the payment. He has also drawn my attention to the column concerning subject in letter Ex.P.10 which clearly mentions purchase order with regard to generating set. In support of his submission, apart from relying on Section 18 of the Limitation Act, 1963 (for brevity, 'the Act') and the explanation appended to the section, learned counsel has placed firm reliance on a judgment of the Supreme Court in the case of Food Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in respect of any property or right. A perusal of the aforementioned provision would show that if before the expiry of the prescribed period for a suit in respect of any property or right, there is a written acknowledgement of liability in respect of such property or right in writing against whom such -right on property is claimed, then a fresh period of limitation is to be computed from the time when the acknowledgement was so signed. Explanation (a) appended to the section further shows that such an acknowledgement would be regarded as sufficient, though it may omit to specify the exact nature of the property or right or such an acknowledgement may assert that the time for payment was not ripe or it is accompanied by refusal to pay. According to the explanation, it is further clear that such an acknowledgement may be coupled with a claim to set off. The acknowledgement might be signed personally or by an agent. The aforementioned provision came up for consideration of the Supreme Court in the case of Food Corporation of India (supra) on which firm reliance has been placed by the plaintiff-appellant. Holding that in such cases of acknowledgment a liberal construction is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PAYMENT. Dear Sir, Please refer to your letter dated 25.9.1983 and a subsequent telegram received in this office on 11.10.1983 on the subject noted above. 2. I am to inform you that some points which need clarifications are under investigation. As soon as the matter is cleared we shall be in a position to release your payment. I hope this matter will be finalised within ten days. Yours faithfully, Sd/- Chief Engineer, for: Managing Director. A perusal of the aforementioned letter shows that the plaintiff-appellant has asserted its right to recover the specified amount in its letter dated 25.9.1983 and a subsequent telegram dated 11.10.1983. In reply to the aforementioned letter, the defendant-respondents have asserted by referring to the purchase order and their letters/telegram that some points which need clarification were under investigation. It was further recorded that as soon as the matter was cleared, they would be in a position to release the payment of the plaintiff-appellant with the hope that the matter would be finalised within 10 days. It is not disputed that on the date of writing letter Ex.P10, the suit was within limitation which was file ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
