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2004 DIGILAW 241 (PNJ)

Punjab State Electricity Board v. Jaspal Singh

2004-02-27

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging judgment and decree passed by the Additional District Judge, Amritsar dated 15.10.2003 reversing the view taken by the Additional Civil Judge (Senior Division), Amritsar vide his judgment and decree dated 17.10.2001 dismissing the suit of the plaintiff-respondent. 2. Plaintiff-respondent filed a Civil Suit No. 130 of 1994 alleging that the Municipal Corporation, Amritsar had floated tenders for purchases of 8 Air Circuit Breakers 1250 Amps, on 8.6.1988. The plaintiff-respondent being the sole proprietor of the firm M/s National Agricultural Supply Company, Court Road, Amritsar also submitted his quotations, which were found to be the lowest and were accepted by the Executive Engineer (Purchases)-defendant No. 2. Defendant-appellant issued an Indent Form and a letter dated 4.10.1988 for supply for the tender items. Three pieces of the tender items were supplied to the defendant-appellant on 5.5.1989 worth Rs. 71,700/- and price thereof was paid to him on 24.8.1989 against a bill. He supplied remaining five pieces which were worth Rs. 1,19,500/-. According to the condition laid down in the letter dated 4.10.1998, 90% of the payment was required to be made and the balance 10% payment was to be made within 30 days. Defendant-appellants having failed to make the payment, the plaintiff-respondent served a legal notice. Defendant-appellants paid a sum of Rs. 1,07,550/- towards 90% of the amount vide cheque dated 30.3.1991 but withheld the remaining amount. It was claimed that the plaintiff-respondent has become entitled to payment of interest on the entire amount of Rs. 1,19,500/- from 24.8.1989. Defendant-appellants failed to make the payment of Rs. 11,950/- despite issuance of legal notice resulting into filing of the suit for recovery alongwith recovery of interest of Rs. 35,745/- @ 15% p.a. 3. Defendant-appellants resisted the suit asserting that the same is time-barred and there was no cause of action with the plaintiff-respondent. On merits, the averments with regard to floating of tenders and submissions of quotations by the plaintiff-respondent were accepted. However, it was submitted that the plaintiff-respondent was required to deposit earnest money alongwith tender, which he failed. They also admitted that the tender items were supplied to them by the plaintiff-respondent and payment of 90% was to be made at the time of supply and remaining 10% was to be made within 30 days. However, it was submitted that the plaintiff-respondent was required to deposit earnest money alongwith tender, which he failed. They also admitted that the tender items were supplied to them by the plaintiff-respondent and payment of 90% was to be made at the time of supply and remaining 10% was to be made within 30 days. It was pleaded by the defendant-appellants that an agreement was required to be executed between the parties and security deposit was required to be made as provided by the Punjab Municipal Corporation Act, 1976. It was on that account that payment was withheld. It was further averred that balance amount of Rs. 11,950/- was also released vide cheque dated 19.5.1994, which was not accepted. The trial Court dismissed the suit of the plaintiff-respondent holding that the same was time barred. The aforementioned view taken by the Civil Judge was challenged by the plaintiff-respondent before the learned Additional District Judge, who gave finding that the suit was within limitation by taking the date of receipt of payment of Rs. 1,07,550/-, which was 8.4.1991 vide cheque dated 30.3.1991 and the suit having been filed on 7.4.1994 was held to be within limitation period of three years. The views of the learned Additional District Judge read as under:- "Ex.P7 is the copy of the receipt whereby payment of Rs. 1,07,550/- was received by the appellant on 8.4.1991 from the respondent/defendant through cheque No. 528212 dated 30.3.1991. The statement of account which was duly maintained by the appellant is Ex.P4 wherein also mention of this cheque was made within credit entry. Ex.P2 is the copy of the order whereby appellant was required to make supply of the goods of the total value of Rs. 1,19,550/-. Ex.P3 is the copy of the bill dated 24.8.1989 whereby supply of the goods was made. He can say that limitation for the recovery of the amount of goods commenced from 24.8.1989. Ex.P1 is the copy of the order which was placed by the respondent/defendant with the appellant for the supply of the goods. It was mentioned therein that 90% payment was to be made on the dispatch of the goods and balance amount was to be paid within 30 days. The goods were dispatched on 24.8.1989. On the basis of the document, 90% payment was not made at the time when the goods were received. Rather this payment was made on 8.4.1991. It was mentioned therein that 90% payment was to be made on the dispatch of the goods and balance amount was to be paid within 30 days. The goods were dispatched on 24.8.1989. On the basis of the document, 90% payment was not made at the time when the goods were received. Rather this payment was made on 8.4.1991. As such the limitation commenced from the date on which the payment of Rs. 1,07,500/- was received by the appellant from the respondent through cheque dated 30.3.1991. This part payment was made within the period of limitations i.e. within three years. This part payment amounts to acknowledgement of the respondent/ defendant to pay the balance amount which was still due from them. Therefore, the period of limitation commenced from 8.4.1991. This suit was instituted on 7.4.1994 i.e. within three years and thus within limitation. View taken by the learned Sub-Judge is palpably erroneous." 4. The learned District Judge also held that the plaintiff-respondent was entitled to interest @ 12% for the delayed payment from 24.8.1989 till the filing of the suit. Future interest @ 6% was also awarded on the whole amount till the date of recovery. 5. Mr. Sanjay Kaushal, learned counsel for the appellants has argued that the date of cheque i.e. 30.3.1991 should be taken as the starting point of limitation period of three years and not the date of the payment and, therefore, the approach adopted by the learned Additional District Judge is erroneous. According to the learned counsel, the suit having been filed on 7.4.1994 was clearly beyond the period of three years and the same should have been filed within three years. 6. After hearing the learned counsel, I am of the considered view that this appeal is devoid of any merit and is, thus, liable to be dismissed. It is evident that 90% of the payment was required to be made at the time when the goods were received by the defendant-appellants. This payment was made on 8.4.1991 by the defendant-appellants to the plaintiff-respondent, which was within the period of limitation of three years acknowledging the fact that 10% of the amount was still due. 7. Even otherwise, the plaintiff-respondent has issued a legal notice on 3.1.1994 under Section 396 of the Punjab Municipal Corporation Act, 1976 , which is mandatory for filing of the suit. 7. Even otherwise, the plaintiff-respondent has issued a legal notice on 3.1.1994 under Section 396 of the Punjab Municipal Corporation Act, 1976 , which is mandatory for filing of the suit. The period of two months over and above three years has to be granted to the plaintiff-respondent. According to Section 15(2) of the Limitation Act, 1963 (for brevity, the Act) the period of notice has to be excluded in computing the period of limitation in a suit or application. The aforementioned provisions reads as under:- "15. Exclusion of time in certain other cases.- (1) In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation.- In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted. (3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx." 8. A perusal of Sub-section (2) of Section 15 of the Act shows that the period of notice has to be excluded in which there is requirement of serving such a notice. In the instant case, Section 396 of the Municipal Corporation Act, 1976 mandates that two months notice is required to be issued before a person could file a suit. The aforementioned period has to be excluded if the period is computed by excluding the period of two months notice then even from the date of cheque i.e. 30.3.1991, the suit would be well within time as the same was filed on 7.4.1994. The aforementioned period has to be excluded if the period is computed by excluding the period of two months notice then even from the date of cheque i.e. 30.3.1991, the suit would be well within time as the same was filed on 7.4.1994. Therefore, there is no substance in the argument raised by the learned counsel. The appeal is misconceived and the same is liable to be dismissed. For the reasons recorded above, this appeal fails and the same is dismissed.