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2006 DIGILAW 3303 (MAD)

B. N. Agarwal v. ATL Textiles

2006-12-01

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition filed against the order dated 13.4.2006, made in I.A.No.500 of 2005 in O.S.No:344/2004, passed by the learned District Munsif, Tiruppur.) The revision petitioner is the defendant in the suit. The respondent/company filed the suit for recovery of a sum of Rs.74,376/= against the petitioner herein. According to the plaintiff, the petitioner was working as a President in the company and he is liable to pay 75% of the telephone charges provided to his residence at the company's cost. The defendant in his reply to the lawyer's notice contended that he is not liable for such a claim as the entire amount is to be reimbursed as it was one of the perquisites given to him. The defendant also filed a written statement. While so, the defendant filed I.A.No.500 of 2005 to reject the Plaint itself as according to him, the suit is barred by limitation. 2. According to the petitioner he submitted his resignation on 21.9.1994, was accepted with immediate effect on 22.9.1994 and as per the terms and conditions of his appointment letter, he should have been discharged on 21.12.1994 i.e, on the expiry of three months period from his giving a notice or made payment of three months salary. But by letter dated 4.10.1994 the respondent company called upon the petitioner to pay a sum of Rs.57,606/= towards personal telephone call charges and also he gave a suitable reply to the said demand. Since he was not relieved he filed a suit claiming a sum of Rs.1,26,560.50 from the respondent/plaintiff on the file of the Additional District Judge No.2, at Jodhpur in Case No.218/1994. It is only as a counter blast the present suit has been filed by the respondent. According to the petitioner the period of three years limitation starts from the date of cause of action i.e., on the acceptance of his resignation on 22.9.1997. The respondent/plaintiff resisted the said I.A., stating that the repudiation for the demand of payment for the telephone charges was made by the defendant on 14.10.1994 which letter was received by the plaintiff on 18.10.1994 and thus from the date of repudiation, the suit has been filed within a period of three years and thus it is well within the period of limitation. 3. 3. The learned District Munsif, Tiruppur, on a consideration of the averments and the submissions made by the counsel appeared for both sides and on a perusal of the documents filed along with the suit dismissed the Interlocutory Application holding that the limitation raised in this case is to be decided only at the time of trial as some of the facts have to be proved to decide the said issue. Aggrieved over the same, the present revision has been filed by the defendant. 4. Learned counsel for the respondent/plaintiff vehemently contended that the learned District Munsif has rightly dismissed the I.A., filed for rejection of the Plaint, as the issued involved in this case is a mixed question of law as well as facts which could be decided only at the time of trial by letting in evidence. According to the learned counsel, the date or resignation, the settlement of accounts, and repudiation by the defendant are the three points to be decided to decide the question of maintainability of the suit. 5. Learned counsel further contended that for the demand made on 4.10.1994, the defendant by his letter dated 14.10.1994, which was received by the plaintiff on 18.10.1994 repudiated the liability and hence according to him, the period of limitation starts from 18.10.1994 and the suit has been filed within three years. Learned counsel also relied on Article 26 and Article 137 of the Limitation Act to claim that the plaintiff is exempted from the period of limitation. He also contended that as per the provision of Order 7, Rule 11 CPC only ex facie materials have to be taken into consideration and if the details adduced require further evidence, the plaint shall not rejected and during trial such facts could be analysed. 6. A perusal of Article 26 which provides for three years limitation shows that all the three ingredients found therein are not present in the facts of the instant case and hence the said Article will not be applied. So also Article 137 also provides for three years as limitation only stipulates that the period of limitation runs only when the right to apply accrues. As far as the present case is concerned, the plaintiff-company accepted the resignation of the defendant as on 22.9.1994 and discharged him from services. So also Article 137 also provides for three years as limitation only stipulates that the period of limitation runs only when the right to apply accrues. As far as the present case is concerned, the plaintiff-company accepted the resignation of the defendant as on 22.9.1994 and discharged him from services. Even in the Plaint it is only stated that "as on the date of the resignation of the defendant from the service of the plaintiff company a sum of Rs.74,376/= remained due from the defendant to the plaintiff". Hence the period of limitation starts on 22.9.1994 and the suit ought to have been filed on or before 22.9.1997. Even assuming for the sake of argument if the contention of the learned counsel for the respondent is accepted that the period of limitation starts from 18.10.2004 i.e., the date of receipt of repudiation letter from the defendant, it would mean that if there is no repudiation by the defendant, the plaintiff can institute the suit on an date and that there is no period of limitation for the suit filed based on accounts. 7. Even on merits of the claim, it may be noted that the letter of appointment does not contain any terms regarding the payment of the telephone bills. Further, from 7.11.1992 till 4.10.1994, the respondent-company has always been paying the telephone bills and accounted it as company's expenses and never called upon the petitioner to reimburse the same. It is also pertinent to note that the suit has been filed only as a counter-blast to the claim made by the defendant before the Court at Jothpur. 8. Taking into consideration of the above facts and circumstances and also the relevant Articles of the Limitation Act, I hold that the suit is barred by limitation as the same has not been filed within a period of three years from the date of cause of action. 9. In the result, this CRP is dismissed. Consequently, connected MP is also dismissed. No costs.