Judgment :- S.R. SINGHARAVELU, J. Suit is filed for recovery of a sum of Rs. 17,65,266.27 with interest at 24% p.a. on the claim amount of Rs. 10,64,926/- from the date of plaint till the date of realisation and for costs; 2. The averments found in the plaint are as follows: The plaintiff was in the export and import trade as Canalising agent under the Export Import policy of Government of India for a number of years. The plaintiff used to book orders of various parties abroad to customers who required to purchase shredded scraps from abroad for their own use. The terms and conditions will appear in the said standard offer letter which indicates the broad parameter of the contract and the terms thereof. In addition to the price for the quantity of goods purchased by the defendant, the defendant was liable to pay to the plaintiff Bank charges, stamp charges and service charges at the rate of 1.1% to 2% per tonne. After booking orders from the customers the plaintiff used to place firm orders on their foreign suppliers for supply of shredded scraps and after shipment was completed by the foreign sellers, the plaintiff sold the goods on high seas to the defendants. The defendant herein placed an order on the plaintiff for supply of 1100 + 1000 + 500 Mts. of shredded scraps at the value of US$ 199.95 per MT. It was an arrangement made that for the quantity booked by the defendant the plaintiff shall arrange bill of lading equivalent to the quantity booked by the Indian customers. The quantity of 1100 + 1000 + 500 MT arrived per Vessels MV GALAXY, MV BILLIE-FAY & MV EVEMAR respectively at the Port of Chennai and delivered to the defendant by issuing sale certificate. According to the arrangement, the defendant was to pay for the quantity of 1100 + 1000 + 500 MT of scraps delivered at the Port of Chennai at a price of Rs. 70,38,592/-, Rs. 63,98,720/- and Rs. 31,99,360/-. The defendant was liable to pay price of the very goods supplied to the defendant on 8.12.1995, 4.1.1995 and 12.6.1995 at the exchange rate of one US equivalent to Rs. 35.02, Rs. 34.69 and Rs. 34.23 in Indian rupee prevailing on that date. At the time of booking of the order Rupee-Dollar ratio was 1 US$ = Rs. 31,99,360/-. The defendant was liable to pay price of the very goods supplied to the defendant on 8.12.1995, 4.1.1995 and 12.6.1995 at the exchange rate of one US equivalent to Rs. 35.02, Rs. 34.69 and Rs. 34.23 in Indian rupee prevailing on that date. At the time of booking of the order Rupee-Dollar ratio was 1 US$ = Rs. 32 and on the expiry of credit availed of by the defendant the exchange ratio increased to one US$ = Rs. 35.23, Rs. 35.02, Rs. 34.69 in Indian rupee. The plaintiff had sent to the defendant their provisional invoice treating the Dollar Exchange value at Rs. 32/- per Dollar on 12.6.1995. Accordingly, the plaintiff was invoiced initially for Rs. 1,66,36,672/-. The price payable by defendant increased to Rs. 1,81,61,766/- by addition of an additional Rs. 15,25,094/- due to exchange variation. Besides that the defendant is liable to pay to the plaintiff Rs. 3,63,236/-towards service charges and Rs. 1,99,784/- towards Bank charges and stamp duty. The plaintiff caused a legal notice demanding the aforesaid amounts. The defendant is liable to pay interest at the rate of 24% per annum from 6.7.1996 to 31.3.1999 amounting to Rs. 6,99,848.27/- on the principle amount of Rs. 10,65,418/-. A decree may be passed against the defendant for a total sum of Rs. 17,65,266.27 with further interest at the rate of 24% per annum from the date of plaint till the date of realisation. 3. The averments found in the written statement are as follows: The suit claim is barred by limitation. The defendant is not liable to pay any amount to plaintiff. The price was fixed in Indian Rupees taking into consideration of 175 issuance days and fluctuation of rate of exchange. The letters of credit were for payment in Indian Rupees. Admittedly, the bill amounts were paid byway of postdated cheques and the same was realised within the grace period of 175 days. The guarantee undertaking letters did not whisper anything about the Dollar exchange fluctuation. There is no agreement to pay the difference in exchange rate. The suit transaction is outright purchase by the defendant from the plaintiff and so the defendant is not liable to pay any service charges. As the amount was paid within the stipulated period, there may not be any claim for penal interest. The suit is liable to be dismissed with costs as it is not maintainable. 4. The suit transaction is outright purchase by the defendant from the plaintiff and so the defendant is not liable to pay any service charges. As the amount was paid within the stipulated period, there may not be any claim for penal interest. The suit is liable to be dismissed with costs as it is not maintainable. 4. Based onthe above pleadings, the following issues are framed: • (i) Whether the plaintiff is entitled for recovery of a sum of Rs. 17,65,266.27 with interest at 24% p.a. as prayed. • (ii) Whether the defendant has to pay for the quantity of 1100 + 1000 + 800 MT of shredded scraps delivered at the Port of Chennai. • (iii) Whether the defendant is liable to pay the additional amount for increase of Rupee Dollar as per terms of contract. 5. Issue Nos. 2 and 3: The plaintiff is a Canalising agent in the export and import trade in respect of steels and scraps. The defendant herein placed orders for supply of 1100 + 1000 + 500 MT of shredded scraps at a value of US$ 199.96 per MT. The above quantity arrived per Vessels at the Port of Chennai and delivered to the defendant on 3.7.1995, 5.7.1995 and 27.5.1995 respectively. There was a grace period of 175 days given to the defendant for making payment of the amount mentioned in the bill of lading. The dates of bill of lading are 24.4.1995, 19.5.1995 and 12.61995. The 175th day expires after 14.10.1995, 19.11.1995 and 3.12.1995, on which dates payment was made by the defendant at the rate of 1 US $ = 32 Indian Rupees. The defendant has also paid the service charges and bank charges. The claim of the plaintiff is that the defendant has not discharged his dues in entirety simply because he has made payment on the 175 day only at the rate of one US $ = 32 Indian Rupees. The plaintiff requires the defendant to make the excess payment, which is the difference in the valuation of Indian Rupees according to the fluctuation of the dollar value. The plaintiff stated in para 17 of the plaint that the exchange rate of one US $ was equivalent to Rs. 35.02, Rs. 34.69 and Rs. 35.23 on the date of payment made by the defendant. The plaintiff stated in para 17 of the plaint that the exchange rate of one US $ was equivalent to Rs. 35.02, Rs. 34.69 and Rs. 35.23 on the date of payment made by the defendant. But, as he has paid only at the ratio of one US $ = 32 Indian Rupees, the defendant owes to pay the excess amount in pursuance of the fluctuation of the value of US Dollars. 6. Learned counsel for the plaintiff pointed out that even though Exhibits D-1 to D-3 are provisional Invoices, the final invoices are Exhibits P-4 to P-7. Exhibit P-9 is the statement of account. Learned counsel for the plaintiff also pointed out that there was offer and acceptance between the parties creating a concluded, contract; the offer was made under Exhibit P-1 dated 23.5.1995, which is a sale notice of the plaintiff; the acceptance of defendant was under Exhibits P-2 and P-3 dated 25.5.1995 and 1.7.1995, which also referred to Exhibit P-1 it is true that in the sale notice, behind the column “quantity to be taken from all of the three vessels taken together in equal quantities from each vessel”, it has been mentioned that Rupee - Dollar fluctuation to be on actuals. In the column mentioned as “Financial Arrangement” in the same notice, it had also been mentioned as follows: “… 1 USD the LC value … Rs. 32 may be taken for computing…” 7. Letters of credit under Exhibits D-4 and D-5 given by defendant through Indian Overseas Bank are the preliminary work for placing order of the goods for purchase. Therefore, it was explained that it has no relevance to the Issue before us and the learned counsel for the plaintiff again stressed upon the words “Rupee -Dollar fluctuation to be on actuals”, which are found in para 2 of Exhibit P-1, which is the sale notice. 8. Learned counsel for the defendant submitted that there is no clear term in para 2 of the sale notice making it imperative on the part of the defendant to pay Indian Rupees in accordance with the fluctuation of the value in US Dollars. 8. Learned counsel for the defendant submitted that there is no clear term in para 2 of the sale notice making it imperative on the part of the defendant to pay Indian Rupees in accordance with the fluctuation of the value in US Dollars. It was further argued that mere “Rupee - Dollar fluctuation to be on actuals” gives ambiguity as-to what was in the mind of both the parties to the agreement and therefore, according to him, there was no consonance ad idem and in the case, reliance cannot be placed upon that terms and conditions in order to get a decree as claimed in the suit. When payment is involved in para 2 and it has been vividly described as to what percentage of charges of inspection to be made against quantity of tonnes delivered, then during the course of description of liability of defendant to make payment, it has been mentioned as “Rupee -Dollar fluctuation to be on actuals”. In this context, it can be taken, if not inferred, that the fluctuations in the valuation of the dollar will have a bearing upon the liability of the defendant. To this extent, there is consonance between the parties. The sale notice under Exhibit P-1 more particularly deals only with the importing of certain goods by the defendant through the plaintiff. The words mentioned above that, “the fluctuation is to be on actuals” are only for fixing the liability of defendant in respect of the value of the goods delivered to him. It is not open to the defendant to say that had only the plaintiff paid the same value to the actual sum in abroad, he is entitled to ask for the same from the defendant. We are not here to find out the rationale behind the terms of the agreement, but we are here only to implement the terms as agreed by both the parties. It has also been established by the plaintiff that as on the date of 175th day, viz. 14.10.1995, 19.11.1995 and 3.12.1995, the value of one dollar was more than Rs. 32 and that was vividly mentioned in the plaint. There is also no dispute over the aspect because it is governed by Reserve Bank of India list. It has also been established by the plaintiff that as on the date of 175th day, viz. 14.10.1995, 19.11.1995 and 3.12.1995, the value of one dollar was more than Rs. 32 and that was vividly mentioned in the plaint. There is also no dispute over the aspect because it is governed by Reserve Bank of India list. Therefore, it becomes clear that the defendant is liable to make the payment, excepting the inspection and bank charges, which has admittedly been paid by the defendant already. Since the sale notice under Exhibit P-1 does not contemplate upon the rate of interest, I feel that instead of 24% claimed in the plaint, only 12% can be awarded. Issue Nos. 2 and 3 are answered accordingly. 9. Theentitlement of the plaintiff is questioned by the learned counsel for the defendant on the basis of limitation. Sections 18 and 19 of Indian Limitation Act deals with acknowledgement of liability and in what circumstances acknowledgement is to be interpreted against the debtor. According to the learned counsel for the defendant, there was grace time only upto 175th day, which falls on 14.10.1995, 19.11.1995 and 3.12.1995. The plaint was presented on 13.6.1999. According to the provisions of Limitation Act, which are dealing with the period of limitation in respect of debt or demand of money claim, it is mentioned as three years and the time will start running when the liability became due. The defendants liability in this case became due immediately after the expiry of grace time of 175th day. Those dates are mentioned as aforesaid. So, between 15.10.1995 and 4.12.1995, the time starts running. Even if it is construed as 4.12.1995, the suit ought to have been filed before 4.12.1998. But the suit was filed only on 13.6.1999. So, it was argued that the suit is time barred. Those dates are mentioned as aforesaid. So, between 15.10.1995 and 4.12.1995, the time starts running. Even if it is construed as 4.12.1995, the suit ought to have been filed before 4.12.1998. But the suit was filed only on 13.6.1999. So, it was argued that the suit is time barred. Learned counsel for the plaintiff submitted that there was running account in between the parties; that some amount in credit was available with the plaintiff; that they have adjusted the same on 19.6.1996 and 20.6.1996 and that therefore, the time, will start only thereafter making the suit filed on 13.6.1996, within the time in this connection, Section 60 of the Indian Contract and specific Relief Acts was relied upon which reads as under: “Where the debtor has omitted to intimate and there are no other circumstances Indicating to which debt the payment is to be applied, the credit may apply it, at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to limitation of suits.” 10. The above provision of law would enable the creditor, who is in possession of some amount of debt with him, to adjust the same with any lawful debt actually due and payable to him from the debtor even though its recovery is barred or not barred by the provisions of the Limitation Act. That enables the creditor to adjust the available amount with him, of the debtor, to adjust it even against a time barred debt due to him. But in this case, no consent of the defendant is available in respect of justifying the action of adjustment of plaintiff of the amount of defendant available with the plaintiff. It had been done so by the plaintiff unilaterally. Of course, the defendant has not raised his objection for such unilateral adjustment already made by the plaintiff in respect of the amount available with him. But under no stretch of imagination it could be treated as an acknowledgement of the defendant. It had been done so by the plaintiff unilaterally. Of course, the defendant has not raised his objection for such unilateral adjustment already made by the plaintiff in respect of the amount available with him. But under no stretch of imagination it could be treated as an acknowledgement of the defendant. It is so, because the acknowledgement from the defendant will carry a positive gesture on the part of the defendant or an implied consent on his part; whereas unilateral adjustment made by the plaintiff never involves even the implied consent of the defendant to bring a time barred debt within the parametre of the Limitation Act and there should be an acknowledgement from the defendants side which is lacking here. Further more, the said question is apart from what has been adjusted by the plaintiff. So, for any reason, I find the suit is out of time. The issue is answered against the plaintiff. 11. In the result, the suit is dismissed. No costs.