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2014 DIGILAW 1168 (PAT)

Muzaffarpur Re-rolling Mills v. Binod Kumar Mohta

2014-11-26

MUNGESHWAR SAHOO

body2014
MUNGESHWAR SAHOO, J.:–This First Appeal has been filed by the plaintiff-appellant against the part of the judgment and decree dated 18.04.1977 passed by the learned Additional Subordinate Judge, Muzaffarpur in Money Suit No.68 of 1972/04 of 1977 whereby the learned court below rejected the claim of the plaintiff partly regarding transaction of the year 1968 on the ground that it is barred by law of limitation. 2. The plaintiff filed the aforesaid money suit claiming for recovery of Rs.16,852/- with interest at the rate of 12% pendente lite and future. The plaintiff claimed this relief alleging that the plaintiff is a partnership firm and the defendants, who are members of the joint Hindu family, were known to the appellant and they were purchasing goods on credit from the plaintiff and the price was used to be paid by them according to their sweet will but always within one year of its purchase. They were also paying interest at the rate of 12% per annum. The defendants purchased goods worth Rs.1,12,232.79 and promised to pay price with interest at the rate of 12% but paid only Rs.1,00,153.84 as shown in Schedule-B of the plaint. The entire transaction is entered in the account book maintained by the plaintiff. The advocate notice dated 25.01.1971 was sent for payment of Rs.14,720.70 along with interest but it was not paid, therefore, the suit was filed. 3. The defendants appeared and filed contesting written statement taking various legal pleas. The main contention is that there was no agreement between the parties to pay any interest and the defendants were purchasing goods on cash payment. All the price of the goods purchased by defendant no.6 has already been paid either by way of cash payment or by way of returns of the goods or by setting off the price differences and after accounting the adjustment nothing stands due. They learnt about the irregularity in the plaintiff’s account and approached the plaintiff’s office for proper accounting and on verification the mistake was detected and it was found that Rs.2,157.71 was paid on 14.11.1968 concerning transaction no.11 and Rs.9,000/- was paid on 27.10.1969 concerning the transaction no.15. 4. On the basis of the aforesaid pleadings the learned court below framed the following issues:– (i) Is the suit, as framed, maintainable? (ii) Has the plaintiff got valid cause of action for the suit? 4. On the basis of the aforesaid pleadings the learned court below framed the following issues:– (i) Is the suit, as framed, maintainable? (ii) Has the plaintiff got valid cause of action for the suit? (iii) Is the suit barred by law of limitation and estoppel? (iv) Is the suit hit by the provisions of Section 69(2) of the Indian Partnership Act and under Order XXX rule 2 of the Code of Civil Procedure? (v) Is the suit bad for mis-joinder of parties? (vi) Is the plaintiff entitled to a decree, if so, for what amount? (vii) To what relief or reliefs, if any, is the plaintiff entitled? 5. The trial court after appreciating the evidences decreed the plaintiff’s suit partly and rejected the claim of the plaintiff regarding payment of price of the transaction dated 30.09.1968 on the ground that it is barred by law of limitation. 6. The learned counsel for the appellant Mr. Indrajesh Kumar raised only one question at the time of hearing of this First Appeal. According to the learned counsel, the trial court wrongly applied provision of Article 14 of the Limitation Act and held that the claim for transaction dated 30.09.1968 is time barred. Since there was agreement between the parties to pay the price within one year, the limitation will start running after expiry of one year according to Article 15 of the Limitation Act. Therefore, the learned court below should have applied Article 15 of the Limitation Act and if Article 15 of the Limitation Act is applied, the suit will not be barred by law of limitation because the suit has been filed in the year 1972, i.e. dated 10 July, 1972. Except this point no other point was raised by the appellant. 7. Nobody appeared on behalf of the respondents at the time of hearing of this First Appeal. 8. In view of the above submission of the learned counsel for the appellant, the only point arises for consideration in this First Appeal is as to whether for the claim of price for transaction dated 30.09.1968, Article 14 of the Limitation Act or Article 15 of the Limitation Act is applicable? 9. From perusal of the record, I find that the specific case pleaded by the plaintiff is that the defendants were known to the plaintiff’s firm and they were purchasing the goods from the plaintiff. 9. From perusal of the record, I find that the specific case pleaded by the plaintiff is that the defendants were known to the plaintiff’s firm and they were purchasing the goods from the plaintiff. The price of the goods was being paid by the defendant always within one year with interest at the rate of 12%. On the contrary according to the defendants, there was no such agreement that the defendants will pay interest at the rate of 12% and that the price will be paid within one year, rather the defendants were purchasing the goods on cash payment. With respect to this question as to whether there was agreement or no agreement between the parties, both the parties have adduced evidences. 10. P.W.1 himself has stated that there was no payment transaction-wise and the defendants were paying the price according to their will. This P.W.1 is the Managing Director of the plaintiff. This agreement according to the plaintiff was oral agreement that payment will be made within one year. On the contrary, the defendants denied this agreement. It is settled principles of law that there can be oral agreement also but in case of oral agreement the parties are required to prove strictly the oral agreement and the terms and conditions of the agreement. 11. It may be mentioned here that the possession of the goods was handed over to the defendants and there is no written agreement that within one year the payment will be made along with interest at the rate of 12% per annum. There is no denial of this fact that the goods regarding transaction dated 30.09.1968 were given in possession of the defendants. So far oral agreement is concerned, except this bald statement of P.W.1, there is nothing on record to show that any agreement was there. 12. Article 14 of the Limitation Act provides that the limitation period is three years from the date of delivery of the goods where no fixed period of credit is agreed upon. Admittedly in this case, the case has been made out by the plaintiff in the plaint but there is no such cogent evidence in support of the said fact. Article 15 of the Limitation Act will apply only if there is a fixed period of credit. Admittedly in this case, the case has been made out by the plaintiff in the plaint but there is no such cogent evidence in support of the said fact. Article 15 of the Limitation Act will apply only if there is a fixed period of credit. Since there is no fixed period in the present case, there is no question of application of Article 15 of the Limitation Act. In my opinion, therefore, Article 14 of the Limitation Act will apply. The finding of the trial court, therefore, on this question is hereby upheld. Since no other point has been raised, I find no merit in this First Appeal. 13. In the result, this First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to cost. ?