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2017 DIGILAW 634 (JK)

Bhawani Trading Company v. State

2017-08-14

B.S.WALIA

body2017
JUDGMENT : 1. Claim of the petitioners for release of pending payment on account of cost of material supplied under APDRP and APDP Schemes in the year 2007 has been rejected vide report (Annexure-L) which was considered by the Government vide Annexure-M, primarily on the ground that the claims were time barred apart from dissatisfaction about the genuineness of the claims. 2. Learned counsel for the petitioners on the other hand by referring to Page No.22 of the paper book has contended that material was supplied by the petitioners’ Firm to the respondents on different dates starting from 26.09.2004 with last payment being in the month of March, 2007 as per details of supplies made as given in Annexure-A (at page Nos.16&17 of the paper book). The same reveal that substantial number of supplies were made vide aforementioned Bills. Learned counsel has also referred to Annexure-D dated 03.03.2009 i.e., communication addressed by the Chief Engineer, Elect. Maintt. & RE Wing, Jammu to the Executive Engineer, Sub-Transmission Division-II, Jammu conveying displeasure that despite lapse of substantial period of time, office of Executive Engineer had not furnished the factual detailed report and item-wise proposals for release of funds to clear the pending liability on account of the electrical material supplied by M/s Bhawani Trading Company and M/s K.K. Trading Company. 3. Learned counsel has also referred to Annexure-F dated 28.03.2011, another communication addressed by the Chief Engineer, Elect. Maintt. & R.E. Wing, Jammu to the Commissioner Secretary to Govt., Power Development Department, J&K, Jammu mentioning therein that the Executive Engineer had furnished a detailed report of the material supplied by the M/s Bhawani Trading Company alongwith GR Nos./P.O. Nos. with an amount of Rs.17,34,741/- having been shown as pending payment of the aforesaid account. Communication requested the Commissioner Secretary to release an amount of Rs.17,34,741/- to enable the Executive Engineer Sub-Transmission Division-II Jammu to clear the long pending payments. 4. Learned counsel also refers to status/compliance-report in OWP No.780/2010 particularly the contents of paragraph No.2 thereof, to contend that the supplies made were verified. Communication requested the Commissioner Secretary to release an amount of Rs.17,34,741/- to enable the Executive Engineer Sub-Transmission Division-II Jammu to clear the long pending payments. 4. Learned counsel also refers to status/compliance-report in OWP No.780/2010 particularly the contents of paragraph No.2 thereof, to contend that the supplies made were verified. Learned counsel contends that in terms of Section 19 of the Jammu and Kashmir Limitation Act where before, the expiration of the period prescribed for a suit in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the parties against whom such property or right is claimed, or by some person through whom he deprived title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. 5. Learned counsel contends that majority of the supplies having been made in the year 2007 and the acknowledgment of the Chief Engineer vide Annexures-D&F being dated 03.03.2009 and 28.03.2011 and the period of limitation for filing a suit for recovery on account of the supplies made being three years in terms of Article-52 of the 1st Schedule to the Limitation Act, claim could not have been rejected by the respondents on the ground of being time barred. 6. Section 19 of the J&K Limitation Act and Article 52 of the 1st Schedule to the Limitation Act are reproduced hereunder:- ‘19. Effect of acknowledgement in writing – (1) Where before, the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derived title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but, subject to the provisions of the Evidence Act (XIII of 1977), oral evidence of its contents shall not be received. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but, subject to the provisions of the Evidence Act (XIII of 1977), oral evidence of its contents shall not be received. Explanation I. – For the purposes of this section an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off or is addressed to a person other than the person entitled to the property or right. Explanation II. – For the purposes of this section, “signed” means signed either personally or by an agent duly authorizes in this behalf. Explanation III. – For the purposes of this section an application for the execution of a decree or order is an application in respect of a right.’ Article-52 of the 1st Schedule to the Limitation Act. 52. For the price of goods Sold and delivered where no fixed period of credit is agreed upon Three years The date of the delivery of the goods. 7. When the aforementioned provisions of law are viewed in view of the communications (Annexure-D&F) dated 03.03.2009 and 28.03.2011, it is apparent that qua the supplies made in the year 2007 (Annexure-D) would constitute an acknowledgement whereby a fresh period of limitation would begin to run. Period of limitation for filing a suit being three years for effecting recovery of orders supplies made, the same would extend for a period of three years from the date of acknowledgement, that means upto the year 2012. Second acknowledgement having been made vide Annexure-F in the year 2011, fresh period i.e., within the extended period of limitation, a fresh period of limitation would begin from the date of acknowledgement in the year 2011 and would extend upto the year 2014. 8. The petitioners having filed OWP Nos.780/2010 & 781/2010, the claim cannot be said to be time barred qua the supplies made during the year 2007. Accordingly, the finding in the impugned order of the claim being time barred is set aside. 8. The petitioners having filed OWP Nos.780/2010 & 781/2010, the claim cannot be said to be time barred qua the supplies made during the year 2007. Accordingly, the finding in the impugned order of the claim being time barred is set aside. Respondents are directed to consider the claim of the petitioners for release of payment on account of supplies made in the year 2007 in the light of the discussion made above by treating the claim with regard to the supplies made in the year 2007 being within period of limitation. Needless to mention, the claim would be considered on the basis of record and verification of the same in accordance with the rules, regulations and procedure applicable. In case, the petitioners are found entitled to the release of payments, then it would be open to the petitioners to make claim to the respondents for payment of interest on account of delayed payment and the same shall be considered in accordance with the rules and regulations applicable. With the aforementioned directions, writ petition along with connected MPs stands disposed of.