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Ashok Arora v/s Dr. Nitin Misra & Others

    RFA. No. 367 of 2017

    Decided On, 18 July 2018

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE VALMIKI J. MEHTA

    For the Appellant: Tushar Singh, Advocate. For the Respondents: -----------



Judgment Text

Oral:

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the judgment of the Trial Court dated 24.8.2016 whereby trial court has dismissed the suit as barred by limitation.

2. The facts of the case are that the appellant/plaintiff claimed that he supplied/sold a Light B Laser Machine to the respondents/defendants.

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This machine was sold to the respondents/defendants as per the invoice dated 26.8.2005. The machine was installed at the place of the respondents/defendants at Pathankot on 27.1.2006. The appellant/plaintiff claims that invoice was of Rs.14,30,000/- of which only an amount of Rs.9 lacs was paid and therefore for the balance amount of Rs.5.30 lacs with interest the subject suit for recovery of Rs.18,45,000/- was filed. Interest is claimed in the suit at 11% from 27.1.2007. Part of the suit amount claimed, being a sum of Rs. 12 lacs, is the claim of the cost of a standby machine supplied.

3. The subject suit has been admittedly filed on 11.8.2016. In my opinion, once the sale was made and invoice drawn on 26.8.2005 and installation done in January, 2006, and that out of the total invoice of Rs.14,30,000/- , Rs.9 lacs was received upto 28.8.2006, then the suit for recovery of money had to be filed within three years from 27.1.2006 if not from the date of invoice of 26.8.2005. The suit which is filed on 11.8.2016 is therefore hopelessly barred by limitation and has been rightly dismissed as timebarred by the trial court.

4(i) Learned counsel for the appellant/plaintiff argues that the appellant/plaintiff had supplied a standby machine costing Rs.12 lacs to the defendants on 14.12.2006 but the same has not been returned and therefore the appellant/plaintiff has claimed a total sum of Rs.18.45 lacs with the sum of Rs.12 lacs being towards the standby/additionally supplied machine, and the balance payable on the earlier machine supplied as also interest @ 11% per annum from 27.1.2007, and therefore, it is argued that suit is within limitation.

(ii) I cannot agree with this argument urged by appellant/plaintiff because even assuming there was entitlement of the appellant/plaintiff to claim the price of the standby machine till 14.12.2006, the cause of action would have arisen on 14.12.2006 or definitely within a year or two when the standby machine was not returned. In any case, the complaint before the District Consumer Disputes Redressal Forum was filed by the respondents/defendants on 30.1.2008, and therefore by 30.1.2008 it became clear to the appellant/plaintiff that respondents/defendants would not be returning even the standby unit. The District Consumer Disputes Redressal Forum case in any case was dismissed on 16.3.2011. The present suit is not filed either within three years of filing of the consumer complaint by the respondents/defendants in the year 2008 or its dismissal on 16.3.2011, and when it had become clear to the appellant/plaintiff that even the standby unit is not being returned, and therefore the subject suit filed on 11.8.2016 was therefore definitely barred by time.

5. It is also to be noted that there does not arise any issue of application of Section 14 of the Limitation Act, 1963 for giving any benefit to the appellant/plaintiff inasmuch as there was no claim of recovery of money filed by the appellant/plaintiff in the District Disputes Redressal Forum case which was filed by the respondents/defendants alleging that defective machine was supplied by the appellant/plaintiff. It is conceded before this Court that in the reply filed by the appellant/plaintiff in District Disputes Redressal Forum case of the respondents/defendants, there is no money decree which was prayed to be passed or that the District Disputes Redressal Forum had held that it was not the proper court to pass a money decree in favour of the present appellant and against the present respondents. It is therefore held that appellant/plaintiff cannot take benefit of the period of time spent in the proceeding before the State Consumer Disputes Redressal Forum from 2.9.2011 to 22.11.2013.

6. In view of the above there is no merit in the appeal. Dismissed.
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