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Indo International Ltd., rep. by its Managing Director, Chennai-1 and another v/s Continental Carriers Private Ltd., rep. by its Regional Manager, M.V. Bhat, Chennai-28

    C.R.P.Nos. 1667 and 1672 of 2002

    Decided On, 10 October 2003

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MRS. JUSTICE R. BANUMATHI

    Mr. D. Nellaiappan, Advocate for Petitioners. Mr. S. Vijayaraghavan, Advocate for Respondents.



Judgment Text

1. C.R.P. 1667/2002 : This revision arises out of the order of the Fast Track Court V, Chennai in I.A. 15/2002 in O.S. 4433/1999 allowing the petitioner under Order 16, Rule 6, C.P.C. filed by the Respondent/Plaintiff directing the Income-tax Department to produce the records.


2. C.R.P.1672/2002 : This revision is directed against the order of the Fast Track Court V, Chennai in I.A.28/2002 in O.S.4433/1999 allowing the application filed by the Respondent/Plaintiff under Order 8, Rule 9, C.P.C thereby granting leave to file the reply statement in the suit.


3. Both the revisions arise from out of the same suit involving connected points for consideration. Hence both the revisions were heard together and disposed of by this common order.


4. The revisions arise out of the following facts:


The plaintiff, acting as Carriers, in the course of their business, accepted Cargo from the defendants from time to time for the purposes of export. In respect of such Cargo handled by the plaintiff, on behalf of the defendants, Bills were raised and Running Account is being maintained by the plaintiff. The defendants delayed the payments due to the plaintiff inspite of several reminders. Hence the suit for recovery of Rs.5,36,161.84 together with interest and cost thereon.


5. Admitting the transaction but denying the suit claim, defendants have filed the written statement contending that they have been making payments from time to time to the plaintiff. But the plaintiff has not given credit to those payments. Inspite of repeated requests, plaintiff had not furnished detailed Statement of Account showing the amount due. If proper account is taken and credit is given to the payments made by the defendants, it will be clear that nothing is due to the plaintiff. Since the plaintiff has not sent the correct details of the Shipping Bill, the defendants could not fulfill their export obligations resulting in loss suffered by the defendants to the tune of Rs.5,17,899. In fact only the plaintiffs are liable to pay a sum of Rs.1,73,885. In the written statement defendants have also inter alia raised the plea of limitation that the suit claim is barred by limitation.


6. I.A. 15/2002 : Since the plea of limitation was raised in the written statement, Respondent/Plaintiff filed this application to summon the Income-tax Department to produce the petition schedule mentioned documents- Balance Sheet, Profit and Loss Account and Income-tax Returns for the years 1996-2001. According to the plaintiffs, in the Return of Income furnished by the defendants, the defendants have admitted the amount payable to the plaintiff in the column ?Sundry Creditors?. Since the In-come-tax Return is the Pu blic Document, maintained by the Income-tax Department, Respondent/Plaintiff has filed this application for the issuance of summons to the Income-tax Department to produce the petition schedule mentioned documents.


7. The defendants have objected to the petition on the ground that the plaintiff is not entitled to have the investigation commenced from out of the Balance Sheet and the Returns filed by the defendants to the Income-tax Department.


8. Considering the submissions of both sides, the learned Judge, Fast Track Court V allowed the application that the documents summoned are in the custody of the Public Office-Income-tax Department and that the documents are required by the plaintiff for proof of their case.


9. I.A.28/2002: The defendants have raised the plea in the written statement that the suit is barred by limitation. According to the Respondent/Plaintiff the defendants have acknowledged their liability towards the plaintiff and the balance due and payable to the plaintiff and seeking to explain the same by filing written statement. The Respondent/ Plaintiff has filed this application seeking leave to file the reply statement which was also resisted by the Revision Petitioners/Defendants.


10. Finding that the question of limitation is a mixed question of fact and law and in response to the plea of limitation raised by the defendants in the written statement the trial Court granted leave to the Respondent/Plaintiff to file the reply statement. In its view the filing of the reply statement would not in any way prejudicially affect the rights of the defendants.


11. Aggrieved over the allowing of the applications. Revision Petitioners/Defendants have preferred these revisions.


12. The learned counsel for the Revision Petitioners/Defendants submitted that as per the plaint documents, in respect of those transactions, Bills prior to 21.7.1994 and that the suit filed on 25.7.1997 beyond the period of three years is certainly barred by limitation. Submitting that there is no explanation as to how the suit is in time, if leave to file the reply statement is granted, it is contended that the same would give a new cause of action to the plaintiff explaining away the limitation and filling up the lacunae. Assailing the order of the trial Court, the learned counsel further submitted that the filing of reply statement would only to fill up the lacunae which the plaintiff had not set forth as to the limitation in the plaint.


13. Submitting that the purpose of filing the reply statement is only for the purpose of elucidation of facts which may not amount to a new cause of action, the learned counsel for the Respondent/Plaintiff submitted that the suit being a simple money suit, the filing of reply statement is necessitated in view of the plea of limitation adopted by the defendant. The learned counsel further submitted that the Income-tax records are called for only for the precise purpose of establishing that the defendants ha ve acknowledged their liability showing the plaintiff as ?Sundry Creditors? which cannot be denied by the defendants.


14. Considering the submissions of both the counsel and the impugned orders and other available materials the following points arise for consideration in these revisions:

(i) In the light of defence plea that the suit claim is barred by limitation whether the trial Court was right in calling for the documents from the Income-tax Department ?

(ii) Whether that order of calling for documents suffers from any illegality warranting interference ?

(iii) Whether the suit is barred by limitation and that there is no cause of action ?

(iv) Whether the application to receive the reply statement was filed belatedly and whether it amounts to providing for new cause of action as contended by the Revision Petitioners/Defendants ?


15. Point No.l: Admittedly the defendants had business dealing with the plain-tiffs. The Plaintiffs, being carriers, accepted the goods from the defendants for the purpose of export. Bills were raised on the defendants for export by which the amount had become payable to the plaintiff. In the course of its normal business, the plaintiff maintains Running Statement of Account. The defendants have not denied having any business dealing, but only deny their liability on the suit claim. According to the defendants, correct Statement of Account was not furnished by the plaintiff. In the written statement the defendants have raised three-fold defence:


(i) the plaintiff has not given proper credit to the payments made by the defendants;

(ii) only the plaintiff is liable to pay Rs.1,73,885;

(iii) that the suit is barred by limitation.


16. In the context of raising the plea that the suit claim is barred by limitation the Respondent/Plaintiff called for documents from the Income-tax Department- Balance Sheet, Profit and Loss Account of the defendants with the list of Sundry Creditors and the Return filed with Income-tax Department for the years 1996-2001. According to the Respondent/Plaintiff in the Return filed with the Income-tax Department, the defendants have acknowledged the amount payable to the plaintiff by showing the plaintiff in the list of ?Sundry Creditors?. If that be so, such statement before the Authority would certainly be a strong piece of evidence. In my view, in the light of the defence raised by the defendants, the trial Court was right in calling for the petition schedule mentioned documents from the Income-tax Department.


17 . In Swarna Paper Cutting Works and another v. M/s. Indian Express (Madurai) Pvt. Ltd., Madras , 1999 (3) CTC 167 : 1999 (3) L.W 845 R.Balasubramanian, J. was of the view that the enclosures to the Income-tax Return would be a strong piece of evidence. Whether that statement before the Income-tax Department amounts to acknowledgment of liability is certainly a matter of evidence to be gone into at the time of trial when the parties adduce oral and documentary evidence. Suffice it to point out that the Income-tax Returns and the enclosures thereon may be relevant piece of evidence for proving of suit claim.


18. The scope of enquiry in this revision is very limited-whether the trial Court was right in calling for the documents from the Income-tax Department. Under Section 101 of the Indian Evidence Act, burden of proof squarely lies upon the plaintiff who has approached the Court to prove his claim by adducing strong and positive proof. According to the plaintiff it maintains Running Statement of Account for its business dealing with the defendants and the documents to substantiate the plaintiffs claim is the relevant piece of evidence. The facts and circumstances justify the order of the trial Court ordering production of the documents from the Income-tax Department. No ground is made out calling for interference. Hence C.R.P. 1667/2002 is bound to fail.


19. Points 2 and 3:


The suit claim is based on Statement of Account. The Bills raised on the defendants are shown as documents 2 to 16 which are between 28.1.1994 - 8.11.1994. Thus the last Bill so raised is dated 8.11.1994. The suit was filed on 25.7.1997. Therefore on behalf of the Revision Petitioners/Defendants it is submitted that the suit was filed beyond three years and that the suit claim is barred by limitation at least with regard to the Bills 1 to 9 (28.1.1994 - 8.7.1994). We may straight away reject this argument since the suit claim is based on Statement of Account, the individual Bills raised on the defendants cannot be considered in isolation. The totality of the Bills and the Running Statement of Accounts and the evidentiary value of the same is to be adjudicated upon when the parties go in for trial. At this stage no view could be expressed on the argument that the suit claim is barred by limitation.


20. The plaint averments do not explain as to how the suit claim is in time. Coming to the question of absence of grounds reflected in the plaint to save the case from the law of limitation, my attention was drawn by the learned counsel for the plaintiff to the proviso to Order 7, Rule 6 of the C.P.C. It reads as follows:


?Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint.?


It is no doubt true that before the introduction of the said proviso by the amending Act 104/76, unless the plaint disclosed the grounds of exemption, it has been held that in the absence of any plea to that effect, it would not be open to the plaintiff to rely on the exemption. In view of the proviso referred to above, I am of the opinion that the position is different. The word used in the proviso is that the ?Court may permit? the plaintiff to claim exemption from the law of limitation on any ground which is not inconsistent with the grounds set out in the plaint. Thus only for the purpose of explaining the same, the trial Court has permitted the plaintiff to file the Reply statement.


21. As rightly submitted by the learned counsel for the Respondent/Plaintiff Order 7, Rule 6, C.P.C could have been straight away adopted by the plaintiff explaining the grounds of limitation. It is not inconsistent with the earlier pleading adopted. The application to receive the reply statement is filed only by way of abundant caution by allowing the plaintiff to file the reply statement. The learned Judge cannot be said to have committed any error to interfere with the same.


22. Under Order 8, Rule 9, C.P.C, it is always open to the Court to exercise its discretion to allow the defendants to file any additional written statement. This proposition could be imported to the filing of the reply statement also. Whenever a new plea is introduced by the defendant in the written statement, contingency of filing the rejoinder arises clarifying their position. Courts are vested with discretion to allow the plaintiff to file the reply statement explaining the position which is not inconsistent with the earlier plea adopted by the plaintiff.


23. At this juncture it is relevant to refer to the principles in receiving the Reply Statement/Additional Written Statement as summarised in Mulla?s C.P.C 16th Edition at page 2001:


?(i) The plaintiff cannot be allowed to introduce new pleas by way of filing rejoinder, so as to alter the basis of his plaint.

(ii) ln rejoinder, the plaintiff can be permitted to explain the additional facts which have been incorporated in the written statement.

(iii) The plaintiff cannot be allowed to come forward with an entirely new case in his rejoinder.

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/>(iv) The plaintiff cannot be permitted to raise inconsistent pleas so as to alter his original cause of action. (v) Application under Order 8, Rule 9 of the Code of Civil Procedure, cannot be treated as one under Order 6, Rule 17 of the Code of Civil Procedure, as both are contextually different.? 24. The Rule invests with the Court a wide discretion to allow the plaintiff to file the reply statement. Since the plea of limitation was adopted by the defendant in the written statement, certainly it is open to the plaintiff to explain the same. The learned trial Judge has rightly exercised the discretion in allowing the plaintiff to file the reply statement explaining the same. Certainly filing of reply statement does not amount to introducing new cause of action. 25 . In that view of the matter, in my view, the learned trial Judge was justified in granting leave to the plaintiff to file the reply statement. That order of the trial Court does not suffer from any illegality or material irregularity warranting interference. C.R.P. 1672/2002 is without merits and is bound to fail. 26. C.R.P. 1667/2002 : Therefore the order of the Fast Track Court-V, Chennai in I.A.15/2002 in O.S.4433/1999 is confirmed and this revision petition is dismissed. C.R.P. 1672/2002 : Therefore the order of the Fast Track Court-V, Chennai in I.A.28/2002 in O.S.4433/1999 is confirmed and this revision petition is dismissed. In the circumstances there is no order as to cost.
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