Order 3

Order Details: COPY OF ORDER
Pdf Text: CS No.2035/24
M/S SIDH AYURVEDA VS. M/S VA VARDAN AYURVEDA
20.01.2025
Present: Ld. Counsel for plaintiff (through VC).
Pass-over sought.
Be taken up again at 12:30 PM.
Divya Gupta
CJ-08 (Central)
20.01.2025/Delhi
At 12:38 PM
Present: None for plaintiff.
Matter is fixed for considertaion and for arguments on the point
of limitation. Despite pass-over sought in the morning, none has appeared on
behalf of plaintiff.
Be awaited for the plaintiff till 02:00 PM.
Divya Gupta
CJ-08 (Central)
20.01.2025/Delhi
At 02:15 PM
Present: Sh. Akshat Sharma, Ld. Counsel for plaintiff.
Arguments heard.
Ld. Counsel for the plaintiff has relied upon the following para
nos. 20 to 25 of the judgment of Hon’ble High Court of Delhi in RFA (OS)
13/2002, titled as ‘Bharath Skins Corporation Vs Taneja Skins Company
Pvt. Ltd.’ (date of decision: 21.12.2011), on the aspect of limitation:-
“20. In case of a running and non-mutual account
between the buyer and seller, when goods are
delivered by the seller to the buyer, the value of the
goods is debited in the debit column and when
amounts are paid by the buyer to the seller, they are
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entered in the credit column. The difference is
continuously struck in the column for balance. In
such a case, when the buyer defaults to make
balance payment, the seller s action is not for the
price of goods sold and delivered but for the	‟
balance due at the foot of an account. Thus, Article
14 would have no application in suits of recovery of
money due on a running and a non-mutual current
account between the buyer and seller.
21. In this regards, it is important to note the
following observations made in the decision reported
as (1849) 7 C. 3. 106 Dood v. Wigley when it was
observed:-
"Where goods are ordered of a tradesman on
the 1st of January and distinct orders for other
goods are given on the 2nd, 3rd, 4th, 5th, etc., if
from the previous dealings between the parties,
or from general usage, or otherwise, it is to be
inferred that it was contemplated by the parties,
that, in the event of the dealing continuing, the
several items should be included in the
monthly, quarterly, or yearly bills, the result of
such an arrangement, and the legal position of
the parties, seems to be this,-upon the delivery
and acceptance of the first parcel of goods,
delivered on the 1st of January, an entire
contract is created, and a complete cause of
action accrues, the tradesman, being) under no
engagement to sell other goods, or to give
credit beyond the price of the articles then
delivered : when, on a subsequent day, other
goods are delivered and accepted, a new
contract arises, not simply a contract to pay for
the goods then delivered, but a new entire
contract by which the tradesman waives his
existing right to payment off the goods delivered
on the 1st of January, and the purchaser
agrees to pay for both parcels as upon one
entire sale... After the successive waiver and
extinguishment of each preceding contract, the
only subsisting contract and cause of action ex
contractu will be the last."
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22. The observations in the decision reported as
(1856) 18 C.B. 325 Bonsey v Woodsworth are also
worthy of being noted; and are as under:-
"where a tradesman has a bill against a party
for any amount, in which the items are so
connected together that it appears that the
dealing is not intended to terminate with one
contract, but to be continuous, so that one item,
if not paid, shall be united with another, and
form one continuous demand, the whole
together forms but one cause of action and
cannot be divided."
23. The upshot of the above discussion is that Article
14 of the Schedule to the Limitation Act, 1963 does
not apply to suits for recovery of money due on a
running and current but a non-mutual account
between the buyer and seller i.e. an account of the
kind with which we are dealing.
24. There being no Articles in the Schedule to the
Limitation Act,1963 dealing with suits for recovery of
money due on running and current but non-mutual
accounts, in such circumstances, the residual article
viz. Articles 113 applies to such suits.
25. Under Article 113, the period for limitation for
filing a suit is three years and the same begins to run
when the right to sue would accrue when claim was
denied in response to the legal notice dated
26.06.1985 on 13.07.1985 but since `7,000/- was
paid on 13.07.1985 and 24.07.1985 (`2,000/- on the
former date and `5,000/- on the latter date),
limitation would commence from 24.07.1985. The
suit being filed on 02.09.1985, governed for
purposes of limitation by Article 113 the suit would be
within limitation.”
Relying upon the aforesaid, Ld. Counsel for the plaintiff has
submitted that it was a running and current but a non-mutual account between
the buyer and the seller and the limitation of 03 years for filing the suit as per
Article 113 of the Limitation Act, 1963, has to be counted from the date of
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refusal of the entire payment due by the defendant from the date of receipt of
legal notice of demand dated 13.03.2024.
I find force in the aforesaid argument of Ld. Counsel for the
plaintiff.
Issue summons for settlement of issues to the defendant on
filing of PF/RC as well as through Speed Post, returnable for the next date
of hearing. Plaintiff is directed to bring the tracking report of RC and Speed
Post along with an affidavit, on the next date of hearing.
In addition, let summons of the suit be also issued to the
defendant electronically through WhatsApp and email as provided by
the plaintiff on affidavit, for the next date of hearing. Plaintiff is directed
to provide mobile number as well as email id of the defendant along with
complete plaint and documents in PDF format and PF to the court staff
through official email id of this court.
Let steps be taken within seven days by the plaintiff.
Put up for appearance of defendant/ further proceedings, on
24.03.2025.
Divya Gupta
CJ-08 (Central)
20.01.2025/Delhi
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