C. R. No. 2930 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 2930 of 2010 Date of Decision : September 15, 2010 M/s Jindal Oil and Ginning Factory, Goniana Mandi, Bathinda and others .... Petitioners Vs. M/s Kunj Lal Sadhu Ram .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Rajan Bansal, Advocate for the petitioners. Mr.D. D. Bansal, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Defendants have filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 15.02.2010 (Annexure P-1) passed by learned Additional Civil Judge (Senior Division), Bathinda, thereby dismissing application moved by defendants/petitioners for treating issues relating to maintainability of the suit as well as limitation as preliminary issues. Issues no.2 and 4 in this regard, as shown by counsel for C. R. No. 2930 of 2010 2 the petitioners, are reproduced hereunder :- “2. Whether the suit is not maintainable in its present form ? OPD. xx xx xx xx 4. Whether suit is time barred ? OPD” Respondent has filed suit against the petitioners vide plaint Annexure P-2 for recovery of Rs.7,52,395/- i.e. Rs.5,53,243.01 being the principal amount and Rs.1,99,151.99 as interest thereon. The version of plaintiff-respondent is that the defendants had been purchasing narma cotton crop on credit from the plaintiff. Last purchase by defendants was made on 06.04.1998. It was also pleaded that defendant no.2, for and on behalf of defendant no.1 firm and other partners, also acknowledged the balance amount of Rs.5,53,243.01 on 01.04.2001. The suit has been filed on 04.01.2005. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners does not press the petitioners' prayer for treating issue no.2 as preliminary issue. However, learned counsel for the petitioners contended that the suit is prima facie barred by limitation even assuming the plaint averments to be correct at face value and therefore, issue no.4 relating to limitation is required to be treated as preliminary issue. C. R. No. 2930 of 2010 3 Learned counsel for the respondent contended that the defendants made acknowledgment of the due amount on 01.04.2001 and thereafter, the defendants in their own returns have been showing the balance amount due from them to the plaintiff every year till 01.01.2002 and therefore, the suit is within limitation. I have carefully considered the aforesaid contentions. Defendants' returns or balance sheets, wherein they allegedly depicted the due amount, cannot be treated as acknowledgment. On the other hand, the plaintiff pleaded last purchase by the defendants having been made on 06.04.1998 and last payment made by the defendants on 09.04.1998. Acknowledgment by defendant no.2 was also allegedly made on 01.04.2001. Even if the limitation period of three years is counted from 01.04.2001 i.e. the date of acknowledgment, the suit filed on 04.01.2005 is prima facie barred by limitation. Faced with the aforesaid situation, learned counsel for respondent contended that there was open, mutual and current account between the parties and therefore, the suit is within limitation. The contention cannot be accepted. The account between the parties could not be said to be open, mutual and current because according to plaintiff's version, amount was always allegedly due from the defendants to the plaintiff and it was never due from the plaintiff to the defendants. For an account to be open and mutual, both parties have to become debtors and C. R. No. 2930 of 2010 4 creditors from time to time, but in the instant case, according to plaintiff's version, plaintiff was always creditor and defendants were always debtors. Consequently, even taking the plaint allegations at face value, the account between the parties could not be said to be current, mutual and open one. For the reasons aforesaid, it is manifest that issue no.4 regarding suit being barred by limitation was required to be treated as preliminary issue because prima facie, according to the plaint allegations, the suit does not appear to be within limitation. The impugned order passed by the trial court is thus illegal and unsustainable. The trial court has refused to exercise jurisdiction, which vested in it for treating the aforesaid issue as preliminary issue. Accordingly, the instant revision petition is allowed and impugned order dated 15.02.2010 (Annexure P-1) passed by learned trial court is set aside and application Annexure P-4 moved by the defendants is allowed partly and the trial court is directed to treat issue no.4 relating to limitation as preliminary issue and to decide the same in accordance with law. September 15, 2010 ( L. N. MITTAL ) monika JUDGE