1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 619/2005 (Bharat Wamanrao Pawar vs. Managing Director, Jeejamata Sahakari Sakhar Karkhana Ltd.) -------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Shri A.S.Chandurkar, Adv. for appellant CORAM : C.L.PANGARKAR J DATED : 20 th OCTOBER, 2008. Heard counsel for the appellant. None appeared for respondent. 2. This second appeal has been preferred by the plaintiff who was unsuccessful in both the courts below. 3. The plaintiff had supplied the wire ropes to the defendant no.2. The ropes were worth Rs.1,84,180/- . The defendant had repaid certain amount towards the bill, but there was balance of Rs. 82,930/-. The goods were supplied by the plaintiff on 28.2.1990 as per purchase order dated 12.11.1989. The last repayment that was made by the defendant is dated 5.7.1990. The plaintiff urged that on 28.6.1994 the plaintiff informed the defendant that sum of Rs. 82,930/- is due to it from defendant no.2. In spite of such demand having been made, the defendant failed. The plaintiff, therefore, instituted the suit alleging that the cause of the suit arose on 12.11.1989 2 and 28.6.1994. 4. The suit was resisted by defendant no.2, mainly contending that the suit was barred by limitation. 5. The trial Court found that the defendant did purchase the goods from the plaintiff and that the plaintiff's claim was otherwise liable to be decreed, but for low of limitation. He found that there was no acknowledgment of the liability by defendant no.2 and that the suit could not be decreed. 6. The first appellate court concurred with the findings recorded by the trial Court and dismissed the appeal as the suit being barred by limitation. This second appeal is preferred against that order. 7. Shri Chandurkar, learned counsel for the appellant contended that the suit is within limitation mainly on account of documents i.e. statement of accounts said to have been sent by the defendant to the plaintiff, which is dated 30.7.1997 (Exh.37). He submits that the fact that the defendant sent an account maintained by it to the plaintiff in which the liability of the defendant towards the plaintiff has been mentioned is enough to draw an inference that there is an acknowledgment. The suit is apparently barred by limitation on account of the fact that the last payment was made in the year 1990 itself and the suit was instituted in the year 1997. 3 8. Shri Chandurkar, learned counsel for the appellant placed reliance upon the judgment reported in (2003) 2 SCC 15 [Syndicate Bank vs. Veeranna and others]. Their Lordships of the Supreme Court have held that unqualified acknowledgment of liability causes fresh period of limitation to begin and also gives cause of action to base claim thereon. The preposition cannot at all be disputed. Here, the so called acknowledgment cannot be taken into account for want of pleadings. Another decision reportrd in AIR 1953 SC 225 [Hiralal and ors vs. Badkulal and others] was placed before me. This decision has no bearing on the case at hand because the Supreme Court was dealing with case of accounts stated. The meaning of words 'account stated' means that the defendant accept the accounts maintained by the plaintiff, signs it and acknowledges the liability. However, such is not the case here. 9. Order 7, Rule 6 of C.P.C. says that when a suit is instituted after the expiration of the period prescribed by law of limitation, the plaint must show the ground for exemption from such law as claimed. If the pleadings of the plaintiff are seen, the plaintiff does not say that the suit is not barred by limitation on account of the fact that the defendant had sent a copy of the books of accounts maintained by it to the plaintiff showing the liability. Since there is no such pleadings, this document Exh.37 could not be taken into consideration and could not be 4 considered as such. However, this document could not be an acknowledgment in the strict sense as defendant disputes having sent such account. 9. In view of the fact that there is no pleadings that this particular document Exh. 37 saves limitation, this document has to be totally ignored. The suit is apparently barred by limitation. There is no substance in the second appeal. The same is dismissed in limine. JUDGE Rvjalit