1 55 sa 468.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.468 OF 2010 M/s. Saurabh Poultry Farm & Anr. ..Appellants. Vs. Trimbak Hatcheris Pvt. Ltd. ..Respondents. Mr.Rahul Kadam for appellants. CORAM : K.K.TATED, J. DATED : 13/01/2011. PC: 1 Heard learned counsel for appellants. 2 This second appeal is preferred by original defendants against the concurrent findings of both the courts below: 3 A few facts of the matter are as under: The respondents/original plaintiffs filed Special Civil Suit No.220 of 2005 in the court of Civil Judge Senior Division, Nashik for recovery of sum of Rs.1,37,402/-. The respondents/plaintiffs is a private limited company having its registered office at Nashik. The respondents are supplier of one day old commercial broiler chicks to its various customers including the present appellants. On 7th August, 2001 the appellants placed an order with the respondents/original 2 55 sa 468.10.doc plaintiffs under which the appellants agreed to buy from the respondents one day old broiler chicks. During the course of their business there was an outstanding amount of Rs.84,296/- in the appellant’s account as on 2nd August, 2002. In spite of several reminders, appellants failed to pay the said amount and therefore, the respondents issued notice dated 3rd June, 2005 by registered acknowledgment due post (RPAD) calling upon the appellants to make a payment of an outstanding amount alongwith 21% per annum. The said notice was refused by the appellants. Thereafter, respondents filed suit for recovery of sum of Rs.1,37,402/- with interest on principal amount at the rate of 21% per annum from the 2nd August, 2002 till the date of suit with further interest on the principal amount at the rate of 21% per annum from the date of suit until judgment and realisation. 4 The appellants filed their written statement dated 5th June, 2006 and opposed the suit. On behalf of respondents Santosh Shamrao Patil, Dilip Punjaji Aher, Nitin Pradhan Gavaskar entered into the witness box. 5 Considering the evidence on record, the trial court by its judgment and decree dated 16th January, 2008 passed decree directing appellants to pay a sum of Rs.84,296/- to the respondents with interest at the rate of 9% per annum from the date of suit on the said amount till realization of the same. 3 55 sa 468.10.doc 6 Being aggrieved by the judgment and decree dated 16th January, 2008 passed by the trial court, the appellants preferred Civil Appeal no.51 of 2008 in the Court of District Judge, Nashik. In the said appeal the appellants raised point about limitation. The appellants submitted that the suit filed by the respondents was barred by limitation. The appellate court framed issue about the limitation of the suit and same is answered in favour of the respondents. The appellate court by its judgment and decree dated 2nd July, 2009 dismissed the Civil Appeal no.51 of 2008. 7 Being aggrieved by the concurrent findings of both the courts, the original defendants preferred present second appeal. The learned counsel appearing on behalf of appellants submits that the suit filed by the respondents was barred by limitation. He submits that both the courts erred on relying Exhibit-44 i.e. extract of account for the period from 7th August, 2001 to 2nd August, 2002. He further submits that the appellants never made last payment of Rs.1,000/- to the respondents on 2nd August, 2002. He further submits that the suit filed by respondents was governed by Article 14 of the Limitation Act and was as such barred. 8 He further submits that the Exhibit-44 cannot be considered as books of account as per the Evidence Act and 4 55 sa 468.10.doc therefore, both the courts erred in relying on Exhibit-44. In support of his contention he relied on the judgment in the matter of Central Bureau of Investigation vs. V.C.Shukla and others reported in AIR 1998 SC 1406 for the purpose of relying on document. The learned counsel appearing on behalf of appellants relied on judgment in the matter of Attadi Venketi vs. M/s. Bharatam Ramulu & Sons reported in AIR 1984 Orissa 226, in the matter of Atmaram Vinayak Kirtikar vs. Lalji Lakhamsi reported in AIR 1940 Bombay 158, in the matter of M/s. Vijaykumar Satischandra & Co. and another vs. M/s. Rajgopal Badrinarayan Malpani and another reported in 1996 AIHC 4163 and in the matter of Hindustan Forest Company vs. Lal Chand and others reported in AIR 1959 SC 1349, to support his submission of limitation. 9 I have gone through the paper book of Civil Appeal no.51 of 2008 produced by the learned counsel appearing on behalf of appellants which contains plaint, written statement, deposition of witnesses. Before deciding the second appeal on merits, I have to keep in mind that in second appeal there is limited scope to appreciate the evidence on record. In the second appeal, I have to decide pure substantial question of law. 10 In the present case, both the courts concurrently held that the suit filed by respondents was within a period of limitation. 5 55 sa 468.10.doc Both the courts relied on Exhibit-44 i.e. the extract of transaction between the parties from 7th August, 2001 to 2nd August, 2002. Admittedly, the witnesses on behalf of respondents specifically stated that they received sum of Rs.1,000/- from appellants on 2nd August, 2002. The appellants could not controvert the same in their cross-examination. Considering the payment of Rs.1,000/- on 2nd August, 2002, the suit filed by respondents was well within time. 11 About the applicability of Article 14 of the Limitation Act, both the courts categorically held that the suit filed by respondents was at foot of account and therefore, there is no question of invoking the Article 14 of the Limitation Act. The authorities relied by the appellants, in the matter of Central Bureau of Investigation (supra) is not applicable in the facts and circumstances of the present case. In that authority the Apex Court interpreted the words ‘books of account’ within the scope of 34 of the Evidence Act. The authorities relied by appellants for limitation i.e. Attadi Venketi (supra), Atmaram Vinayak Kirtikar (supra), M/s. Vijaykumar Satischandra & and Co. & another (supra) and Hindustan Forest Company (supra) are not applicable in the present case. On the face of record i.e. plaint and evidence produced by respondents, it is clear that the suit is governed by Article 1 of the Limitation Act. 6 55 sa 468.10.doc Therefore, these authorities are not applicable in the present facts and circumstances of the case. 12 In view of above facts and circumstances, I am of the opinion that no substantial question of law was involved in the present second appeal. 13 Appeal dismissed. (K.K.Tated, J.)