: 1 : sj-134-08=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 134 OF 2008 IN SUMMARY SUIT NO. 15 OF 2008 M/s. Swastik Tarpaulin Mfg. Ltd. .. Plaintiffs v/s. Jai Shiv Shankar Sahakari Sakhar Karkhana Ltd. .. Defendants ......... Mr. C.D. Abuwala with Ms. Smita Sawant i/b M/s. Dave & Co. for the plaintiff Mr. Shelke i/b M/s. Shelke & Co. for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 6th DECEMBER, 2010 P.C. : 1. The plaintiffs have instituted this suit for recovery of Rs. 29,43,797.69 along with interest @ 24% per annum. According to plaintiffs, they had installed a temporary shed at the property of the defendants as per the agreement initially for a period from 1st January, 2003 to 31st December, 2003 (hereinafter referred to as the suit shed). According to plaintiffs, plaintiffs and defendants entered into a fresh agreement allowing defendants to retain the suit shed for one more year on payment of charges. Plaintiffs claim that the defendants had : 2 : sj-134-08=.sxw paid from time to time monies for two transactions concerning two invoices namely invoice dated 10th April, 2003 for Rs.10 lakhs and odd amount and another invoice dated 1st December, 2004 for Rs.10 lakhs and odd amount. According to plaintiffs defendants did not pay the full charges which were due and that is how plaintiffs have instituted the present suit. 2. Defendants have raised the contention that the institution of the suit is beyond the period of limitation and plaintiffs have appropriated a sum of Rs.1 lakh towards suit transaction though they had no authority to do so as the said sum of Rs.1 lakh was sent in regard to supply of black HDPE sheet of 250 micron, size 140 x 30 ft. without eyelets. 3. Learned Counsel appearing on behalf of the plaintiffs pointed out letter at Exh.D sent by the defendants to the plaintiffs on 27th November, 2004 and submitted that as the defendants requested the plaintiffs to repair the temporary shed in November, 2004, it is clear that the defendants had the benefit of the shed in the subsequent year commencing from January, 2004 and the shed was to remain at site for the benefit of the defendants upto 31st December, 2004. 4. Learned Counsel for the plaintiffs took me through the various : 3 : sj-134-08=.sxw payments made by the plaintiffs and pointed out that the last payment made by the plaintiffs on or about 31st January, 2005 for Rs.1 lakh was appropriated towards part payment of two invoices namely Rs. 50,000/- towards first invoice and Rs.50,000/- towards second invoice and, therefore, institution of the suit is within the period of limitation. 5. Learned Counsel appearing on behalf of the defendants had taken me through the relevant documents in regard to an independent transaction which according to defendants was entered into between the defendants and the plaintiffs as regards supply of the material mentioned earlier. Plaintiffs had demanded from the defendants a sum of Rs.35,000/- by letter dated 25th December, 2003 towards cost of said suit shed. However, it was subsequently noticed by the defendants that plaintiffs have appropriated a sum of Rs.70,000/- towards the two invoices and that is how defendants paid to the plaintiffs a sum of Rs.1 lakh for purchase of the said material as the cost of the said material was Rs.1,05,000/-. Perusal of letter dated 25th December, 2003 (original of which was made available to the Court by learned Counsel for the defendants as the said letter was addressed to them) clearly goes to show that apart from installation of sheds at site of the defendants, plaintiffs had entered into an independent transaction i.e. supply of the said material and the total consideration payable for the said material : 4 : sj-134-08=.sxw was Rs.1,05,000/- but the defendants had sent Rs.1 lakh. Possibly a round figure was sent. The copy of letter dated 28th January, 2003 was produced which goes to show that the defendants had sent to them a sum of Rs.1 lakh. This shows that demand draft of Rs.1 lakh was sent to the plaintiffs towards cost of the said material. Reading the correspondence as aforesaid, I hold that between plaintiffs and defendants, a separate contract was arrived at as regards Sale of said material by the plaintiffs to the defendants and the cost of it, atleast to the tune of Rs.1 lakh was paid by the defendants. It will mean that a sum of Rs.1 lakh was received by the plaintiffs on or about 31st January, 2005 which plaintiffs appropriated towards the two invoices was contrary to the transaction as regards the said shed, in my view, plaintiffs had no authority to adjust the said amount of Rs.1 lakh towards two invoices. In view of this finding, one will have to ascertain as to when last part payment was done towards suit shed. It is noticed that defendants did sent last amount by 16th August, 2004. That means, there was no payment made by the defendants towards the suit transaction after 16th August, 2004. Assuming that the period of limitation got extended from 16th August, 2004 for a period of 3 years, suit for recovery of monies for the first transaction should have been filed within 3 years from 16th August, 2004. The present suit has been filed on 4th January, 2008. This will go to show that the suit so far as first : 5 : sj-134-08=.sxw transaction to recover balance amount would be beyond the period of limitation. 6. So far as the second transaction for the period 1st January, 2004 to 31st December, 2004, invoice has been raised on 1st December, 2004, interest was payable if monies are not paid within 7 days. Taking the date of the invoice as 1st December, 2004 or taking the date namely 1st January, 2005 being the day when the contract came to an end, the plaintiffs ought to have instituted this suit within 3 years from 1st December, 2004 or 1st January, 2005. Noting the fact that suit is filed on 4th January, 2008, institution of the suit for the recovery of hire charges for the second year would go beyond the period of limitation. 7. In view of the aforesaid discussion, defendants have made out a case that the suit transaction is barred by the law of limitation. As such, defendants would be entitled to unconditional leave to defend. Hence, following order is passed to dispose of the summons for judgment. ORDER (i) Defendants are granted unconditional leave to defend the suit. Defendants to file written statement in the office on or before 3rd February, 2011. : 6 : sj-134-08=.sxw (ii) Defendants to serve copy of the written statement upon the advocate for the plaintiffs within 10 days from filing of the written statement in the office. There shall be no order as to costs. (iii) Original letters which were made available to the Court for its perusal are returned to the learned Counsel. (R.Y.GANOO, J.)