THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. NO. 115 OF 2001 Date: 02-02-2011 Between: M/s SETWIN, Hyderabad. .. Appellant And M/s Naag Advertising & Marketing, Hyderabad. .. Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. NO. 115 OF 2001 JUDGMENT: The defendant in O.S.No. 1635 of 1996 is the appellant herein. The suit was filed for recovery of a sum of Rs.1,31,436-77 paise, being the amount due from the defendant. 2. According to the case of the plaintiff, the plaintiff is a registered partnership firm undertaking advertisement and marketing, and the defendant is a society formed by the Government of Andhra Pradesh under Self-Employment Scheme. The defendant is said to have employed the plaintiff for releasing of advertisements in several newspapers and at the request of the defendant, several advertisements were given from December, 1991 in respect of which some payments were made and a sum of Rs.73,408-75 paise was found to be due by 18.11.1992. In spite of several demands and letters and also through the correspondence with the concerned Secretary to Government, no payments were effected. Ultimately, the plaintiff sent statement of accounts on 03.02.1994 and the employee of defendant has acknowledged the correctness and receipt of the balance sheet. Thereafter a legal notice was given to the defendant calling upon it to pay the amount and a reply was given by the defendant denying the liability and, as the amount was not paid, the suit was filed for recovery of the said amount. 3. The defendant filed written statement denying the allegations in the plaint and also finding fault that the services of the plaintiff are not satisfactory, that the claim made by the plaintiff is not correct, that the plaintiff has never given the notice and the alleged sending of the letters is not correct, that the suit is barred by time and, therefore, the defendant is not liable to pay the same. It is also pleaded that there was no liability to pay the interest. 4. Basing on the above pleadings, the following issues were framed for trial: 1. Whether the plaintiff is entitled for recovery of the suit amount with interest and costs as prayed for? 2. Whether this court has got territorial jurisdiction to try the suit? 3. To what relief? 5. On behalf of the plaintiff, P.W.1 was examined and marked Exs.A- 1 to A-37 and on behalf of the defendant, a Senior Assistant of the defendant was examined as D.W.1. and no documents were marked. 6. After considering the evidence on record, the lower Court decreed the suit on 23.10.2000 for the suit sum with costs and the future rate of interest at 12% per annum from the date of the suit till the date of realization. Aggrieved by the said judgment and decree, the present appeal is filed. 7. The points for consideration are: 1. Whether the defendant is liable to pay the suit amount? 2. Whether the suit is barred by limitation? 3. Whether the judgment and decree passed by the learned V Additional Senior Civil Judge, City Civil Court, Hyderabad is legal and sustainable? 4. To what relief? POINTS 1 to 4: 8. As can be seen from the evidence and the material contentions of both sides, it is not in dispute that the defendant has engaged the plaintiff for some advertising services and some payments were made by the defendant and ultimately, a sum of Rs.73,408-75 paise is said to be due. In fact, the plaintiff has to realize as per Ex.A-28, which is said to be a letter dated 17.11.1992, whereunder the Chairman and Managing Director of the defendant has informed the plaintiff that there was a personal discussion and there is delay in making payments for the bills towards advertisement charges and no sooner the funds are released by the Government, the amount will be paid. In fact, this was also followed by another letter dated 05.03.1993 under Ex.A-32 from the Commissioner and Secretary to Government to the plaintiff while adverting to the claim of the plaintiff to settle the same at an earlier date. As can be seen from the correspondence available on record under Ex.A-33 and other documents, the plaintiff has been making repeated demands to the defendant for payment of the money. But, at no point of time, any correspondence has emanated from the defendant denying the liability to pay the amount, except when the reply notice dated 22.11.1995 was given under Ex.A-35 for the legal notice dated 04.10.1995 under Ex.A-34 given by the plaintiff. Therefore, for a period of nearly three years, in spite of repeated correspondence and demands made by the plaintiff for payment of the money, the defendant had not denied the liability nor repudiated the liability to pay the amount. Therefore, there cannot be any doubt about the fact that the plaintiff has rendered services to the defendant and there is no reason to doubt the accounts filed by the plaintiff showing the amount due and more so, when the higher authorities in the Government also have accepted the statement and recommended the defendant to settle the amount. Therefore, from the evidence of P.W.1 and the other correspondence available on record, this Court has no doubt in mind that a sum of Rs.73,408-75 paise was due to the plaintiff as on the date, when the final account was looked into. 9. The point that was sought to be canvassed by the learned counsel for the defendant is that the suit was barred by time, since, even if Ex.A-28 letter dated 17.11.1992 is accepted to be true, the suit was filed on 01.10.1996, which is beyond the period of three years and, therefore, the suit is liable to be dismissed. In fact, to overcome this, the plaintiff has made a specific pleading in the plaint that a copy of the statement was acknowledged by the employee of the defendant on 03.02.1994, whereunder the amount due as Rs.73,408-75 paise was confirmed and acknowledged. Therefore, if the document under Ex.A-37 is taken into consideration, there cannot be any doubt that the suit is within time and, in fact, the lower Court has accepted this contention and decreed the suit. 10. Learned counsel for the defendant contends that the plea of this acknowledgment is very vague and the person, who has signed this acknowledgment, is not identified and not disclosed and, therefore, the lower Court has erred in accepting this contention. In fact, even in the reply notice under Ex.A-35, only a general denial of the allegations, made in para-3 of the legal notice, were made and there was no specific denial of the acknowledgment mentioned in para-4 of the said legal notice. In fact, even in the written statement also when this particular fact, which has got a bearing in the decision of the case, was pleaded, the defendant has not made any specific denial. Mere general denial is not sufficient and, when a particular fact, which has got a bearing for maintainability of the suit, is pleaded and when the defendant has not made a specific denial of the fact as per Order VIII Rule 5 of Civil Procedure Code, it shall be taken to be admitted by the defendant. Therefore, in view of the above provision of law, it is not open to the defendant to contend that the plaintiff has not proved the acknowledgment under Ex.A-37 and that the suit is barred by time. Even otherwise, the evidence of D.W.1 is also of not much help to the defendant, since he was not working during the time of the transaction and his evidence also does not disclose that Ex.A-37 acknowledgment was not made by any of the employee, who was in employment at that point of time. 11. Therefore, from the material on record, the defendant has not made a specific denial of the acknowledgment pleaded under Ex.A-37, nor the evidence of D.W.1 disputes the same, since he has also not questioned the same. Therefore, in view of the above circumstances, the defendant cannot now contend that the suit is barred by time and I have no hesitation in holding that Ex.A-37 is proved to be a genuine document between the plaintiff and the defendant, saving the period of limitation and the lower Court has rightly accepted the same. 12. So far as the claim for interest is concerned, learned counsel for the appellant contends that there was no agreement to pay the interest and, at any rate, payment of interest at 24% per annum pleaded by the defendant and granted by the lower Court prior to the suit is excessive and cannot be enforced. 13. Evidently, it is not a money transaction and even if there is no contractual obligation to pay the amount, but when the notice was given and liability was questioned, atleast from that date the defendant is liable to pay the interest. However, in this case, the defendant has got the benefit of services and most probably, the money, which was payable to the plaintiff, might have been received by the defendant from the Government and has retained the money. Therefore, in view of the above circumstances, I feel that the interest of justice would meet if the interest is granted at 12% per annum from 03.02.1994 till the date of decree on the sum of Rs.73,408-75 paise (Rupees seventy three thousand four hundred eight and paise seventy five only); and at 6% per annum from the date of decree till the date of realization. 14. With the above modification, the judgment and decree of the lower Court are confirmed. Each party is directed to bear their own costs. Accordingly, the appeal is allowed in part. ________________________ N.R.L.NAGESWARA RAO, J 2nd February, 2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A. NO. 115 OF 2001 Date: 02-02-2011 MR