1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.4142 of 1999 Shittlakant Dubey .. Plaintiff versus Govind Amirchand Jain .. Defendant ... Mr. Umashankar Upadhyay for the plaintiffs. CORAM : D.G. KARNIK, J DATED :9th July 2009 P.C:- 1. Heard learned counsel for the plaintiff. None present for the defendant. 2. The suit was posted for hearing exparte as undefended suit as defendant had not filed written statement. By an order dated 15th June 2009 this court directed the plaintiff to file all original documents and affidavit of witnesses. Plaintiff has accordingly filed original documents and affidavit of witnesses. On perusal of the documents and the affidavit, following issue arises for my consideration. 2 i) Whether the suit of the plaintiff is barred by limitation? My answer to the issue is in the affirmative for the reasons indicated below:- 3. According to the plaintiff, the defendant represented to the plaintiff that he was the owner of a business and offered to sell to the plaintiff the business and received the part-payment of Rs.1,00,000/-. The plaintiff made further part payment of Rs.1,00,000/- to the defendant on 22.11.1995. According to the plaintiff, he further paid to the defendant a sum of Rs.5,00,000/- on 3rd January 1996. The defendant executed a writing attested by witnesses admitting receipt of Rs.7,00,000/- in all and promised to hand over and transfer the shop. As the defendant failed to comply the plaintiff has filed this suit for refund. The money was paid by the plaintiff to the defendant on or before 3rd January 1996. The present suit has been filed on 22nd June 1999 i.e. after lapse of three years. Plaintiff has not mentioned any details as to the date of the accrual of the action. He has not even mentioned when he came to know that defendant was not the owner of the business and that the plaintiff was deceived. In the circumstances, cause of action for the recovery of the suit must be presumed to have been arisen on 3rd January 1996 when 3 plaintiff made the last payment to the defendant. The suit filed after three years for recovery is therefore barred by limitation. 4. The suit is accordingly dismissed. In view of the fact that the defendant has remained absent, there shall be no order as to costs. (D.G. KARNIK, J)