ash 1 fa-356.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.356 OF 2011 Mr. Deepak Keshwani. .. Appellant Vs Akai Consumers Electronics India Limited .. Respondent ­­ Shri S.S. Shah for the Appellant. ­­ CORAM ; A.S. OKA, J DATED : 29TH APRIL, 2011 P.C. . On 4th March, 2011, a notice of final disposal was issued by this Court. Though the office remark shows that the notice has been served and affidavit of service has been filed, none appeared for the Respondent on the last date. Even today, none appears for the Respondent. 2. Learned counsel appearing for the Appellant pointed out that an amount of Rs.2,89,020.98 ps has been deposited with the Trial Court on 29th March, 2011. 3. The Appellant­Defendant has suffered a decree in the suit filed by the Respondent. The Appellant failed to file written statement and accordingly the Trial Court passed an order to proceed with the suit ash 2 fa-356.11 without written statement. After having heard the submissions of the learned counsel appearing for the Appellant, I find that a case is made out for setting aside the decree. 4. The case made out by the Respondent is that as per the orders placed by the Appellant from time to time, the Respondent sold various electrical equipments to the Appellant. The Appellant had agreed to pay price within a period of 30 days. The suit is filed for recovery of the price of the goods sold. It appears from the judgment that the Trial Court called upon the Respondent to prove the claim in the suit and, therefore, the Respondent adduced the evidence. The Respondent examined himself. He was cross­examined by the Appellant. The claim of the Respondent appears to be based on the entries made in the books of accounts. One of the submissions canvassed is that the entries were not proved by placing the original accounts on record. Learned Trial Judge has, after considering the decision of the Apex Court in the case of Central Bureau of Investigation v. V.C. Shukla & Others ( AIR 1998 SC 1406 ), observed that there was no challenge by the Defendant to the entries in the accounts. The learned Judge discarded the argument that the Court had no jurisdiction in view of the clause in the agreement between the parties that the Court at Delhi alone will have jurisdiction. The learned Judge observed that there was no written statement in which there was any ash 3 fa-356.11 challenge to the territorial jurisdiction of his Court. 5. Learned Judge has also discarded the argument that the suit was barred by law of limitation by observing that the issue of limitation will have to be decided on the basis of the averments made in the plaint. The said finding is clearly erroneous. 6. Thus, going by the impugned judgment, the entries in the books of account were not proved by producing the original account books. The issue of jurisdiction clearly arose on the basis of the documents produced by the Respondent which was not decided. The learned Judge merely observed that clause conferring jurisdiction of Delhi Court was added just to ensure that the Defendant should not suffer any inconvenience. Learned Judge has not considered the provision of Section 3 of the Limitation Act, 1963 which enjoins the Court to consider whether the suit is within the limitation. The entire approach of the learned Trial Judge was erroneous. 7. However, interests of justice will require that the suit filed by the Respondent should not be thrown out and an opportunity will have to be granted even to the Respondent to adduce further evidence, if any. The Appellant has brought the decretal amount before the Trial Court. Therefore, by setting aside the impugned decree, the suit will ash 4 fa-356.11 have to be remanded to the Trial Court. There will not be any prejudice to the Respondent as the decretal amount has been already secured. 8. Hence, I pass the following order:­ (a) The impugned judgment and decree dated 30th September, 2010 is quashed and set aside and Special Civil Suit No. 557 of 2006 is restored to the file of the Trial Court. (b) It will be open for the Appellant to make an application to the Trial Court for setting aside the order to proceed with the suit without written statement. If such application is made, it will be considered on its own merits in accordance with law. (c) It will be open for both the parties to lead additional evidence, if a written statement is permitted to be filed. (d) The suit shall be decided on its own merits on the basis of the evidence which is already on record and the evidence which may be adduced after the order ash 5 fa-356.11 of remand. (e) The amount deposited by the Appellant shall be invested in a fixed deposit in any nationalised bank till disposal of the suit. (f) The order regarding disbursement/withdrawal of the said amount invested together with interest accrued thereon shall be passed at the time of disposal of the suit. (g) All contentions of the parties on the merits of the suit are kept open. (h) The Appeal is partly allowed in above terms with no orders as to costs. ( A.S. OKA, J )