IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 48 of 2007. Date of decision: 28.8.2009 M/s.Cargo Carriers, Custom Clearing And Forwarding Agents & anr. …. Appellants Versus The H.P State Electricity Board. ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellants: Shri Ashok Sood, Advocate. For the respondent: Sh.Baldev Singh, Advocate. _____________________________________________________ Deepak Gupta, J.(Oral) This Regular First Appeal is directed against the judgment of the learned District Judge (1), Shimla passed in Civil Suit No.13-CS/1 of 2005/2002 dated 22.12.2006 whereby the counter claim filed by the present appellants (hereinafter referred to as the defendants) has been rejected. Briefly stated the facts of the case are that H.P State Electricity Board (hereinafter referred to as the ‘Board’) had imported certain machinery which was lying at Bombay Dockyard. The work of transportation of the said machinery was given by the Board to the defendants 2 after inviting quotations. The defendants transported the consignment of the plaintiff on 3rd April, 1995. According to the plaintiff, the machinery was damaged. The plaintiff thereafter sent notices to the defendants and initiated proceedings before the District Consumer Forum, Shimla under the Consumer Protection Act, 1986. These proceedings were initiated on 26th April, 1997. Thereafter, the defendants appeared and filed counter-claim in the reply claiming that as against the amount of Rs.1,65,725/- due to them on account of transportation, only a sum of Rs.58,704/- had been paid and balance amount of Rs.1,07,021/- was due to the defendants from the plaintiff. The claim filed by the Board was rejected by the learned Consumer Forum on 24.12.2001 by holding that the controversy between the parties involved disputed and complicated questions of facts for which appropriate remedy was to file a Civil Suit. Thereafter, the present Civil Suit was filed by the Board on 1st April, 2002. The defendants were served and they filed their written statement-cum-counter claim on 26th June, 2003. The Civil Suit as well as the counter claim were dismissed by the learned Trial Court. The counter claim was rejected only on the ground that 3 defendants have filed an appeal. No appeal was filed by the Board and only the defendants have filed this appeal against dismissal of this counter claim. The only question which arises for consideration is whether the counter claim was within limitation. Sh.Ashok Sood, Advocate urges that the time spent in pursuing the counter claim before the learned Consumer Forum should be excluded in terms of Section 14 of the Indian Limitation Act, 1963. Even if for the sake of arguments, this plea is accepted then also it is apparent that cause of action arose in favour of the plaintiff on 3rd April, 1995 when the goods were transported. It is not clear on which date the counter claim was filed before the Consumer Forum, but since the Petition before the Consumer Forum was filed only on 26th July, 1997, obviously the counter claim could not have been filed before the said date. Therefore, even if the time taken up for filing of the claim before the Consumer Forum is excluded while computing the period of limitation, it is obvious that a period of two years, seven months and 23 days had already elapsed before the claim was filed before the Consumer Forum. The limitation for recovery of the amount is three years and, therefore, 4 even if the time spent before the Consumer Forum is to be excluded then also the suit/proceedings for recovery of the amount had to be filed within eight months and seven days of the disposal of the case by the Consumer Forum. The Consumer Forum decided the matter on 24.2.2001 and the counter claim was filed more than two years later in June, 2003. The counter claim obviously was not filed within limitation. Hence there is no merit in the appeal which is accordingly rejected. No order as to costs. August 28, 2009 ( Deepak Gupta ) (m) Judge