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Jammu and Kashmir Road Transport Corporation Vs. 3-a Enterprises and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Original Suit No. 5 of 1977
Judge
Reported inAIR1981J& K64
ActsJammu and Kashmir Limitation Act, 1995 Smvt. - Section 19; ;Evidence Act, 1872 - Sections 101 to 104
AppellantJammu and Kashmir Road Transport Corporation
Respondent3-a Enterprises and ors.
Appellant Advocate M.L. Bhat, Adv. for; J.N. Bhan, Adv.
Respondent Advocate R.N. Koul, Adv.
DispositionSuit dismissed
Excerpt:
- .....and the rent on account of this has been paid by the defendant? opd 9. did the defendants issue cheques as mentioned in para 4 of the plaint under mistake of fact and misrepresentation and the same were issued by incompetent person? opp 10. is mr. mohd maqbook, the manager of the defendants and in his capacity as such he addressed the plaintiff a detailed account of supply of vehicles by the plaintiff and he desired that the bill for amount due be sent to the defendants? if so, what is its effect on the suit? opp. 11. in case the foregoing issues are proved in favour of the plaintiff; how much rent is due to him from the defendants? opp. 12. to what amount of interest is the plaintiff entitled? opp. 13. are defendants 2 and 3 partners of defendant no. 1 opp 14. to what relief.....
Judgment:

G.M. Mir, J.

1. This is a civil suit for the recovery of Rs. 1,15,000/- from the defendants the basis being that the plaintiff has been supplying trucks to the defendants' firm for use in its Undertaking at Gantamulla, Barmulla, to execute some works there. The plaintiff's suit was that the defendants used the trucks of the plaintiff from 6-9-73 to 22-6-1974 and the total hire of vehicles during this period came to an amount of Rs. 1,41,000/-. The defendant, however, paid Rs. 6000/- as an initial payment. Subsequently defendant issued a cheque for Rs. 30000/-which was cashed by the plaintiff. Thus the total payment made came to Rupees 35,000/-. The defendant then again issued two cheques on Bank of India, one for Rs. 30,000/- and the other for Rs. 50,000/-, the first cheque was dated 19-3-1974 and the 2nd was dated 19-8-1974. Both these cheques on being presented for payment were dishonoured. The cheque for Rs. 30,000/- is Annexure-A, attached with the plaint but with regard to the other cheque for Rupess 50,000/- it was said that the same was not available with the records of the plaintiff. It is claimed that the plaintiff informed the defendant that both the cheques have been dishonoured but the defendant made no payment up to the date of the filing of the suit. According to the plaint, the total amount of hire against defendants came to Rupees 1,41,405/-on which payment of Rupees 36000/-has been made by the defendant, thereby leaving a balance of Rupees 105495/- against the defendant-firm. The plaintiff has allowed Rs. 9,000/- as additional payment and thus the net actual balance against the defendant, according to the plaintiff, came to Rupees 96,495/-. The plaintiff issued registered letters and made several requests for the payment of the balance to the plaintiff but of no avail. The plaintiff has further claimed Rs. 19000/- as interest on. the actual balance of Rs. 96,495/- and have thus filed a claim for Rs. 1,15,495/- plus interest from the date of the filing of the suit up to the date of the decree and also have prayed for the costs. It has been alleged that defendants 2 and 3 are partners of defendant No. 1, M/s. 3-A. Enterprises, Srinagar.

2. In their written statement, the defendants stated that the plaintiffs supplied vehicles to them up to 22-2-77 only and that the total hire up to that date had been paid to the plaintiff and there was no balance with the defendants. Some other points were also raised in the written statement and on 11-7-77, the following 14 issues were framed in the case :

1. Is the suit in the present form not maintainable? OPD

2. Is the suit bad for misjoinder and non-joinder of causes of action? OPD

3. Is the suit bad for misjoinder and non-joinder of the parties? OPD

4. Is the suit of the plaintiff barred by Limitation? OPD

5. Has the Govt. Transport Undertaking been converted into J & K Road Transport Corporation from 6-9-1976 and all the assets and liabilities of the Undertaking have been transferred and taken over by the plaintiff Corporation? OPP.

6. Are the defendants liable to Day rent of the vehicles supplied by the plaintiff at the prescribed rate OPP.

7. Did the plaintiff supply vehicles -and did the defendants use these vehicles of the plaintiff up to 26-6-74 and the total rent of the vehicles so supplied comes to an amount ofRs. 1,41.495.00 and on this the defendants have paid in all Rs. 36000/-? OPP

8. Did the plaintiff supply vehicles only up to 22-2-1976 and the rent on account of this has been paid by the defendant? OPD

9. Did the defendants issue cheques as mentioned in para 4 of the plaint under mistake of fact and misrepresentation and the same were issued by incompetent person? OPP

10. Is Mr. Mohd Maqbook, the Manager of the defendants and in his capacity as such he addressed the plaintiff a detailed account of supply of vehicles by the plaintiff and he desired that the bill for amount due be sent to the defendants? If so, what is its effect on the suit? OPP.

11. In case the foregoing issues are proved in favour of the plaintiff; how much rent is due to him from the defendants? OPP.

12. To what amount of interest is the plaintiff entitled? Opp.

13. Are defendants 2 and 3 partners of defendant No. 1 OPP

14. To what relief the plaintiff is entitled? OPP

3. Before I proceed further, I may say that in my view the onus of issue No. (9), which has been shown on plaintiff, must have been shown on defendants and in this view, the learned counsel for the defendants agrees with me and as such, the onus to prove issue No. 9 should be considered on the defendants and not on the plaintiff.

4. The plaintiff led evidence and produced 5 witnesses namely, Jawahar Lal Pandita, Abdul Rashid Poshkar Nath, Gh. Nabi Shah and Section Jai Singh.

5. Briefly stated the above mentioned witnesses have deposed as under :--

Jawahar Lal has stated that he is a Senior Assistant in the plaintiff's department and that the plaitniff supplied vehicles for transport of material at the prescribed Government rates to the defendants. He received Rs. 6000/- from the defendants on this account.

Abdul Rashid is also an employee of the plaintiff. He stated that the defendants were supplied trucks by the plaintiff and when the plaintiff's vehicles used to return from the day's duty, he used to prepare their GR. Bills. Duringthis time 9 trucks were supplied by the department to the defendants. According to him, at that time total hire recoverable from the defendants was Rs. 60,430/- while the payment made by the defendants till that time was Rs. 68,840/-.

Poshkar Nath is also an employee of the plaintiff. He was holding the post of booking clerk from 26-3-1974 to 18-8-1974. During this period 444 trucks were supplied to the defendants. The defendants issued a cheque for Rupees 50,000/- to the plaintiff which on being presented in the Bank was dishonoured, During this period, according to him, total hire for the trucks supplied to the defendants came to Rs. 68,905/-.

Gh. Nabi Shah is also an employee of the plaintiff. He was working as Traffic Manager in the year 1974, During his time defendants took on hire the vehicles of the department. Section Jai Singh has stated that he was working in the department in 1973-74 as Traffic Manager, GTU which was converted into Jammu and Kashmir R. T, C, in 1976. He has further stated that it was before he was on that post that the supply of trucks had begun to the defendants. A cheque issued by the defendants for Rs. 50,000/- was dishonoured. According to him the balance due from the defendants, to the plaintiffs is Rs. 96,495/-.

6. The defendants were given several opportunities to produce evidence but as they failed to do so, their evidence came to be closed, by virtue of an order of this Court dated 12-6-1979. The plaintiff by virtue of the same order was permitted to examine Transport Commissioner as its witness but Mr. Bhan, who appeared for the plaintiff on the next date i. e. 19-7-1979, Rave up this witness and by order dated 10-8-1979, the suit was ordered to be listed for arguments.

7. Mr. Bhan has submitted his arguments in writing.

8. I have gone through the written arguments and have heard the learned counsel for the defendants, Mr. R. M. Koul at length.

9. The main point raised by Mr. Koul. was that the suit having been filed on 23-2-1977 in this Court was hit by the provisions of the Limitation Act especially by Article 50 of the Schedule to the Limitation Act. His contention was that for every vehicle supplied on hire, the hire becomes payable for that vehicle from the date/day it was taken on hire. His contention, therefore, was that as admitted by the plaintiff, supply of vehiles had begun from 6-9-1973 and continued up to 22-6-1974. He contended that whole of the hire for the particular vehicles that do not fall within 3 years from the date of taking it on hire are hit by the provisions of Article 50 of the Schedule to the Limitation Act, and, therefore, are time barred and could not be claimed nor any decree could be passed in law with regard to those items.

10. From the perusal of the arguments submitted by Mr. Bhan, it appears that he was conscious of this objection. He has stated that cheque for Rs. 50,000/- having been issued on 19-8-1974 by the defendants and another cheque issued a few month earlier, for Rs. 30,000/- having been dishonoured (both these cheques out of which cheque for Rs. 30,000/- was not forthcoming but cheque for Rs. 50,000/-had been attached with the plaint) show that defendants acknowledged the debt oi the plaintiff and as such the provisions of Section 19 of the Limitation Act. were applicable and the whole of the amount was payable to the plaintiff. The contention, however, has been strongly countered bv the learned counsel for the defendants. In this view the provisions of Sections 19 and 20 of the Limitation Act were clear as to what was meant by acknowledgment and how it is made and what effect it will have on the transactions between the parties. According to him, an acknowledgment of a liability in respect of any debt or right has to be made in writing signed by the party against whom such property or right is claimed or by some person through whom he derived title or liability and that such writing should have come into existence before the expiry of the period prescribed for a suit under the Limitation Act, He contended that firstly the cheque for Rs. 50,000/- allegedly issued by the defendants has not been proved to have been signed by any partner of the firm or by any person authorised by the firm to sign such cheques. According to him, the requirements of an acknowledgment in lawhave not been fulfilled in the instant case because the plaintiff had failed to establish either through oral evidence or by any document that the cheque in question was in fact issued by a Managing Director of the firm. In this connection he further said that even if it may be presumed for the sake of argument that the cheque in fact was issued yet it would not bind the defendants in any way as the cheque in question has been according to the plaintiff dishonoured and it was the view of a large number of High Courts in India that if a cheque was issued but was dishonoured and the payment was refused, the cheque itself could not be regarded as an acknowledgment of debt. In this connection he referred me to AIR 1956 Bom 553 and AIR 1971 Pat 278, In these judgments it has been laid down that a cheque which has been dishonoured could not be held to be an acknowledgment of a liability and would not as such amount to an acknowledgment as required under law. This view has also been upheld in AIR 1967 SC 1118, wherein the following appears: (at P. 1123)

'But there can in our opinion be no doubt that where a post-dated cheque is accepted conditionally and it is honoured, the payment for purposes of Section 20 of the Limitation Act, can only be the date which the cheque bears and cannot be on the date the cheque is handed over, for the cheque being postdated, can never be paid till the date on the cheque arrives.'

This view has been expressed in AIR 1956 Bom 553 which runs as follows:--(at p. 554)

'There is no acknowledgment of liability merely by giving a cheque which is dishonoured, and a cheque which is dishonoured cannot be regarded as part payment within the meaning of Section 20. Limitation Act.'

In AIR 1971 Pat 278, the following appears (at p. 279):--

'The reasoning can be easily appreciated, inasmuch as in the event of the cheque being dishonoured there is no payment at all either of the part of debt or the whole of it, with the result that the debt in question continues to exist. The opening words of Section 20 themselves indicate that there must be a payment and then only the effect of it has to be taken into account for thepurpose of determining the period of Limitation.'

11. Viewing this case in the circumstances of the above referred to judgments, it was obvious that the cheque for Rs. 30,000/- and another for Rupees 50,000/- having been dishonoured, the dishonouring thereof would not amount to an acknowledgment within the meaning of Section 19 of the State Act. And as such the period of limitation could not be extended. This, therefore, would leave us to find out whether any item was within the period of limitation of three years as provided under Article 55 of the Schedule to the Act. The plaint is silent in this regard. It has not been categorically stated as to which items were within 3 years of the period of limitation and which were not so. It is, however, understandable that the plaintiff would not have said so in the plaint as its claim was for the recovery of the whole of the amount on the basis of an acknowledgment of the defendant for payment of the debt. I have been assisted by the learned counsel for the defendants, Mr. Koul, in trying to find out as to which items could be held to be within time, i. e. within 3 years.

12. There are some items which if proved may be held to be within the period of limitation.

13. From a perusal of the plaint, I am sorry to say that it does not appear as to what was the daily hire fixed per vehicle with the defendants nor any evidence has been led by the plaintiff to establish this fact nor there was any averment about the rate of interest nor any evidence has been led to show as to what reasonable rate of interest had to be calculated on the arrears.

14. In view of this discussion, the issues are disposed of as follows:--

Issues Nos. 1 to 3 decided against the defendants as not pressed.

Issue No. 5: decided in favour of the plaintiff.

Issue No. 6: It has not been established by the plaintiff as to what was the prescribed rate for the hire of the vehicle. It has not even proved that the defendants had to pay some arrears of rent. The issue is, therefore, decided against the plaintiff.

Issue No. 7: Though it has been established that the vehicles used by thedefendants were supplied by the plaintiff vet it has not been established that the total hire came to Rupees 1,41,495/-. It has, however, been established that the defendants paid Rupees 36,000/- to the plaintiff. The issue is thus, partly decided against the defendants and partly in favour of the plaintiff.

Issue No. 8: This issue has not been pressed.

Issue No. 9: not proved, and decided against the defendants in part as it has not been established that the cheques were issued by incompetent persons.

Issue No. 11: On the evidence led by the plaintiff and the documents produced, no amount or hire/rent seems to be in arrears recoverable from the defendants. The issue is, therefore, decided against the plaintiff.

Issue No. 12: No evidence has been led to show as to what amount of interest was due to the plaintiff. The issue is, therefore, decided against the plaintiff.

Issue No. 13: Not pressed.

Issue No. 14: In view of the above discourse, it is held that the plaintiff has failed to establish its claim for an amount of Rs. 1,15,000/- It has also failed to establish the rate or amount of interest. The suit is also hit by the provisions of Article 50 of the Schedule to the Limitation Act

15. The suit is, therefore, dismissed, but no order as to costs.


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