Delhi District Court
M/S Excelsior Ink Company vs Add Service on 28 February, 2025
In the Court of Shri Ashutosh Kumar, District Judge (Commercial
Court)-01, Tis Hazari Courts, West District, Delhi
CS (COMM.) No. 86/2022
CNR No.DLWT010009542022
In the matter of :
M/s. Excelsior Ink Company
Through its Proprietor
Sh Satinder Juneja
Having Registered Office at:
HR-9, Gali No. 10, Anand Parvat,
Ind. Area, New Delhi 110 005
............Plaintiff
Vs.
ADD Service
Through its Proprietor/
Partner/Director/Authorized Signatory
Vishal Gupta
Office : 114 B, Bhardwaj Office and Godown
Mansa Ram, Peeragarhi,
New Delhi 110 087
..........Defendant
Date of Institution : 01-02-2022
Date of hearing of arguments : 28-02-2025
Date of decision : 28-02-2025
Ld. Counsel for Plaintiff -Sh Bharat Bhushan
Ld Counsel for Defendant - Sh Rajeev Shukla
JUDGMENT
CS (COMM.) No.86/22 Excelsior Ink Company Vs ADD Service Page No.1 of 20
1. Present suit is filed by the plaintiff Satinder Juneja, proprietor of
M/s. Excelsior Ink Company, for recovery of an amount of Rs.
7,14,400/- alongwith pendente lite and future interest @ 18% per
annum & damages due out of invoices raised towards goods
supplied by the plaintiff till realization alongwith costs of the suit,
against the defendant Vishal Gupta, who is the proprietor of ADD
Service.
2. It is the case of the plaintiff that plaintiff is engaged in the
business of manufacturing of ink and the defendant knowing fully
well about the quality of the goods and services provided by the
plaintiff, placed orders for supply of goods, at the office of the
plaintiff, on phone and also through other modes. It is further the
case of the plaintiff that qua the goods supplied by the plaintiff to
the defendants on their demands, tax invoices were duly raised by
the plaintiff, GST was also paid by the plaintiff on which the
defendant had taken tax input credit. It is further claimed that the
parties were in the business dealings and the defendants were
making on account payment of dues to the plaintiff and therefore
the plaintiff was maintaining a running account of defendant, as
per which total amount of Rs. 7,14,400/- (principal amount of Rs.
6,28,428/- + Rs. 84,972/- interest amount @18% per annum) was
outstanding against the defendant.
3. It is further the case of the plaintiff that even after repeated
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requests, telephonic calls and personal visit by the representative
of the plaintiff, the defendant failed to make the above due
payment and continued to linger on the same on one pretext or the
other and during the course of business, the defendant issued two
cheques bearing nos. 014152 and 014153 dated 31-08-2017 but
asked the plaintiff not to deposit the same without prior
permission of the defendant, which later lapsed due to non-
presentation in time. Plaintiff sent legal notice dated 27.07.2021
posted on 28.07.2021 upon the defendant through his counsel by
speed post.
4. Per contra, claim of the defendant in its preliminary objection of
the written statement is that the suit is liable to be dismissed, inter
alia, on the grounds that the same is based on concealment of true
& material facts as goods were not received vide certain bills,
which were also not supplied to the defendant, being time barred
and being not a commercial dispute u/s 2 (i) (c) of the
Commercial Courts Act, 2015. Defendant has claimed that no
cause of action is made out and the suit is liable to be dismissed
u/o 7 rule 11 CPC, 1908, and further that plaintiff has filed the
present suit to harass and humiliate the defendant without any
rhyme and reason and just to defame him in the business
community.
5. In his reply on merits, defendant while admitting commercial
transactions between the parties during the course of business
CS (COMM.) No.86/22 Excelsior Ink Company Vs ADD Service Page No.3 of 20
dealings, has denied that as per the ledger account maintained by
the plaintiff, an amount of Rs. Rs. 7,14,400/- (principal amount of
Rs. 6,28,428/- + Rs. 84,972/- interest amount @18% per annum)
was outstanding against the defendant, which he has failed to pay
despite repeated demands and requests of the plaintiff and on the
contrary has claimed that the bills at serial no. 1728 dated
27.08.2016 amounting Rs.1,45,950/-, bill serial no.1761 dated
29.11.2016 amounting Rs.89,901/-, bill serial No.1773 dated
30.12.2016 amounting Rs.1,25,192/- and bill serial No.1821 dated
17.06.2017 amounting Rs.99.251/- (aggregated amount
Rs.4,60,294/-) were not received by the defendant and also no
goods against the said bills were received by him and that the
plaintiff deliberately manipulated its ledger account which was
filed to create bogus amount for its claim. It is claimed by the
defendant that only an amount of Rs. 29,182/- was outstanding
against him, which he had agreed to pay. Defendant has further
claimed that certains payments made by him to the plaintiff
through NEFT/RGTS i.e. Rs.50,000/- on 08.09.2017, Rs.50,000/-
on 29.07.2017, Rs.15,000/- on 21.01.2020 and Rs.10,000/- on
20.03.2022, were not being shown in plaintiff’s ledger account.
Defendant has claimed that interest @ 18% was agreed to be
charged on the bills only when the condition of the bills were
violated but the same is not the case herein and therefore the
plaintiff was not entitled to any such interest. Defendant has
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further denied that tax invoices were duly raised by the plaintiff
qua the goods supplied to him and GST on the same was paid by
the plaintiff and tax input of the said bills had been taken by him.
It is further the case of the defendant that plaintiff failed to show
that any amount, either of VAT or GST, which had been deposited
by it and input credit qua the same claimed by the defendant.
Defendant specifically denied having issued two cheques bearing
nos. 014152 and 014153 dated 31-08-2017 and asking the plaintiff
to not deposit the same without his prior permission, which later
lapsed and rather claimed that plaintiff did not submit the same
for encashment as the plaintiff had received payments of
Rs.50,000/- on 08.09.2017, Rs.25,000/- on 28.09.2017 and
Rs.25,000/- on 13.10.2017 through bank from the defendant.
Defendant has also denied having received any legal notice.
Defendant has claimed that the plaintiff has raised bogus bills
worth Rs. 4,60,924/- for supporting his false and frivolous version
in his plaint and also that the plaintiff’s ledger account also does
not mention various payments made by the defendant to the
plaintiff.
6. From the pleadings of the parties, the following issues were
framed vide order dated 26-07-2022:
1. Whether the plaintiff is entitled for
recovery of Rs. 7,14,400/ alongwith interest
from the defendant as alleged? OPP
2. Whether the suit is not maintainable? OPD
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3. Whether the suit is barred by limitation?
OPD
4. Whether the suit is not maintainable in the
present form? OPD
5. Relief.
7. In support of his case, plaintiff examined himself as PW-1 and
PW-2 Sh Anand Singh Rawat, from VAT department, employee
ID No. 217425. PE was closed on 24-04-2023. On the other
hand, defendant examined himself as DW-1 and closed DE on 24-
07-2023.
8. PW-1 Satinder Juneja, Proprietor of M/s. Excelsior Ink Company,
tendered his affidavit and additional affidavit of evidences Ex.
PW-1/1 on 04-01-2023 & 22-05-2024 and relied upon the
following documents:-
(1) Documents related to plaintiff firm- Ex. PW-1/A
(2) Bills raised by the plaintiff qua supply of goods- – Ex.
PW-1/B (Colly.).
(3) Delivery note – Ex. PW-1/C.
(4) Copy of cheque bearing nos. 014152 and 014153 dated
31-08-2017 – Ex. PW-1/D (Colly.)
(5) Copy of ledger account statement – Ex. PW-1/E.
(6) Copy of legal notice and postal receipts thereof – ExPW-
1/F & Ex. PW-1/G respectively.
(7) Non-starter report dated 15-11-2021 – Ex. PW-1/H
(8) Carbon copy of bill bearing no. 1761 dated 29.11.2016
for an amount of Rs. 89,901 Ex. PW1/1-A.
(9) Carbon copy of bill no. 1773 dated 30.12.2016 for an
amount of Rs. 1,25,192/- Ex. PW1/1-B.
(10) Carbon copy of bill no. 1821 dated 17.06.2017 for an
amount of Rs. 99,251/- Ex. PW1/1-C.CS (COMM.) No.86/22 Excelsior Ink Company Vs ADD Service Page No.6 of 20
9. PW-2 Anand Singh Rawat S/o Sh DS Rawat, VAT Department
(employee ID No. 217425) was a summoned witness, who
brought the summoned record for the period of second quarter of
financial year 20162017, third quarter of financial year 2016
2017 and first quarter of financial 20172018 of the defendant and
proved the same as Ex. PW2/1.
10. DW-1, Vishal Gupta, propreitor of defendant, tendered his
evidence by way of affidavit vide Ex. DW1/A and relied upon his
GST certificate Ex. DW-1/1, ledger account Ex. DW-1/2, his bank
statement Ex. DW-1/3 and certificate u/s 65B of Indian Evidence
Act, 1872 -Ex. DW-1/4.
11. Initially PW-1 had deposed about duplicate (carbon) copies of
bills / invoices Ex. PW-1/B (Colly) (total 24 invoices) issued by
the plaintiff to the defendant between the period 17-12-2015 to
06-02-2020. Thereafter, vide order dated 07-05-2024 an
application u/o 11 rule 1 r/w section 151 CPC of the plaintiff
seeking permission to file additional documents and another
application u/o 18 rule 17 CPC for additional evidence of PW-1
qua the said documents was allowed and three bills bearing nos.
1761, 1773 and 1821 were exhibited as Ex. PW-1/1A, Ex. PW-
1/1B and Ex. PW-1/1C respectively in additional evidence of PW-
1.
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12. Out of the four invoices disputed by the defendant, three invoices
bearing nos. 1761, 1773 and 1821 were filed and exhibited by
PW-1 as Ex. PW-1/1A, Ex. PW-1/1B and Ex. PW-1/1C
respectively. On perusal of the file, it is revealed that the fourth
disputed invoice bearing no. 1728 was already on record at
running page no. 2, which is part of Ex. PW-1/B (Colly) and thus
the said invoice was already filed with the plaint. Admittedly,
aforesaid three disputed invoices were not initially filed with the
plaint but were mentioned in the legal notice of demand issued by
the plaintiff to the defendant and the said four invoices were
reflected in the ledger account of the plaintiff.
13. I have heard the final arguments addressed by ld. Counsels for
both the parties, perused their respective written submissions filed
on record and have also perused the judicial file.
14. Perusal of record reveals that the pre-litigation mediation held in
the matter, was a non-starter as the defendant did not appear
before DLSA, West District and finally the non-starter report
dated 15-11-2021 Ex. PW-1/H was issued.
15. My issue-wise findings are as under:
ISSUE No. 1
1. Whether the plaintiff is entitled for recovery of Rs. 7,14,400/
alongwith interest from the defendant as alleged? OPP
16. The onus to prove issue no. 1 was on the plaintiff.
17. Defendant in its written statement has not specifically denied all
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the 27 bills but has merely disputed four bills at serial no. 1728
dated 27.08.2016 amounting Rs.1,45,950/-, bill serial no.1761
dated 29.11.2016 amounting Rs.89,901/-, bill serial No.1773
dated 30.12.2016 amounting Rs.1,25,192/- and bill serial No.1821
dated 17.06.2017 amounting Rs.99,251/- (totalling to
Rs.4,60,294/-) and stated that goods vide these invoices were
never supplied by the plaintiff and that plaintiff had deliberately
manipulated its ledger account to create bogus amount for claim.
Thus, the factum of delivery of goods qua the said 23 out of 27
invoices claimed is deemed to be admitted by the defendant.
However, PW-1 has proved the 27 bills Ex. PW-1/B (Colly.), Ex.
PW-1/1-a, Ex. PW-1/1-B and Ex. PW-1/C for the period 17-12-
2015 to 06-02-2020, while claiming that goods (ink) vide the said
invoices was supplied to the defendant.
18. As regards supply of goods vide the aforesaid four disputed
invoices, Ld Counsel for the plaintiff has drawn my attention to
Ex. PW2/1, to claim vide the same the plaintiff had deposited the
VAT tax including for the fourt disputed invoices and the
defendant had taken tax input credit qua the same also and from
the same it stands established that goods vide said four invoices
were also supplied to the defendant by the plaintiff.
19. Perusal of the said document Ex. PW2/1 proved on record by
PW2 (witness from VAT department) reveals that VAT was
being paid by the plaintiff quaterly and accumulatively on all the
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bills during the said quarters. In this respect, Ld counsel for the
defendant has stated that Ex. PW2/1 only shows input taxes paid
but does not show that same were for the four disputed invoices.
However, Ld Counsel for the plaintiff has pointed out that at the
relevant time in 201617, VAT was applicable in Delhi and no
separate bill wise entries were used to be mentioned in VAT
record and rather accumulative quarterly entries were made by the
VAT Department wherein quarterly tax paid by the seller qua a
particular buyer in question were shown. Ld Counsel for the
plaintiff further argued that if Ex. PW2/1 is carefully perused, it
can be inferred that VAT tax was deposited by the plaintiff every
quarter qua the goods supplied to the defendant vide different
bills.
20. PW2 (witness from VAT department) has proved summary of
purchase / inward purchase transfer register (name of the dealer :
ADD Service) of the plaintiff qua the defendant, for second
quarter of financial year 20162017, third quarter of financial year
20162017 and first quarter of financial 20172018 vide Ex. PW
2/1.
21. Perusal of the aforesaid document Ex. PW2/1 of VAT
department reveals that input tax paid by the plaintiff for the
second quarter of 201617 was Rs. 6,950/, having principal
amount of Rs.1,39,000/, vat amount Rs.6,950/, totalling to Rs.
CS (COMM.) No.86/22 Excelsior Ink Company Vs ADD Service Page No.10 of 20
1,45,950/. On perusal of the record including invoice dated 27
082016, which is part of Ex. PW1/B (Colly.) raised by the
plaintiff upon the defendant, reveals that the said invoice was the
only invoice raised by the plaintiff upon the defendant for the said
quarter. The said invoise also mentions the same principal
amount, tax amount and the total amount of Rs. 1,45,950/
separately. Thus, it can be inferred that the plaintiff had paid input
tax on the goods purportedly supplied to the defendant vide single
invoice in the said quarter.
22. Part of the aforesaid document Ex. PW2/1 of VAT department
qua third quarter of financial year 20162017 reveals that input
tax paid by the plaintiff was Rs. 14,442/ with respect to three
invoices bearing no. 1755 (dated 11112016) having principal
amount of Rs. 84,000/, vat amount Rs. 4,200/ totalling to Rs.
88,200/, invoice bearing no. 1761 (dated 29112016) having
principal amount of Rs.85,620/, vat amount Rs. 4281/ totalling
to Rs. 89,901/ and invoice bearing no. 1773 (dated 30122016)
having principal amount of Rs. 1,19,230/, vat amount Rs. 5,962/
totalling to Rs. 1,25,192/. Out of these invoices, invoice no. 1755
is part of Ex. PW1/B (Colly.) and other two invoices bearing nos.
1761 and 1773 (being two of the disputed invoices) are Ex. PW
1/1A and Ex. PW1/1B respectively, which were raised by the
plaintiff upon the defendant for the said quarter. The principal
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amounts, VAT amounts and the total amounts of the said three
invoices are the same as mentioned in the VAT record (part of Ex.
PW2/1) of the plaintiff qua the defendant for the said quarter.
Thus, it can be inferred that the plaintiff had paid input tax on the
goods purportedly supplied to the defendant vide these three
invoices in the said quarter.
23. Also on perusal of Ex. PW2/1 of VAT department qua first
quarter of financial year 20172018 reveals that input tax paid by
the plaintiff was Rs. 20,237/ with respect to three invoices, first
bearing no. 1809 (dated 24042017) having principal amount of
Rs. 1,55,627/, vat amount Rs. 7,781/ totalling to Rs. 1,63,409/,
second invoice bearing no. 1821 (dated 17062017) having
principal amount of Rs. 94,525/, vat amount Rs. 4,726/ totalling
to Rs. 99,251/ and third invoice bearing no. 1818 (dated 2705
2017) having principal amount of Rs. 1,54,600/, vat amount Rs.
7,730/ totalling to Rs. 1,62,330/. Out of these invoices, invoice
nos. 1809 & 1818 were part of Ex. PW1/B (Colly.) and the
invoice bearing no. 1821 (being one of the disputed invoices) is
Ex. PW1/1C, which were raised by the plaintiff upon the
defendant for the said quarter. The principal amounts, VAT
amounts and the total amounts of the said three invoices are the
same as mentioned in the VAT record (part of Ex. PW2/1) of the
plaintiff qua the defendant for the said quarter. Thus it can be
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inferred that the plaintiff had paid input tax on the goods
purportedly supplied to the defendant qua these three invoices in
the said quarter.
24. Ld Counsel for the plaintiff has further drawn my attention to
crossexamination of DW1 wherein, he has deposed as under:
“It is correct that we have taken the benefit of VAT input as per
Ex. PW2/1. I cannot say whether we have claimed VAT benefit
of invoice no. 1728 in the second quarter of 2016 amounting of
Rs. 1,39,000/, invoice No. 1761 & 1773 in the third quarter of
2016 amounting of Rs. 2,88,850/ and invoice no. 1821 in first
quarter of 2017 amount of Rs. 4,04,752/. It is correct that we had
taken all the inputs available on the VAT portal shown in the
plaintiff’s name for our benefit….”
25. From the categorical admission of DW1 in his crossexamination
dated 20072023, which was reproduced in preceeding paragraph
no. 24 and also in view of document proved on record by PW2, it
can safely be inferred that tax input credit qua the four disputed
invoices was also taken by the defendant and hence it can be
presumed that goods qua the said disputed four invoices were also
supplied to the defendant by the plaintiff.
26. The defendant has further claimed that the ledger account of the
plaintiff Ex. PW1/E (Colly.) of the plaintiff does not reflect the
following payments made by him to the plaintiff:
1. Rs.50,000/- on 29.07.2017,
2. Rs.50,000/- on 08.09.2017,
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3. Rs.15,000/- on 21.01.2020 &
4. Rs.10,000/- on 20.03.2022
27. As regards the arguments raised by the defendant in the previous
paragraph, Ld Counsel for the plaintiff during the course of
arguments has submtited that payment of Rs. 50,000/- was made
by the defendant on 29-07-2017 through banking mode, which
was inadvertently wrongly mentioned to be paid by the defendant
to the plaintiff through the said mode on 17-07-2017 in the ledger
account Ex. PW-1/E. Furthermore, Ld Counsel for the plaintiff
has admitted the two other payments i.e. of Rs. 50,000/- on 08-09-
2017 and Rs. 15,000/- on 21-01-2020. Since the facts admitted
need not be proved, therefore, it stands established that the
defendant had made the said two payments also to the plaintiff.
Even otherwise, defendant has proved the two payments i.e. on
29-07-2017 and 08-09-2017 vide bank statement Ex. DW-1/3,
which is duly supported with certificate under section 65B of
Indian Evidence Act, 1872 Ex. DW1/4 and order 11 rule 6 (3)
under Commercial Courts Act, 2015. Further, the fourth
purported payment of Rs. 10,000/ claimed by the defendant has
not been duly proved by the defendant vide bank statement Ex.
DW1/3 and plaintiff has also not admitted the same and hence
the said fact does not stand proved. Even if the contention of Ld
Counsel for the plaintiff on the point that the aforesaid payment of
Rs. 50,000/ on 29072017 inadvertantly was wrongly mentioned
CS (COMM.) No.86/22 Excelsior Ink Company Vs ADD Service Page No.14 of 20
in the statement of account Ex. PW1/E to be on 17072017, is
accepted on its face value to be due to mistake / clerical /
typographical error but still the plaintiff has not explained as to
why the remaining two payments admitted by the plaintiff for a
sum of Rs. 50,000/ and Rs. 15,000/, during the course of final
argumants, are not reflected in the statement of account / ledger
account of the plaintiff. In the absence of any explanation by the
plaintiff qua the same, it can be inferred that the plaintiff had not
deliberately mentioned said two payments made by the defendant,
in his ledger account. Nonetheless, the above three payments
totalling to Rs. 1,15,000/ admitted by the plaintiff, needs to be
deducted from the outstanding amount.
28. Since the legal notice of demand dated 27-07-2021 Ex. PW-1/F
(postal receipt dated 28-07-2021 Ex. PW-1/G) was sent through
speed post at the last known correct address of the defendant, qua
which no report was received, therefore it has to be presumed as
per section 27 of the General Clauses Act, 1897 and section 114 of
Indian Evidence Act, 1872 that the said legal notice of demand
was deemed to be served upon the defendant. Since inspite of
deemed service of legal notice of demand, the defendants
admittedly did not give any reply thereto, therefore adverse
presumption has to be drawn against the defendant.
29. The defendant has failed to prove its claim that he had paid the
amounts due qua twenty three invoices admitted by him and only
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a sum of Rs. 29,182/ was remaining to be paid by the defendant
to the plaintiff as except for bald submission no convincing and
credible evidence has been proved by the defendant.
30. From the aforesaid discussion, it stands established that the
defendant was liable to pay the principal amount of Rs. 5,13,428/-
(Rs. 6,28,428/- – 1,15,000/-) as on 19-10-2020, qua the goods
supplied by him to the defendant.
31. The plaintiff has also claimed interest @ 18% per annum on the
principal suit amount. However, in the case of Cimmco Limited
Versus Pramod Krishna Agrawal (2019 SCC OnLine Del
7289), the Hon’ble High Court of Delhi has held as follows;
“3……….Hon’ble Supreme Court has now mandated that lower
rates of interest be granted and therefore the pre-suit and also the
pendente lite and future interest is liable to be reduced by this
Court. Reliance is placed upon the judgments in the cases of
Rajendra Construction Co. v. Maharashtra Housing & Area
Development Authority, (2005) 6 SCC 678, McDermott
International Inc.v Burn Standard Co. Ltd.,(2006) 11 SCC
181,Rajasthan State Road Transport Corporation v. Indag Rubber
Ltd.,(2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd v. G.
Harischandra, (2007) 2 SCC 720 & State of Rajasthan v. Ferro
Concrete Construction Pvt. Ltd. (2009) 3 Arb. LR 140 (SC)…”
32. In the given facts and circumstances, and keeping in view the
aforesaid judgment and the prevalent rate of interest, the plaintiff
is entitled to simple interest @ 9% per annum on the aforesaid
outstanding amount from 19-10-2020 till actual recovery.
33. Issue no. 1 is accordingly decided in favour of the plaintiff and
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against the defendant.
ISSUE NO. 2 & 4
2. Whether the suit is not maintainable? OPD
4. Whether the suit is not maintainable in the present form?
OPD
34. The onus to prove these issues was on the defendant. Both issues
being of similar nature, can be disposed of together.
35. Defendant have baldly claimed that the suit of the plaintiff is not
maintainable but except for stating so baldly, no other convincing
evidence has been brought on record by the defendant. In view of
this, the bald plea of defendant does not hold water and
accordingly this issue is also decided against the defendant and in
favour of the plaintiff.
ISSUE No. 3
3. Whether the suit is barred by limitation? OPD
36. The onus to prove issue no. 3 was on the defendant.
37. Ld Counsel for the defendant has submitted that since the 23
admitted bills and the four disputed bills of the plaintiff qua
supply of goods to the defendant were for the period from 17-12-
2015 to 06-02-2020, but the suit has been filed beyond three years
limitation period of each of the four disputed bills (last bill being
dated 06-02-2020), therefore, the suit of the plaintiff is barred by
limitation.
38. However, as already decided in issue no. 1 that plaintiff had
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supplied the goods to the defendant vide 27 bills claimed for the
said period on the basis of ledger account Ex. PW-1/E of the
plaintiff and the part payment made by the defendant were not on
bill to bill basis and the ink was lastly suplied on 06-02-2020 vide
invoice no. 203 part of Ex. PW-1/B (Colly.)
39. In this context, reliance may be placed upon the judgment of
Hon’ble Division Bench of Hon’ble Delhi High court in the case
titled as Bharath Skins Corporation Vs Taneja Skins Company
Pvt Ltd, 2011 SCC OnLine Del 5523, wherein in para 15, 20, 24
& 25, it is held as under:-
“15. In view of the above discussion, since the dealings between
the parties disclose a single contractual relationship i.e. of buyer
and seller between them, the account between them cannot be
termed as a „mutual‟ account. As a necessary corollary, Article 1
of the Schedule to the Limitation Act, 1963 has no application in
the present case.
…………………………………………………………………………………………….
20. In case of a running and non-mutual account between the
buyer and seller, when goods are delivered by the seller to the
buyer, the value of the goods is debited in the debit column and
when amounts are paid by the buyer to the seller, they are entered
in the credit column. The difference is continuously struck in the
column for balance. In such a case, when the buyer defaults to
make balance payment, the seller‟s action is not for the price of
goods sold and delivered but for the balance due at the foot of an
account. Thus, Article 14 would have no application in suits of
recovery of money due on a running and a non-mutual current
account between the buyer and seller.
…………………………………………………………………………………………….
24. There being no Article in the Schedule to the Limitation Act,
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1963 dealing with suits for recovery of money due on running and
current but non-mutual accounts, in such circumstances, the
residual article viz. Article 113 applies to such suits.
25. Under Article 113, the period for limitation for filing a suit is
three years and the same begins to run when the right to sue
would accrue when claim was denied in response to the legal
notice dated 26.06.1985 on 13.07.1985 but since `7,000/- was paid
on 13.07.1985 and 24.07.1985 (`2,000/- on the former date and
`5,000/- on the latter date), limitation would commence from
24.07.1985. The suit being filed on 02.09.1985, governed for
purposes of limitation by Article 113 the suit would be within
limitation.”
40. In view of the ratio of the aforesaid judgment, which is squarely
applicable to the facts of the present case, it is clear that limitation
of three years to file the suit has to be counted from the date of
refusal of the defendant qua making the payment from the date of
legal notice dated 27-07-2021 Ex. PW-1/F (postal receipt dated
28-07-2021 Ex. PW-1/G). Hence, if the limiation is counted from
the said date of 28-07-2021, the suit of the plaintiff filed on 01-02-
2022, was within three years limitation period.
41. Even otherwise, in view of the order dated 10-01-2022 of Hon’ble
Supreme Court in Miscellaneous Application no. 21 of 2022 in
Miscellaneous Application no. 665 of 2021 in SUO MOTU Writ
Petition © No. 3 of 2020 with Miscellaneous Application No. 29
of 2022, the period of 15.03.2020 till 28.02.2022 has to be
excluded for the purpose of counting the limitation. Also, the
plaintiff had initiated pre-institution mediation on 07-09-2021
against the defendant but the matter could not be settled and non-
CS (COMM.) No.86/22 Excelsior Ink Company Vs ADD Service Page No.19 of 20
starter report dated 15-11-2021 Ex. PW-1/H was issued and the
said time spent in said mediation proceedings is also liable to be
excluded as per section 12 A of the Commercial Courts Act, 2015
while calculating the limitation period. Hence, it is held that the
suit of the plaintiff is within limitation. This issue is accordingly
decided against the defendant and in favour of the plaintiff.
RELIEF
42. In view of my findings to above issues, the suit is decreed in
favour of the plaintiff and against the defendant, for an amount of
Rs. 5,13,428/- (Rs 6,28,428/- – Rs. 1,15,000/-) alongwith interest
@ 9% per annum from 19-10-2020 till actual recovery.
Decree sheet be drawn accordingly.
File be consigned to record room. Digitally signed by
ASHUTOSH ASHUTOSH KUMAR
KUMAR Date: 2025.02.28
16:47:25 +0530
(Announced in the open (Ashutosh Kumar)
Court) District Judge (Commercial Court)-1
West, Tis Hazari Courts, Delhi
28-02-2025
CS (COMM.) No.86/22 Excelsior Ink Company Vs ADD Service Page No.20 of 20
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