“Open, mutual and current account” exists only when there are shifting balances; cash payment simpliciter held not to extend limitation under Section 18, 19 limitation Act: Delhi HC

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J., dismissed a regular first appeal filed under Section 96 of the Code of Civil procedure, 1908 against the judgment of the trial court whereby appellant’s recovery suit was dismissed as barred by limitation.

The appellant issued advertisements in the newspaper for the weekly draws of lotteries for the State of Meghalaya. As per the statement of account maintained by the appellant/plaintiff, a sum of Rs 4, 28,256.56/- was due. Despite writing repeated letters to the respondent (alleged to be agent of the State), the payment due was not released. Hence, the subject recovery suit was filed. The respondent, inter alia, pleaded the suit to be barred by limitation. The trial court, vide the judgment impugned, dismissed the suit on the ground as mentioned. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court perused the record and noted that all the bills on which the claim of the appellant was based were from 31 October 1984 to 30 April 1985. The subject suit was filed on 28 May 1988 and therefore if the bills were raised prior 28 May 1985, the claim of those bills would be barred by limitation. It was argued by the appellant that the suit was within limitation as a cash payment of Rs 50,000 was made by the respondent on 29 May 1985. The argument was rejected as the cash entry was without any date and that too only in the account maintained by the appellant and not in account maintained by the respondent. It was held that a cash payment simpliciter will not qualify for extension of limitation under Sections 18 and 19 of the Limitation Act, as it is not proved. Further, it was observed that the only other way in which the suit would have been within limitation was if it was based on an open, mutual and current account. Making reference to Supreme Court decisions in  Hindustan Forest Company v. Lal Chand, AIR 1959 SC 1349 and Kesharichand Jaisukhal v. Shillong Banking Corporation, AIR 1965 SC 1711, the High Court observed that under Article 1 of the Limitation Act, such an account exists only if there are shifting balances which was not the case herein. In view of the aforesaid, the judgment impugned was found to be free of error. The appeal was thus dismissed. [Continental Advertising (P) Ltd. v. Karan & Co.,2018 SCC OnLine Del 11921, dated 15-10-2018]

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