The only other way in which the suit could have been within limitation was if the suit was based on an open, mutual and current account. An open, mutual and current account under Article 1 of the Limitation Act, 1963 would only exist if there are shifting balances vide Hindustan Forest Company v.. Lal Chand & Others, AIR 1959 SC 1349 and Kesharichand Jaisukhal v. Shillong Banking Corporation, AIR 1965 SC 1711. In the present case, it is seen that in fact the appellant/plaintiff has not filed a copy of its statement of account because what is filed are only individual entries and the same are called as statement of account. Even if we take the entries filed as being a statement of account, such entries do not show shifting balances and once there are no shifting balances, the statement of account relied upon by the appellant/plaintiff is thus not an open, mutual and current account. In fact, the witness of the respondent/defendant no. 1, Sh. Karan K. Luthra, has specifically deposed with respect to the account not being an open, mutual and current account in terms of para 4 of his affidavit by way of evidence dated 13.10.2004.
9. Finally it was argued that the suit is within limitation as respondent/defendant no. 1 is said to have paid a cash amount of Rs. 50,000/- on 29.05.1985, however, this argument is rejected because this cash entry in Ex. DW 1/2 is without any date with the fact that this cash entry is not in an account maintained by the respondent/defendant no. 1, but the entry is an entry in an account of the appellant/plaintiff and the copy of which was given to the respondent/defendant no. 1 and witness DW 1 has categorically and specifically denied any cash payment to the appellant/plaintiff as it is deposed by DW 1 that all payments to appellant/plaintiff have only been made by cheques. A cash payment simpliciter will not qualify for extension of limitations under Sections 18 and 19 of the Limitation Act, as it is not proved.
Delhi High Court
M/S Continental Advertising Pvt. ... vs M/S Karan & Co. on 15 October, 2018
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
