IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR RECOVERY CS(OS) No.1177/2003 DATE OF DECISION :23rd July, 2012

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR RECOVERY CS(OS) No.1177/2003 DATE OF DECISION :23rd July, 2012 MRS VEENA JAIN... Plaintiff Through: Mr. Mohan Vidhani, Advocate with Mr. Rahul Vidhani, Advocate and Mr. Vinod Khera, Advocate. VERSUS SUNIL SOOD Through: None.... Defendant CORAM: HON BLE MR. JUSTICE VALMIKI J.MEHTA VALMIKI J. MEHTA, J (ORAL) 1. The present suit for recovery of Rs. 51,80,772/- is filed by the plaintiff against the defendant for the balance due on a running account from the relationship which arose on the plaintiff providing various services to the defendant for telecast of various episodes of serial School Days on Doordarshan T.V. Out of the aforesaid amount, principal amount due is of Rs. 27,84,947.50/- and the balance amount claimed is of 24% per annum simple. 2. The facts of the case are that defendant was successful in obtaining a contract from Doordarshan for telecasting of various episodes of a serial School Days. The total number of episodes were 52 and details of which have been given from pages 4 to 14 of the plaint. In fact, I am told that there were 53 episodes as one episode was repeated. The plaintiff used to provide services by getting advertisement revenue in the periods (free commercial times) provided in the episodes for telecast of the commercials. The method of payment to the plaintiff was that either the defendant used to make payment to the plaintiff or on occasions the plaintiff used to directly collect money from the advertisers. The plaintiff contends that she

2 successfully performed her obligations. It is further pleaded that as per the running account and the bills raised upon the defendant, the defendant used to make on account payments. The plaintiff also states that a number of cheques given by the defendant were not deposited on the request of the defendant inasmuch as the defendant did not have sufficient funds in her account to make the payment. On the failure of the defendant to make payment of the dues, after serving a notice, the subject suit for recovery came to be filed. 3. Though the defendant initially appeared, filed his written statement, got issues framed, however, the defendant failed to lead evidence, and the right of the defendant to lead evidence was ultimately closed by a learned Single Judge of this Court vide order dated I am informed by the counsel for the plaintiff that this order has become final as the same has not been challenged. The defendant has failed to appear thereafter and did not appear even today for arguments. 4. The plaintiff during the course of her evidence has proved on record various invoices issued by her as also the telecast of the 53 episodes of serial School Days. The statement of account has also been proved and exhibited as also the correspondence between the parties whereby the defendant was asked to clear dues. Though the defendant in the written statement pleaded a case of adjustment of various dues payable to him, however, the defendant has not stepped into the witness box to prove his case. 5. Documents showing the telecast of the episodes of School Days as also of the commercials therein have been proved and exhibited as Ex.PW1/8 to Ex.P61. The bills which were drawn by the plaintiff on the defendant have been proved and exhibited as Ex.PW1/5 to Ex.PW1/7. The originals of the cheques which were issued by the defendant but not deposited by plaintiff have been filed and proved as Ex.P13 to Ex. P17 and Ex.PW1/4. Other documents with regard to telecast of the serial and also correspondence between the parties have also been filed and proved, and some of which are Ex.P1 to Ex.P9. The legal notice/letters demanding amounts have been proved and exhibited as Ex.P63, Ex.PW1/27 and Ex.PW1/28. The corresponding postal receipts are proved and exhibited as Ex.PW1/29 and Ex.PW1/30. The statements of account showing the debt due as per the running account have been proved and exhibited as Ex.PW1/17 to Ex.PW1/19.

3 6. Learned counsel for the plaintiff has argued that the suit is within limitation inasmuch as the last payment made by the defendant was credited on for an amount of Rs. 1,95,600/-. Learned counsel for the plaintiff states that such payment is in terms of Section 19 of the Limitation Act, 1963 and hence brings the suit filed on within limitation. Reliance is placed, in this regard, upon the judgment delivered by me in RFA No.144/2004 titled as M/s Naraingarh Suger Mills Ltd. Vs. Krishna Malhotra decided on to argue that the suit is within limitation as the payment which is made by the cheque is towards total due at the foot of the account and therefore the entire amount due at the foot of the account stands admitted. Reliance is placed upon para 6 of the judgment in RFA No.144/2004 and which reads as under:- 6. Learned counsel for the appellant argues that the suit was barred by limitation, inasmuch as, the case of the respondent/plaintiff as put in the cross-examination of the witness, DW1 of the appellant/defendant was that the cheque was issued towards nine specific bills as found at internal page no.three of the cross-examination. It is argued that once the payments have been made towards a particular bunch of bills, the suit would be governed by Article 14 of the Schedule of the Limitation Act, 1963, i.e. the limitation period commenced from the date of each bill. It is argued that the bills in this case are all prior to three years of the filing of the suit on and, therefore, the subject suit will be barred by time. I am unable to agree with the contentions as raised on behalf of the appellant, inasmuch as, Section 19 of the Limitation Act, 1963 has rightly been relied upon by the trial Court to hold that a fresh period of limitation commences once payment is made on account of the debt due. In this case, the debt which was due to the respondent/plaintiff was the total debt due including the nine bills which have been referred to in the cross-examination of DW1 and, therefore, the payment of cheque is towards part of the total debt due. Once the payment is made towards part of the total debt due, Section 19 of the Limitation Act, 1963 comes into play whereby a fresh period of limitation starts on payment having been made in writing and under the signatures viz. by a cheque towards the part of debt due. A suggestion by the appellant cannot change the fact that the cheque for Rs. 1,99,600/- was not towards any specific bills, but was towards all dues/debt generally. What is material is the aspect as to the giving of the cheque of Rs.1,99,600/- by the appellant generally towards the total debt due and not how the respondent/defendant acted or appropriated the payment. The extension of limitation arises from the factum of payment by the appellant

4 under Section 19 towards the debt due and not how the creditor appropriates. After all when the payment by cheque was made, there was a total figure of debt due at the foot of the statement of account and the cheque issued was towards the total of the debt mentioned at the foot in the statement of account. I, therefore, hold that the payment by means of cheque dated was towards the debt due at the foot of the statement of account and, therefore, the same extended the period of limitation for a period of three years. The suit, therefore, could have been filed till , and since the same was filed on the same is within limitation. (underlining added) 7. I agree with the arguments as urged on behalf of the plaintiff. The plaintiff has proved the telecast of the episodes of the serial, raising of invoices, the fact that commercials were in fact aired during the telecast of the episodes and finally the statement of account showing that the debt was due and the suit is filed within limitation as covered by the ratio of the judgment in RFA No.144/ I am however not agreeable to grant the huge rate of 24% interest as claimed by the plaintiff. The Supreme Court in the recent chain of judgments reported as Rajendra Construction Co. v. Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, McDermott International Inc. v. Burn Standard Co. Ltd. and others, 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 Vs. Ferro Concrete Construction Pvt. Ltd (2009) 3 Arb. LR 140 (SC) has mandated that Courts must reduce the high rates of interest on account of the consistent fall in the rates of interest in changed economic scenario. In my opinion, plaintiff will be thus entitled to 9% per annum on the principal amount due of Rs. 27,84,947.50/- for the period prior to the filing of the suit i.e. from till the date of filing of the suit. Plaintiff will also be entitled to pendente lite and future interest till 9% per annum simple. 9. In view of the above, the suit of the plaintiff is decreed against the defendant for a sum of Rs. 27,84,947.50/- alongwith 9% per annum simple from till the date of filing of the suit. Pendente lite and future interest till realization is also 9% per annum simple to the plaintiff on the amount of Rs. 27,84,947.50/-. Costs be calculated in

5 terms of the rules of this Court for being paid to the plaintiff. Decree sheet be prepared. Suit is decreed and disposed of. Sd/- JULY 23, 2012 VALMIKI J. MEHTA, J.

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