Order No:  8                                                                            Date:19/06/2023

Ld. Advocate of the petitioner/O.p. and Ld. Advocate for O.p./complainant are present. Today is fixed for hearing of the instant M.A. case.

Both parties being ready, the instant M.A. case is taken up for hearing. Ld. Advocate of petitioner/O.p. submitted that the O.p./complainant booked a power press machine on 28/01/2011 with the petitioner/O.p. He also admitted that the O.p./complainant paid an amount of Rs.6,00,000/- towards advance payment for the said machine between 28/01/2011 and 01/01/2013. Ld. Advocate for petitioner/O.p. further stated that from 2013 upto 2018 the O.p./complainant did not raise any written request/demand to the petitioner/O.p. for repayment of the amount paid. Thus, Ld. Advocate for petitioner/O.p. pleaded for an order of dismissal of the complaint case No.352/2019 on the ground of being barred by limitation.

On being asked Ld. Advocate of petitioner/O.p. mentioned that as per communication dated 28/01/2011 by the petitioner/O.p. total value of the machine was declared as Rs.13, 26,915.00 and it is mentioned therein that payment should be made before delivery. The said communication though bears dated signature on behalf of the petitioner/O.p. but no signature of O.p./complainant is reflected there as a token of acceptance of the said communication. However, since the O.p./complainant alongwith his complaint filed copy of the said communication, it may be presumed that he has accorded his acceptance towards the content of the said communication.

The said communication on being thoroughly viewed found to be of validity of endless period since neither the date of delivery of machine nor the date of payment is mentioned therein. The only thing is mentioned that the payment is to be made before delivery. But simply mentioning those words fails to bind the execution of the said communication by any specified period of time.

Thus, the said communication even if considered to be a deemed contract, it can only be equated with an open end contract.

An open contract is a type of contract signed without a specific date range. As long as both parties are satisfied the contract continues.

Ld. Advocate for petitioner/O.p. relied upon a judgment dated 09/11/2022 of Hon’ble High Court of Delhi in RFA (COMN) 8/2022 & CM APPL.8073/2022, CM APPL.8074/2022, CM APPL.8075/2022, CM APPL.45780/2022 in support of his argument and specifically mentioned content of para 17 and 18 of said judgment.

In para 17 of said judgment it has been mentioned that mere demand for the repayment of dues does not extend the period of limitation and also merely sending a legal notice to repay the amount does not help the purpose of calculation of the period of limitation.

In para 18 of the said judgment it has been mentioned that the correspondence exchanged between the parties cannot extend the limitation period for institution of a suit.

Ld. Advocate for the O.p./complainant in his argument submitted that in absence of any specific dates with respect to payment of balance amount as well as delivery of the product the cause of action continues throughout the period and the point of limitation does not occur at all. Further he submitted that on receipt of an huge amount of Rs.6,00,000/- as advanced payment towards purchase of the machine, the petitioner/O.p. was under dutiful obligation to communicate the time when the machine is ready for disposal. But petitioner/O.p. did not take any initiative to complete manufacture of the product and inform O.p./complainant the date of delivery of product and by which time the balance payment is to be made.

In view of above and in the light of the Judgment relied upon by petitioner/O.p. we are of the considered view that the date of cause of action need to be ascertained first to find out the date from which the period of limitation be counted. Since the communication dated 28/01/2011 can at best be considered as an open end contract and the petitioner/O.p. did not communicate the date of delivery of the product throughout the period to O.p./complainant and the petitioner/o.p. did not even communicate anything towards fixing of the date of payment of balance amount, in our opinion the cause of action continued. Thus, the spirit of the judgment referred does not seem to be applicable in this case.

Thus, the instant M.A. case is dismissed.

Accordingly, the instant M.A. case is disposed of.

Dictated & corrected by me.

Member