Limitation of summary suit
RAJAGOPALAN NAIR
(Querist) 28 June 2014
This query is : Resolved
A Summary Suit for balance payment towards goods supplied is filed on 7th Sept.2013.
Part Payment received on 3rd April 2010
Demand Notice received by the Defendant is 8th Sept. 2012,
Will the limitation of 3 years starts from 8th Sept. 2012 when the Demand Notice was received by the Defendant. Pl. advise
Thanks & Regards,
Dr J C Vashista
(Expert) 29 June 2014
It would be from 3rd April 2010, i.e.,the last transaction and not from demand notice.
Devajyoti Barman
(Expert) 29 June 2014
Yes, it is time barred.
Demand notice does not create fresh cause of action unless it is replied.
Nadeem Qureshi
(Expert) 29 June 2014
The suit is within time, the limitation will be count from refuse to pay the amount after receiving the demand notice.
prabhakar singh
(Expert) 29 June 2014
The money became due on date goods were supplied or on date promise to pay was made.
That is the beginning of cause of action for which suit can be brought within 03 years and in case any part payment(as being claimed here on 03rd April 2010) was made with in 03 years from the due date then limitation would further get extended for 03 years that is up to 02nd April 2013 in this case.
Demand notice has no relevance,more especially when it was issued after expiry
of limitation.
Limitation is three years to be counted from date of default and gets extended for three years on acknowledgement in writing with in three years or on part payment with in three years.
And to realize a time barred money one needs a contract with promise to pay as envisaged by section 25 of the Indian Contract Act.
Those who differ may revisit Limitation and Contract Act.
Rajendra K Goyal
(Expert) 29 June 2014
It is time barred in absence of acknowledgement of debt.
RAJAGOPALAN NAIR
(Querist) 29 June 2014
Thanks all the Experts for your valuable advice.
In this case the Registered Postal Acknowledgement Due of Demand Notice, was signed and acknowledged by the Defendant but no reply was sent.
Since the Acknowledgement Due was signed, and not replied to the Demand Notice disputing the debt, can we not take that this is an acknowledgement of debt?
prabhakar singh
(Expert) 29 June 2014
NO YOU CAN NOT>
YOU ARE MISCONCEIVING.
Advocate Bhartesh goyal
(Expert) 29 June 2014
As per sec 18 & 19 of limitation Act,your case is barred by limitation,in your case limitation of three years starts from the day when you received part payment on 3rd April 2010,you could file the case before 3rd april 2013.see the sec 18 & 19 of the act.
19. Effect of payment on account of debt or of interest on legacy -
Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly Authorised in this behalf, a fresh period of limitation shall be computed from the time when payment was made:
Provided that, save in the case of payment of interest made before the 1st day of January,1928, an acknowledgment of the payment appears in the hand-writing of, or in a writing signed by the person making the payment.
Explanation – For the purposes of this section, -
(a) Where mortgaged land is in the possession of the mortgage, the receipt of the rent of produce of such land be deemed to be a payment;
(b) “Debt” does not include money payable under a decree or order of a court.
your notice has not been replied by opposite party so merely receiving notice by him is no acknoledgment.
R.K Nanda
(Expert) 29 June 2014
time barred case.
ajay sethi
(Expert) 29 June 2014
suit is barred by limitation
prabhakar singh
(Expert) 29 June 2014
And even if notice was replied, until and unless it contained an expression of promise to pay,it would not be treated effective as notice of demand was issued after expiry of limitation.
RAJAGOPALAN NAIR
(Querist) 29 June 2014
Prabhakar Singh Sir, many time I noticed that you always give the correct and convincing advice. You are also very fast in replying.
We juniors, always, look upon you for your valuable advice and guidance.
THANKS A TON TO YOU AND OTHER EXPERTS.
T. Kalaiselvan, Advocate
(Expert) 30 June 2014
A reminder to expert Mr. Prabhakar Singh Sir, that the demand notice stated to have been issued on 08.09.2012 was well within three years limitation period. No doubt without acknowledging the debt amount it cannot be construed as acceptance or renewal of the same, hence the suit filed on 7.09.2013 stands barred by limitation.
