Karnataka High Court
Sri V N Venkataswamy vs Sri Manjunath Narayaniah on 6 April, 2023
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CRP No. 138 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO. 138 OF 2020
BETWEEN:
SRI. V.N. VENKATASWAMY
S/O M.V. NARAYANAPPA,
AGED ABOUT 60 YEARS,
CIVIL WORKS CONTRACTOR,
R/AT NO.27, FIRST FLOOR,
1ST CROSS, P AND T COLONY,
R.T.NAGAR, BENGALURU-560032.
...PETITIONER
(BY SRIYUTHS RAVINDRA M.R. AND PURUSHOTHAMA N.,
ADVOCATES)
AND:
SRI. MANJUNATH NARAYANIAH
S/O K. NARAYANAIAH,
AGED ABOUT 58 YEARS,
R/AT 46722, CRAWFORD STREET,
APARTMENT NO.16, FREMONT,
Digitally CALIFORNIA, USA-94539.
signed by
SUMA LOCAL ADDRESS:
Location: NO.153, 3RD E CROSS,
HIGH
COURT OF KASTURINAGAR,
KARNATAKA EAST OF NGEF LAYOUT,
BENGALURU-560043.
...RESPONDENT
(BY SRI. PROBHUGOUDA B. TUMBAGI, ADVOCATE FOR
SRI. BALASUBRAMANYA B.N., ADVOCATE)
THIS CRP IS FILED UNDER SECTION 115 OF THE CODE OF
CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 27.01.2020
PASSED ON IA NO.III IN O.S. NO.4362/2016 ON THE FILE OF THE
PRL.CITY CIVIL AND SESSIONS JUDGE, BANGALORE DISMISSING
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CRP No. 138 of 2020
THE IA NO.III FILED UNDER ORDER VII RULE 11 READ WITH
SECTION 151 OF CPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The defendant in O.S. No.4362/2016 on the file of LXXV Additional City Civil and Sessions Judge, Bengaluru (henceforth referred to as 'Trial Court') has filed this petition challenging an order dated 27.01.2020 by which an application (I.A. No.III) filed by him under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (for short, the 'CPC') was rejected.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. The suit in O.S. No.4362/2016 was filed for the following reliefs:
i). For recovery of a sum of Rs.58,70,480/-
(Rupees Fifty Eight Lakhs Seventy Thousand Four Hundred and Eighty only) which includes a sum of Rs.31,87,480/- being the excess amount received from the plaintiff under the contract, towards loss incurred for delay in completion of the building and also damages caused to the building, together with costs and current -3- CRP No. 138 of 2020 interest @ of 18% from the date of suit until recovery of the amount.
ii). Costs and such other appropriate relief/s as this Hon'ble Court deems fit to grant in the facts and circumstances of the case."
4. The plaintiff claimed that the defendant was engaged for construction of a house and that certain disputes arose between them. The plaintiff claimed that the defendant was required to complete construction by the end of January 2013 and the same was postponed at the request of the defendant to April 2013. When the plaintiff questioned the defendant as to why the construction was not completed in May 2013, the defendant sought additional time till the end of June 2013 to complete the work. Since the defendant had to complete the construction before April 2013, a notice was caused by the plaintiff on 18.04.2013 calling upon the defendant to complete the construction of the building in all respects by the end of April 2013. The defendant is said to have replied claiming that the time for completion of construction was extended up to the end of June 2013. Therefore, the plaintiff claimed in the plaint that the date of the -4- CRP No. 138 of 2020 construction was extended up to June 2013 in the following words:
"However, the defendant pleaded to grant time till end of June 2013 to complete the work and he will not postpone the completion in any manner."
Since the defendant failed to complete the construction, the engagement of the defendant was terminated and the suit for damages was filed. The plaintiff specifically pleaded the cause of action as follows:-
"15. The cause of action for the suit arose when the defendant walked out from finishing of the contract work abruptly during end of May 2013, by received various payments as stated in Para No.7, and thereafter repeated phone calls and by exchange of e-mail communications, and subsequently, within the jurisdiction of this Hon'ble Court."
5. The defendant contested the suit and later filed an application under Order VII Rule 11 of CPC contending that the plaintiff had specifically pleaded in paragraph No.15 of the plaint that the cause of action for the suit arose during the end -5- CRP No. 138 of 2020 of May, 2013 and therefore, the suit must have been filed within three years from the date of cause of action. He claimed that the suit is filed on 16.06.2016, which is beyond the time prescribed under the Limitation Act, 1963.
6. The Trial Court after considering the material on record, rejected the application in terms of the order impugned herein on the ground that the Court is bound to consider the plaint averments alone and as per the plaint averment, the time fixed for completion of construction was by the end of June, 2013. It also held that an issue regarding the limitation was already framed and that being mixed question of law and fact, the same had to be established in trial.
7. Being aggrieved by the said order, the present petition is filed.
8. Learned counsel for the petitioner/defendant submitted that the plaint specifically disclosed that the cause of action for the suit arose in May, 2013 and therefore, the suit must have been filed within three years, by the end of May, 2016. He submits that since the suit is filed beyond three -6- CRP No. 138 of 2020 years i.e., on 16.06.2016, the suit is highly belated. He relied upon the judgment of the Hon'ble Apex Court in the case of Hardesh Ores Pvt. Ltd., vs. Hegde and Company [2007 (5) SCC 614], wherein the Hon'ble Apex Court held as follows:-
"27. The respondent sought rejection of the plaint by filing application under Order VII Rule 11 CPC contending that the suit was barred by limitation on the face of it. It was contended before the High Court as also before us that the plaint has been cleverly drafted to give it the appearance of a simple suit for injunction to enforce the terms of Clauses 15 and 20 of the agreement which incorporated negative covenants prohibiting mining operation by anyone else except the appellant - Hardesh, or without its permission. It was submitted before us that the law is well settled that the dexterity of the draftsman whereby the real cause of action is camouflaged in a plaint cleverly drafted cannot defeat the right of the defendant to get the suit dismissed on the ground of limitation if on the facts, as stated in the plaint, the suit is shown to be barred by limitation. In T. Arivandandam v. T.V. Satyapal and another [1977 (4) SCC 467], this Court observed as under :--7- CRP No. 138 of 2020
"We have not the slightest hesitation in condemning the petitioner for gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11, C.P.C., taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits."
In I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others [1998 (2) SCC 70], this Court noticed the judgment in Arvin and observed as under :-
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"16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint."
He also relied upon the judgment of the Hon'ble Apex Court in the case of Church Christ Charitable Trust and Educational Charitable Society vs. M/s Ponniamman Educational Trust [2012 (8) SCC 706] and the judgment of the Hon'ble Apex Court in Dahiben vs. Arvindbhai Kalyanji Bhanusali and others [Civil Appeal No.9519/2019] and contended that clever drafting resulting in illusory cause of action does not extend the period of limitation and the Courts should be cautious in entertaining such stale claims.
9. Per contra, the learned counsel for the respondent/plaintiff submitted that admittedly, the time for completion of construction was extended till the end of June, 2013 and since the same was not done, the suit filed on 16.06.2016 was well within time as prescribed. He submitted that the averments of the plaint alone had to be considered -9- CRP No. 138 of 2020 while considering an application under Order VII Rule 11 of CPC. He relied upon the judgment of the Hon'ble Apex Court in the case of H.S. Deekshit and another vs. M/s. Metropoli Overseas Limited and others (SLP No.2177/2022).
10. I have considered the submissions made by the learned counsel for the petitioner/defendant as well as the learned counsel for the respondent/plaintiff.
11. As rightly contended by the learned counsel for the petitioner/defendant, clever drafting leading to an illusory cause of action cannot be basis for filing a suit and the Courts are expected to be cautious while dealing with such suits. A stale claim cannot be allowed in a Court, based on the assertions in the plaint, by which, time prescribed by the law of limitation is superficially extended. It is also well settled that while considering an application under Order VII Rule 11 of CPC all that has to be seen is averments in the plaint and nothing else. In the case on hand, the engagement of the defendant by the plaintiff for construction of the building is not in dispute. It is also not in dispute that the plaintiff had caused a notice on 18.04.2013 calling upon the defendant to complete the work.
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CRP No. 138 of 2020The defendant did admit in his reply that the time for completion of work was extended up to the end of June, 2013 and therefore, the termination of the contract between the plaintiff and the defendant could have happened after June 2013 and therefore, the suit filed in June, 2016 cannot be held to be barred by law of limitation.
12. Be that as it may, these are all pure questions of fact, which have to be decided by the competent court after a full-fledged trial and certainly cannot be decided at an interim stage on an application filed by the defendant under Order VII Rule 11 of CPC. The judgment relied upon by the learned counsel for the petitioner/defendant is clearly distinguishable on facts. The case in Hardesh Ores Pvt. Ltd., was relating to extracting of iron ore and the dispute was governed by a settled agreement between the parties. However, in the present case, there are intertwining of facts, which indicate that the defendant and the plaintiff had extended the period of completion of contract till the end of June, 2013. In that view of the matter, the judgment relied upon by the learned counsel for the petitioner/defendant is not applicable to the facts of this case.
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CRP No. 138 of 2020There is no merit in this petition and the same is dismissed.
Any observation made by this Court in the course of this order is only for the limited purpose for deciding this petition and shall not affect the Trial Court in deciding the case on merits.
Sd/-
JUDGE SMA - para 1 to 4 PMR - para 5 to end List No.: 1 Sl No.: 46