Gujarat High Court
Iffco Tokio General Insurance Co Ltd vs Gujarat Narmada Valley Faterlizers Co ... on 7 December, 2015
Author: S.G.Shah
Bench: S.G.Shah
C/SCA/3562/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3562 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH Sd/-
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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IFFCO TOKIO GENERAL INSURANCE CO LTD....Petitioner(s)
Versus
GUJARAT NARMADA VALLEY FATERLIZERS CO LTD....Respondent(s)
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Appearance:
MR Rajni H Mehta, Advocate for the Petitioner(s) No. 1
MR Nandish Chudgar, Advocate with Mr. Kunal Vyas, advocate for Nanavati
Associates for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 07/12/2015
CAV JUDGMENT
1. Heard Mr. Rajni H. Mehta, learned advocate for the Petitioner, Mr. Nandish Chudgar, learned advocate appearing for M/s. Nanavati Page 1 of 26 HC-NIC Page 1 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT Associates for the Respondent. Perused the record.
2. Petitioner - Insurance Company is original Defendant, whereas, Respondent - Company is original Plaintiff before the Civil Court at Bharuch in Special Civil Suit No.46 of 2010. They are referred in the same capacity.
3. The Plaintiff has filed a suit for the recovery of Rs.8,33,86,178/ as consequential Loss of Profit on the AN Melt Filling Station under the Loss of Profit Policy issued by the Defendant after accepting premium for the purpose. The pleadings runs into number of pages since there is a long history of proceedings between the parties and, therefore, several dates is material to recollect here, as supplied by the Defendant and so far as chronology of dates are concerned, except addition of one event on 22.7.2007 by the Plaintiff, it is undisputed facts being details of the record and proceeding only. Therefore, such chronological dates need to be recollected here which are as under: 25.03.2005 Two insurance policies were Page 2 of 26 HC-NIC Page 2 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT issued by the petitioner to the respondent:
[I] Standard Fire and Special Peril Policy Material Damage Police (M.D.Policy) [ii] Loss of Profit Policy (LOP Policy) 14.10.2003 Explosion occurred 16.08.2005 Agreed to pay Rs.45.55 crores.
21.09.2005 Rs.16.9738 crores for M.D.Policy Rs.28.5762 crores for LOP Policy Petitioner denied claim under M.D.Policy and LOP policy.
Commencement of cause of action under Article 44(b) of Scheduled I of Limitation Act, 1963.
Discharge voucher was sent ( Page 4 - see page 17 ) Payment accepted under protest.
02.05.2006 Respondent invoked arbitration and appointed the Hon'ble Mr. Page 3 of 26 HC-NIC Page 3 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT Justice S.P. Bharucha sole arbitrator under the terms of M.D.Policy.
Thereafter petitioner appointed Hon'ble Mr. Justice J.K. Mehta as their arbitrator.
Hon'ble Mr. Justice R.S. Pathak has been appointed Presiding Arbitrator.
28.08.2006 Arbitration Agreement.
"Liability and quantum under the Standard Fire and Special Perils Policy (M.D.Policy), which constitutes the claim by Gujarat Narmada Valley Fertilizers against the IFFCO TOKIO General Insurance."
13.10.2006 Respondent file statement of claim, inter alia, claiming Rs.29,209,000 crores for Loss of Profit (LOP) along with interest Rs.14,772.237 crores as interest.
Page 4 of 26HC-NIC Page 4 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT 30.11.2006 The petitioner challenged the jurisdiction of the Arbitral Tribunal to entertain claim under LOP policy.
13.06.2007 The Arbitral Tribunal held that there was no reference to arbitration of a dispute under LOP policy.
22.07.2007 Above order is received by GNFC.
14.06.2010 Respondent filed Special Civil Suit No.46 of 2010.
. Petitioner was served with 01.04.2011 summons.
05.05.2011 Petitioner filed application at Exhibit 11 in Special Civil Suit No. 46 of 2010 under Order 7 Rule 11(d) read with Section 151 of the CPC - Reply and Rejoinder were file.
15.03.2012 Written arguments of Petitioner (Applicant).
19.04.2012 Written arguments of Respondent (Plaintiff / Respondent) 70 to Page 5 of 26 HC-NIC Page 5 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT 89 received on 19.04.2012.
.__05.2012 Written submission in Rejoinder of petitioner (Applicant) 28.10.2013 Order of the Principal Senior Civil Judge, Bharuch dismissing the petitioner's application.
4. However, it would be necessary to recollect the factual details regarding dispute between the parties before considering the rival submissions to determine the present petition finally, in background of above chronology which is only indicating chronology of events.
5. It is undisputed fact that Plaintiff had insured its plant and machinery and fixed assets with a consortium of insurers led by the Defendant by way of a standard fire and special perils Policy no.11013411 (Material Damage Policy) on 28.3.2003 for a period of 12 months starting from 25.3.2003 to 24.3.2004. The sum insured under the Material Damage Policy was Rs.2385.86 crores and the Plaintiff has paid total premium of Rs.5.65 crores for such insurance.
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6. At present, we are concerned with the impugned order dated 28.10.2003 below an application Exh.11 under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint contending that the suit is barred by law of limitation. Therefore, practically, there is no dispute so far as issuance policy or risk covered under it or the quantum of damages are concerned. Thereby, the only issue which needs to be determined in the present petition is limited to the effect that whether impugned order below application Exh.11 is proper or not and, thereby, whether this Court should interfere in such an order or not?
7. If we peruse such impugned judgment and order, it transpires that the Principal Senior Civil Judge of Bharuch has rejected such an application on the ground that though Court may reject a plaint at any stage of proceeding, if it finds that any of the conditions specified under Order VII Rule 11 of the Code is fulfilled. It has to be established at any stage of the proceeding, that the plaint itself has shown that the claim is barred by limitation. However, so far as question of limitation is concerned, Page 7 of 26 HC-NIC Page 7 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT if one has to interfere with the merits of the case and if it requires to be discussed alongwith other issues, then Clause (d) of Order VII Rule 11 of the Code is not applicable and it is statutory obligation on the Court to examine that whether the suit is filed beyond limitation or whether the limitation affects the jurisdiction of the Court and, thereby, the Court has no jurisdiction to entertain the suit.
8. It is further observed in the impugned order that if any controversy arises on the ground of the suit barred by law of limitation, in that case, the Court has to decide such controversy in accordance with law after hearing both the parties and if such issue requires recording of some evidence regarding the dispute question of fact, then, such question of limitation cannot be decided at the time of initial stage of the suit i.e. while deciding the application under Order VII Rule 11 of the Code, thereby rejecting the suit summarily. Thereby, the Civil Court is of the view that clause (d) of Order VII Rule 11 of the Code applies to this case only when it appears from the statement made by the Plaintiff in the plaint, that the suit is barred by law of limitation.
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9. With such observation, for the facts of present case, the Civil Court has considered that when the Plaintiff has filed its claim before the Arbitral Tribunal (For Short `Tribunal'), the commencement of cause of action has arisen on the date of rejection of the claim by the Tribunal and thus, Plaintiff is entitled to get the benefits of Section 14 of the Limitation Act and, therefore, on such point, both the sides should be given an opportunity to lead their oral as well as documentary evidence to decide that whether there is bonafide on the part of the Plaintiff to file such claim before the Arbitral Tribunal and that whether Plaintiff is entitled to get the benefit of the provisions of Section 14 of the Limitation Act. With such observations, it is held that at the initial stage of the suit, the issue of limitation cannot be decided under Order VII Rule 11 of the Code. Rest of the paragraphs in the impugned judgment certainly discloses factual details of the case and dispute between the parties, so also decisions relied upon by both the sides and, thereby, holding that evidence is required to be led to decide the point of limitation and, therefore, the application for rejecting the Page 9 of 26 HC-NIC Page 9 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT plaint summarily was dismissed.
10. As against that, the Defendant has relied upon the averments in the plaint and provision of Order VII Rule 11(d) of the Code, which provides that when the suit is barred, as per the statement in the plaint, by any law, then it can be rejected.
11. Whereas, the Plaintiff has categorically contended in Paragraph no.73 of the plaint that the cause of action firstly arose on 14.10.2003 and, thereafter, continued as several correspondence was exchanged between the parties and meetings were held between them and that cause of action was further arisen on 8.8.2015, when the Defendant, first time but orally informed the Plaintiff that its claim for the cost incurred in relation to the relocation of the AN Melt Filling Station is untenable and, thereafter, on 21.9.2005, when Defendant reiterated its position in this regard and further denied having granted any extension to the claimant for reinstatement of the damaged property including the shifting of the AN Melt Filling Station. It is further contended that the cause of action also arose thereafter on various occasions when the Defendant has Page 10 of 26 HC-NIC Page 10 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT disputed its liability under the Policy while also denying the jurisdiction of the Tribunal on such disputes raised by the Plaintiff and that the cause of action further arose on 2.2.2006 when Plaintiff invoked the arbitration clause and it is still continued till the date of the suit.
12. Therefore, primafacie reading of the plaint makes it clear that there was some proceeding going on between the parties, under the Arbitration Act and that unless specific repudiation of the claim for compensation and damages by the insurer, the insured may not have any cause of action to file a suit. Therefore, primafacie it seems that the question of limitation in this case is certainly a mixed question of facts and law and that facts are to be ascertained at this stage only from the averments in the plaint and not from the defence version. It can be argued that this may undergo to flooding of unwarranted litigation before the Court, by way of intelligent or vague averments regarding cause of action, but the fact remains that the settled legal position is quite clear that when there is a mixed question of law and facts to determine the limitation, the rejection of plaint summarily Page 11 of 26 HC-NIC Page 11 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT at initial stage on such technical ground is unwarranted.
13. In the present case, before proceeding further with reference to the averments and submissions by the Defendant, it would be appropriate to recollect relevant sub paragraphs i.e. (1) and (2) of Section 14 of the Limitation Act, 1963 which reads as under: 14 Exclusion of time of proceeding bona fide in court without jurisdiction. --
"(1) In computing the period of limitation for any suit the time during which the Plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the Defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due Page 12 of 26 HC-NIC Page 12 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
The bare reading of above referred sub paragraphs i.e. (1) and (2) of Section 14 of the Limitation Act, 1963 makes it clear that in compounding the period of limitation, the time during which the Plaintiff has been prosecuting with due diligence, another civil proceedings, against the Defendant, such time shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, for the defect of jurisdiction or other cause of a like nature, is unable to entertain it. Therefore, what is required to be scrutinized to appreciate the issue regarding limitation is "good faith" and "bonafide" of the plaintiff and unless there is a specific evidence to determine it, such expression cannot be ascertained only from the proceedings but it certainly requires to allow the parties to adduce the evidence Page 13 of 26 HC-NIC Page 13 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT both, for establishing such condition by the Plaintiff and rebutal of such condition by the Defendant.
14. As against that, it is contended that infact Plaintiff was well aware about the repudiation of their claim by the Defendant and disclosure by the Tribunal comprising of stalwart jurists like retired Chief Justices of Hon'ble Supreme Court of India and former Judge of the Hon'ble Supreme Court of India and, therefore, when such stalwart jurists have disclosed in their order about non inclusion of the claim in question in concern proceedings and when such fact is well known to the Plaintiff at relevant point of time, it is sufficient evidence to consider that Plaintiff has a knowledge about the non inclusion of such claim in arbitrary proceeding and, therefore, filing of the suit beyond the period of 3 years from such date of knowledge is a clear proof that suit is barred by limitation and, therefore, it needs to be rejected as prayed for. In support of such submission, Mr. Rajni H. Mehta, learned advocate has relied upon the order dated 13.6.2007 by the Arbitral Tribunal, copy of which is produced at Annexture `A.' In such order dated 13.6.2007, the Tribunal has Page 14 of 26 HC-NIC Page 14 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT recorded the development in the arbitration proceeding. It would be appropriate to recollect the following paragraphs:
" We have heard learned counsel for the parties. It was contended by Mr. Banerji, learned counsel for the Claimant, that a dispute under the LOP Policy could not be referred to the Arbitral Tribunal. It was contended by Mr. Dave, learned counsel for the Respondent, that the arbitration clause in the MD Policy was incorporated by reference in the LOP Policy so that disputes thereunder were referable to arbitration; that the dispute relating to Loss of Profit consequent upon the shifting of the AN Melt Filling Station had been referred to the Arbitral Tribunal and that the learned advocate who signed the Minute on behalf of the Claimant had no authority to do so.
For the purposes of this order, we proceed upon the assumption that a dispute under the LOP Policy is arbitrable."
15. Therefore, irrespective of specific submission and argument by the Plaintiff, it becomes clear that even while passing the order on 30.6.2007, the Tribunal has Page 15 of 26 HC-NIC Page 15 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT proceeded upon the assumptions that the dispute under the Loss of Profits Policy is arbitrable, though, the Defendant herein has submitted before the Tribunal that, the dispute under the LOP Policy could not be referred to arbitration and that dispute under LOP Policy had been referred to the Tribunal. Therefore, there is primafacie evidence to assume that the cause of action for such suit could not be said to be arisen till Tribunal refuses to deal with such issue as submitted by the Defendant. Thereafter, the Tribunal has, in the same order, observed and concluded that "there never was a reference to the Arbitral Tribunal on a dispute of LOP Policy and that the Minutes did no more than record this." Thereby, allowing the application, it is declared by the Tribunal that prayer (b) of the Statement of Claim, and prayer (c), in so far as it relates that may be awarded under prayer (b) which decided the jurisdiction of the Arbitral Tribunal and that there was no reference of any dispute under the LOP Policy. Though such disclosure is not clear, now it is certain that the Arbitral Tribunal has not considered the claim raised in present proceedings.
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16. So far as such decision is concerned, it is contended by the Plaintiff that it was conveyed to them only on 22.7.2007 when they received such order and, therefore, suit filed on 14.6.2010 is within time. Though each day is to be properly counted for limitation, the fact remains that even if the intimation is counted from 13.6.2007 being the date of disclosure of not considering the dispute regarding LOP Policy within the reference of arbitration by the Tribunal, considering the fact that atleast one of the date i.e. date of the arising cause of action i.e. 13.6.2007 or date of filing is to be excluded from calculation, it seems that the suit is probably filed on the last date of limitation and, therefore, at this stage, at least, it is to be believed that all such issues certainly need to be examined after affording reasonable opportunity to both the sides to prove or disprove such facts, but rejection of suit on such technical ground is unwarranted as provided in Sub Section (1) of Section 12 of the Limitation Act.
17. It is contended that the order dated 13.6.2007 has not been challenged in appeal under Section 37(2)(a) of the Arbitration and Conciliation Act, 1996 and, therefore, it is Page 17 of 26 HC-NIC Page 17 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT final and, thereby, even if it is presumed that litigation starts from the date of such order i.e. 13.6.2007, then also, suit is barred by limitation atleast by one day.
18. Whereas, as against that, if Plaintiff is able to prove that order dated 13.6.2007 was never disclosed till 22.7.2007, then, suit may be within the period of limitation. Therefore, though it is contended that Plaintiff should have immediately initiated appropriate proceedings either under the Arbitration Act or by filing the suit when Plaintiff has slept over for 3 years, the suit needs to be rejected. However, at present, when it is clear and obvious that to prove all such issues, there must be an opportunity to adduce oral evidence to prove rival case, this Court has not to decide that whether suit is within the limitation or not.
19. I have considered the available record, oral submissions by learned advocate Mr. Mehta, so also short written submissions placed before the Court, however for the aforesaid discussion I do not find any substance in any such submission so as to allow this petition by quashing and setting aside the impugned order under Article 227 of the Constitution Page 18 of 26 HC-NIC Page 18 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT of India.
20. In addition to factual details and submissions, which are emerging from the record and discussion hereinabove, learned advocate for the Defendant - Petitioner is relying on following citations: [A] 'T. Arivandandam Vs. T.V. Satyapal & Another' reported in AIR 1977 SC 2421, wherein, the Hon'ble Supreme Court has held that the suit can be rejected if vexatious and meritless intentions are there in the plaint. However, when there are several other judgments which confirm that so far as the issue regarding limitation is concerned, extending an opportunity to adduce the evidence is necessary, though the suit can be rejected under Order VII Rule 11 of the Code of Civil Procedure for want of limitation. Therefore, the cited case is based upon peculiar facts and circumstances of that case, it would not help to the Petitioner - Defendant.
[B] 'Satyananda Sahoo Vs. Ratikanta Panda' reported in AIR 1997 Orissa 67, wherein, the Orissa High Court has held that limitation Page 19 of 26 HC-NIC Page 19 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT need not be set up as defence but it is the duty of the Court to look into averments and plaint to see that cause of action saves limitation or not. Therefore, such judgment would not be the deciding factor in the present case since it is based upon peculiar facts and circumstances of that case.
[C] 'ITC Limited Vs. Debts Recovery Appellate Tribunal & Ors.' reported in AIR 1998 SC 634 , wherein, the Hon'ble Supreme Court has considered that the claim by the Bank based upon fraud is not convincing and tenable and, therefore the cited case is based upon peculiar facts and circumstances of that case and, therefore, it would not help to the Petitioner - Defendant.
[D] 'Umesh Chandra Saxena Vs. Administrator General, U.P.' reported in AIR 1999 ALLAHABAD 109, wherein, the Allahabad High Court has held that the rejection of plaint was purely for lack of cause of action on the part of the Petitioner in preferring an application for Letters of Administration when it was held that provision of Order VII Rule 11 of the Code may apply to the proceedings under Succession Act also and, therefore, Page 20 of 26 HC-NIC Page 20 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT considering the peculiar facts and circumstances of that case and, therefore, it would not help to the Petitioner - Defendant.
[E] 'Azhar Hussain Vs. Rajiv Gandhi' reported in AIR 1986 SC 1253, wherein, the Hon'ble Supreme Court has held that in case of group practice when pleadings do not disclose the cause of action, petition is not maintainable. Therefore, the cited case is based upon peculiar facts and circumstances of that case and, therefore, it would not help to the Petitioner - Defendant.
[F] 'Sopan Sukhedo Sable Vs. Assistant Charity Commissioner' reported in AIR 2004(3) SCC 137, wherein, the Hon'ble Supreme Court has held that if plaint does not disclose cause of action, plaint can be rejected. However, the High Court has already held that rejection of plaint under Order VII Rule 11 does not preclude the Plaintiff from presenting a fresh plaint in terms of Rule
13. Therefore, the cited case is based upon peculiar facts and circumstances of that case and, therefore, it would not help to the Petitioner - Defendant. Moreover, the Court has reiterated for the purpose of deciding an Page 21 of 26 HC-NIC Page 21 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT application under Order VII Rule 11 (defendant) that the averments of the plaint only are to be looked into and stand taken would be wholly irrelevant at that stage. Therefore, documents and defence by the Defendant need to be ignored.
[G] 'Hardesh Ores (P) Ltd. Vs. Hede & Company' reported in AIR 2007 (5) SCC 614, wherein, the Hon'ble Supreme Court has held that the plaint can be rejected on the ground of limitation only when the suit was barred by law of limitation. Therefore, the cited case is based upon peculiar facts and circumstances of that case and, therefore, it would not help to the Petitioner - Defendant.
[H] 'Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department' reported in 2008 (7) SCC 169, wherein, the Hon'ble Supreme Court has held that provision of Section 14 is applicable to even arbitration proceeding also and that due diligence and in good faith as a matter to be decided on the facts of each case and it cannot be measured by any absolute standards. Therefore, parties are required to adduce evidence before deciding such issue. Thus, Page 22 of 26 HC-NIC Page 22 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT this judgment will also not helpful to the Petitioner - Defendant.
21. The reference to following decisions are material;
[A] The Church of Christ Charitable Trust and Educational Charitable Society, rep. By its Chairman v. Ponniamman Educational Trust, reported in AIR 2012 SC 3912.
[B] Kamala v. Eshwara Sa, reported in AIR 2008 SC 3174.
[C] Kamlesh Babu v. Lajpat Rai Sharma, reported in AIR 2008 SC (Suppl) 1931.
[D] C.Natarajan v. Ashim Bai, reported in AIR 2008 SC 363.
[E] Ramesh B. Desai v. Bipin Vadilal Mehta, reported in AIR 2006 SC 3672.
[F] Raptakos Brelt & Co. v. M/s. Ganesh Property, reported in AIR 1998 SC 3085 [G] State of Orissa v. Klockner and Company, reported in AIR 1996 SC 2140.
Page 23 of 26HC-NIC Page 23 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT [H] Popat and Kotecha Property v. State Bank of India Staff Association, reported in 2005(7) SCC 510.
[I] Ittyavira Mathai v. Varkey Varkey, reported in AIR 1964 SC 907(1).
[I] Municipal Corporation of Delhi v. R.P. Khaitan, reported in 2004(2) GLR 1066.
[J] Surjit Kaur Gill v. Adarsh Kaur Gill, reported in AIR 2014 SC 1476.
which makes it clear that the cause of action means bundle of facts which taken with law applicable to them give Plaintiff right to relief against Defendant. Thereby, application for rejection of plaint has to be decided only on the basis of averments made in the plaint. Thereby, Rule 11(d) of order VII of the Code has limited application and, thus, conclusion that suit is barred under any law must be drawn from averments made in the plaint only. Though the principle of limitation can be raised at any point of time, it is certainly a mixed question of law and facts. Therefore, unless parties are Page 24 of 26 HC-NIC Page 24 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT allowed to adduce evidence, the suit cannot be rejected solely on such ground. Law of limitation relating to suit for possession has undergone a drastic change. Limitation cannot be decided as abstract principle of law, divorced from facts since it is a mixed question of law and facts. The cause of action and thereby limitation is to be culled out on a conjoint reading of all paragraphs of the plaint. When Plaintiff is claiming that agreement is null and void and unenforcible, then, such contention cannot be distinguished with other facts and, thereby, rejection of plaint is not proper. Order VII, Rule 11(d) only applicable where the statement has been made in the plaint, without any doubt or dispute, shows that suit is barred by any law in force, but it does not apply in case of any disputed question. Thereby, disputed question cannot be decided at the time of considering the application under Order VII Rule 11 of the Code. The case of Popat and Kotecha Property (Supra) has been relied upon and referred in more than 100 cases thereafter and, therefore, few trace cases are not relevant.
22. In view of above situation, though there is no substance in the petition so as to disturb Page 25 of 26 HC-NIC Page 25 of 26 Created On Thu Dec 10 01:24:49 IST 2015 C/SCA/3562/2014 CAV JUDGMENT the impugned order, it is to be observed that the Defendants may apply afresh for similar prayer during the trial of the suit, after necessary evidence is to bring on record to prove that Plaintiff had knowledge about the transaction at particular time and, thereby, suit is barred by limitation.
23. Under the above facts and circumstances, this petition is dismissed with the above observations. Rule is discharged.
Sd/-
(S.G.SHAH, J.) * VATSAL Page 26 of 26 HC-NIC Page 26 of 26 Created On Thu Dec 10 01:24:49 IST 2015