Gujarat High Court
Gujarat Maritime Board vs Jogadia Polymers Pvt. Ltd. on 8 October, 2018
Bench: Akil Kureshi, B.N. Karia
C/FA/2623/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL No. 2623 of 2018
FOR APPROVAL AND SIGNATURE :
HONOURABLE Mr. JUSTICE AKIL KURESHI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
==============================================================
1 Whether Reporters of Local Papers may be allowed to see the Yes
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 to No
the interpretation of the Constitution of India or any order
made thereunder ?
==============================================================
GUJARAT MARITIME BOARD
Versus
JOGADIA POLYMERS PVT. LIMITED
==============================================================
Appearance :
Mr PR NANAVATI, Advocate for the PETITIONER(s) No. 1
Mr SALIL M THAKORE, Advocate for the RESPONDENT(s) No. 1
==============================================================
CORAM: HONOURABLE Mr. JUSTICE AKIL KURESHI
and
HONOURABLE Mr. JUSTICE B.N. KARIA
8th October 2018
CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE B.N. KARIA)
Page 1 of 27
C/FA/2623/2018 CAV JUDGMENT
The appellant-original plaintiff by this Appeal, preferred under Section 96 of the Civil Procedure Code, 1908 ["the Code" for short], has challenged the judgment and order dated 17th March 2017 passed below Application Exh. 22 by the learned Judge, Commercial Court, Rajkot in Commercial Civil Suit No. 20 of 2016 by rejecting the plaint under the provisions of Order VII Rule 11 CPC.
In order to adjudicate the controversy between the parties, at the outset, it is imperative to cull out respective facts of the case on hands from the pleadings in suit filed by the plaintiff to the extent of deciding the dispute raised before us.
In a Special Civil Suit No. 15 of 2011 filed before the Court of learned Special Judge, Special Court [Alang], Bhavnagar filed under Order XXXVII of the Code, the appellant-original plaintiff [hereinafter referred to as, "the plaintiff"] sought recovery of a sum of Rs. 1,98,63,129/= from the opponent-original defendant [hereinafter referred to as, "the defendant"] towards the long standing dues to be paid by the defendant against various head enumerated therein.
Page 2 of 27 C/FA/2623/2018 CAV JUDGMENT
Upon noticing that the suit involves commercial dispute of a specified value; as defined under Section 2 [c] read with Section 12 of the Commercial Courts, Commercial Division & Commercial Appellate Division of High Courts Act, 2015 ["hereinafter to be referred to as, "the Act of 2015"], the learned Special Judge, Bhavnagar under Order dated 23rd May 2016 made below Exh. 1 in Special Civil Suit No. 15 of 2011, transferred the case papers to the Commercial Court, Rajkot, relying upon provisions of Sections 9 [1] and 15 [2] of the Act of 2015. Accordingly, the said suit came to be transferred to the Commercial Court at Rajkot, wherein it was re-numbered as Commercial Civil Suit No. 20 of 2016.
In an application moved by the defendant for rejection of the plaint under Order VII Rule 11 CPC, the main resistance amongst other things was that the suit being barred by the law of limitation, need not be entertained.
The said application Exh. 22 came to be resisted by the plaintiff-Gujarat Maritime Board inter alia on the ground that the amount fallen due towards various charges had been duly acknowledged by the defendant through its communications dated 22nd March 2010; 20th August 2010 and 27th August Page 3 of 27 C/FA/2623/2018 CAV JUDGMENT 2010 seeking further time to pay off the dues, and therefore, in view of the provisions of Section 18 of the Limitation Act, 1963, the suit could not be said to be time barred.
Before the Commercial Court, it was the case of the plaintiff that the defendant-Jogadia Polymers Private Limited had entered into a contract with the plaintiff-Gujarat Maritime Board whereunder Plot No. 144 in the Ship-breaking Yard at Bhavnagar was allotted to it. However, as per the plaintiff, the defendant failed to pay beaching charges, pilot charges and other ancillary charges; as leviable in the terms of the applicable regulations of 1994, concerning ship-breaking yards, qua the same plot allotted to the defendant. That, as per the terms and conditions of the said contract, the plaintiff had already taken possession of Plot No. 144 on 27th December 2007 from the respondent and therefore also, liable to pay charges fallen overdue under the terms of agreement.
The learned Commercial Judge, Commercial Court, Rajkot after hearing the respective parties at length, concluded that the plaint does not bear any dates; save the date when possession of Plot No. 144 was taken back; the date when the alleged acknowledgment of debt has been made, and therefore, Page 4 of 27 C/FA/2623/2018 CAV JUDGMENT in absence of there being any cause of action duly pleaded by the plaintiff; and more so, when the plaintiff had failed to bring on record the contract between the parties on the record of the matter, the learned trial Judge held the plaint being devoid of necessary cause of action, and accordingly, granted application Exh. 22 and thereby ordered rejection of the plaint, giving rise to the present proceeding. The learned Judge was however of the opinion that the suit was not barred by limitation. He was of the opinion that there was acknowledgement of the debt by the defendant with a promise to pay the same and therefore, ingredients of section 25 of the Contract Act were satisfied. The suit which was filed within three years thereafter was within the period of limitation.
Heard learned advocates for the respective parties at a considerable length.
Learned advocate Shri P.R Nanavati appearing for the appellant-Gujarat Maritime Board [hereinafter to be referred to as, "the plaintiff-Board"] assailed the impugned order made below Application Exh. 22 terming it to be against the law, facts and erroneous in as much as it grossly errs in not appreciating the pleadings of the plaintiff-Board and the relief Page 5 of 27 C/FA/2623/2018 CAV JUDGMENT claimed thereunder. He added that the amount which is sought to be recovered by way of a suit is in respect of statutory charges under the head of LET-LDT, plot development charges, plot rent and other relevant charges prescribed by the Board under the provisions of the Gujarat Maritime Board [Conditions & Procedures for Granting Permission for Utilizing Ship Recycling Plots] Regulations, 2006 and therefore, there is no dispute regarding payment of the statutory charges payable by the defendant towards ship-breaking plot held by it.
On the aspect of approach of the Court below, counsel for the plaintiff contended that the learned Judge has not properly appreciated the language used in Order VII Rule 11 CPC and thereby wrongly interpreted it.
On the aspect of veracity of the claim of the plaintiff- Board, counsel contended that the Court below grossly erred in observing that the agreement arrived at by and between the parties has not been produced, and therefore, veracity of the claim cannot be examined and ascertained. He drew attention of this Court to the fact that when it is a matter of common knowledge that once the charges for various services are statutorily prescribed under the regulations, and by virtue of Page 6 of 27 C/FA/2623/2018 CAV JUDGMENT the said provisions of the regulations, the same are levied, obviously, the covenants forming part of the agreement/ contract being statutory in nature, can always be produced during the course of proceedings at the trial.
On the aspect of reckoning the time limit for filing the suit, counsel contended that this being a mixed question of law and facts, and therefore, unless the said aspect has been deliberated upon and decided, and proved by leading evidence on record, it cannot be said that the suit would be barred by limitation, and therefore, the findings on the issue is erroneous.
Learned advocate further contended that the material facts were clearly pleaded in the plaint by the petitioner as well as cause of action was also duly disclosed in the plaint. That, the plaint could not have been rejected at the threshold in exercise of power under Order VII Rule 11[d] CPC. That, in the context of application Exh. 22, under Order VII Rule 11 [d] CPC , the Court has to examine the averments made in the plaint only and the plaint is required to be read as a whole. That, the defence is available to the defendants or the plea taken by them in the written statement or any other application filed by them cannot be the basis to decide Page 7 of 27 C/FA/2623/2018 CAV JUDGMENT application under Order VII Rule 11 [d] CPC. That, only averments in the plaint are germane to decide the suit. That, the plaintiff has clearly averred in the plaint of showing the cause of action for filing the suit for recovery of amount as per the agreement. That, the learned trial Judge has committed error in holding that there was no cause of action by rejecting the plaint under Order VII Rule 11 [a] CPC by an order dated 17th March 2017. Hence, it was requested by learned advocate for the appellant/plaintiff to quash an set-aside the impugned order by allowing this appeal.
In support of his arguments, learned advocate has relied on the following decisions :
[a] Virender Nath Gautam
Vs.
Satpal Saingh,
AIR 2007 SC 581;
[b] Popat and Kotecha Property
vs.
State Bank of India Staff Association,
[2005] 7 SCC 510;
[c] Ashraf Kokkur
v.
KV Abdul Khader & Ors.,
[2015] 1 SCC 129;
Page 8 of 27
C/FA/2623/2018 CAV JUDGMENT
[d] Chhotanben & Anr.
vs.
Kiritbhai Jalkrushnabhai Thakkar
[2018] 6 SCC 422;
Shri Salil Thakore, learned counsel for the respondent- defendant submitted that the trial Court was fully justified in coming to the conclusion that there were virtually no dates mentioned in the plaint, and therefore, the Court was not in a position to identify the due date in respect of the outstanding to the plaintiff. The trial Court has further observed that computation of the exact amount due from the defendant to the plaintiff cannot be said to be precise an accurate. That, the plaint, documents produced by the plaintiff does not bear any dates, and therefore, the Court below was not in a position to compute the amount claimed by the plaintiff. It was further submitted that the cause of action for filing of the suit by the plaintiff was not apparently pleaded or can be read from the plaint. That, Order VII Rule 11[d] CPC clearly provides that where the cause of action is not borne out from the reading of the plaint, the plaint is required to be rejected. That, the alleged contract between the parties was not produced on record by the plaintiff, however, was bound to produce by filing the suit. Page 9 of 27 C/FA/2623/2018 CAV JUDGMENT That, liability of the defendant cannot be ascertained on such de hors the contract. That, it is nowhere found from the pleadings that in what manner the said amount was calculated and the date from which suit amount was due. That, in absence of any contract between the parties placed on the record, there is no cause of action in the plaint, and hence, the plaint was rightly rejected by the trial Court. That, Order VII Rule 14 CPC requires the plaintiff to produce all the documents on which the plaintiff relies. He also drew attention of this Court to the provisions of Order VII Rule 2 CPC arguing that necessary particulars must be pleaded by the plaintiff in the plaint itself. That, in the year 2004, period of agreement got expired and the plaintiff was obliged to file the suit within three years from the date of expiry of the agreement. Admittedly, the plaintiff had filed the suit in the year 2011 and hence, it is clearly barred by the provisions of Limitation Act. He contended that there was no acknowledgment of the debt within the limitation period so as to give extension of limitation, nor was there acknowledgment of the debt coupled with promise to pay so as to apply Section 25 of the Contract Act. Offer of the defendant to pay the arrears was for settlement of all disputes and on Page 10 of 27 C/FA/2623/2018 CAV JUDGMENT condition of regularizing the allotment of the plot. Such offer cannot be treated as a promise to pay since promise, as referred to in Section 25 of the Contract Act must be unconditional. That, non disclosure of cause of action for filing the suit by the plaintiff requires consideration by the Court at the stage of rejection of plaint under Order VII Rule 11[d] CPC. That, the plaintiff must aver clearly facts necessary to enable him to obtain decree and must produce documents on which cause of action is based. That, when the cause of action was based on an agreement, the same must be produced on record by the plaintiff. That, the plaintiff has disclosed before the trial Court that no such documents were available with him. That, plaint is rightly rejected by the Court below and no interference is required by this Court. It was requested by learned counsel for the respondent to dismiss the appeal and thereby confirm the decision. In support of his arguments, the following decisions were relied upon.
[a] Church of Christ Charitable Trust & Educational Charitable Society [Represented by its Chairman] vs. Ponniamman Educational Trust [Represented by its Chairperson/Managing Trustee], reported in [2012] 8 SCC 706;
Page 11 of 27 C/FA/2623/2018 CAV JUDGMENT
[b] Hardesh Ores [P] Limited vs. Hede &
Company, reported in [2007] 5 SCC 614;
[c] Shri H.D Vashista v. M/s. Glaxo
Laboratories [I] Private Limited, reported in [1978] 1 SCC 170;
[d] T. Arivandandam v. T.S Satyapal & Anr.,
reported in AIR 1977 SC 2421 [1].
[e] Madras Steam Navigation Co. Limited v.
Shalimar Works Limited., reported in AIR 1915 Cal. 681;
[f] Shyam Sundar Mishra vs. Municipal Chairman, Parlakimedi, reported in AIR 1964 Orissa 111;
[g] Union of India v. Bikaner Textiles & Ors., reported in AIR 1961 Raj 211; and [h] Gurdit Singh & Ors. vs. Munsha Singh & Ors., reported in [1977] 1 SCC 791.
Before we deal with the contentions of the parties, it would be appropriate, if we refer to the application Exh. 22 submitted by the defendant praying to reject the plaint. It is averred by the defendant in their application that in respect of the suit plot no. 144, dispute was raised by the plaintiff and false allegations were made against the defendants of the alleged outstanding amount. That, in the year 2007, possession of the suit plot was illegally taken away by the plaintiff. It is further averred that legal notice was issued by the plaintiff in Page 12 of 27 C/FA/2623/2018 CAV JUDGMENT the year 2007 for recovery of the amount which was duly replied to by the defendant; as the plaintiff was not legally entitled to recover the alleged amount. As no proceedings were initiated by the plaintiff within the period of limitation prescribed to recover the alleged amount, and therefore, the suit was barred by the provisions of the law of limitation and hence, it was requested to dismiss the suit as it was barred by the provisions of the limitation act. This application was resisted by the plaintiff. The learned Judge, while deciding the issue of limitation in his order, has observed in para 22 as under :-
"With the aforesaid legal position in mind, the letter mark 4/10 may be revisited. In the said letter, the defence has specifically acknowledged that new partners on their behalf are 'ready and willing' to deposit all the outstanding dues of GMB as per rules and regulations, subject to regularizing our plot permanently' Thus unequivocal readiness to deposit all outstanding dues, as on the date of the letter, ie., 27.08.2010, can be inferred from the said letter. This, coupled with the fact that on perusal of the case law under Section 18 of the Limitation Act, it is clear that even an admission of the existence of an unadjusted liability would bring the case within the purview of the said section. There need not be any clear admission of liability, but if there is an admission on the facts of which liability is a necessary consequence, that would be sufficient acknowledgment for the purpose of limitation."Page 13 of 27 C/FA/2623/2018 CAV JUDGMENT
Thus, it was clearly observed by the trial Judge that the defendant had admitted the facts of the existence of an unadjusted liability, and therefore, sufficient acknowledgment for the purpose of limitation was issued by the defendant. The trial Judge has further observed in para 23 of the impugned decision that the language of the letter dated March 4, 2010 indicates that there was an acknowledgment of debt by the defendant to the plaintiff. In para 28 of the order, the trial Court has observed as under :
"28. This court is in no doubt that when the request for regularizing the plot is made before authorities, and readiness and willingness to pay the due amount for regularization of the plot (albeit, by a third-party on behalf of the defendant), the conditions of Section 25 of the Indian Contract Act stands satisfied. The same would amount to acknowledgment of the debt with a promise to pay and therefore a fresh period of limitation from 19.03.2010 would commence. Naturally, therefore when the suit was filed on 16.08.2011, it was within the period of limitation. This court does concluded that the present application under Order 7 Rule 11 of the Code cannot be sustained for the suit being allegedly time barred."
Now, before dealing with factual scenarios, the spectrum of Order VII Rule 11 CPC in the legal ambit needs to be noted. Page 14 of 27 C/FA/2623/2018 CAV JUDGMENT
While allowing the appeal, the Supreme Court in Chhotanben & Anr. vs. Kiritbhai Jalkrushanabhai Thakkar & Ors. [Supra] in para 15 has observed as under :
"What is relevant for answering the matter in issue in the context of the application under Order 7 Rule 11(d) CPC, is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order 7 Rule 11(d). Only the averments in the plaint are germane."
Thus, the issue regarding the suit being barred by limitation in the facts of the present case is a triable issue and for which the reason the plaint cannot be rejected at the threshold in exercise of power under Order VII Rule 11 [d] CPC. The findings given by the learned trial Judge are not legal and proper as well as consistent with the settled legal position expounded in various decisions of the Supreme Court with respect to the issue concerned. The learned trial Judge has gone into area of no cause of action apparent from the reading of the plaint and therefore, the plaint is required to be rejected. It appears from the application Exh. 22 that no such plea was raised by the defendant for rejecting the plaint on the ground of "no cause of action" pleaded by the plaintiff. However, it Page 15 of 27 C/FA/2623/2018 CAV JUDGMENT appears from the order impugned herein that after completing the arguments of respective sides, in a reply, arguments were advanced by learned advocate that there was no cause of action for the plaintiff to file the suit and reject the same. Certainly, under Order VII Rule 11[a] CPC, the Court would examine the issue at any point of time; if requested. Here, we would like to translate the contention raised in para 9 of the plaint, which provides as under :-
"As the defendant failed to pay the cost in due of the plaintiff as per the conditions of the agreement within limitation of time on 27th December 2007, the possession of the suit plot was taken over by the plaintiff and frequent requests were made by the defendant to repay the amount by letters dated 22nd March 2010; 20th August 2010 and 27th August 2010. However, no amount was repaid by the defendant as demanded by the plaintiff and hence, the cause of action arise for filing of the suit."
The plaintiff has also calculated an amount of Rs. 1,97,63,129/= as clearly shown in para 7 of the plaint. From the clear and plain reading of the averments made in the plaintiff in para-9, we are of the opinion that the plaintiff has clearly pleaded the cause of action for filing the suit.
In case of Virendra Nath Gautam v. Satpal Singh [Supra], the Apex Court in connection with provision enunciated in Page 16 of 27 C/FA/2623/2018 CAV JUDGMENT Sections 62, 83 of the Representation of People Act, 1951 read Order VII Rule 11[a] CPC has observed as under :-
"31. The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', 'indispensable', 'elementary' or 'primary' [Burton's Legal Thesaurus (Third Edn.); P349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party."
From the pleadings, it appears to us that the material facts on which the plaintiff's cause of action would arise was duly placed on the record by the plaintiff. The material facts would depend upon the facts of each case and no rule of universal application can be laid. At any point of time, if it is declared by the plaintiff that agreement or any other relevant documents Page 17 of 27 C/FA/2623/2018 CAV JUDGMENT were not available or would be made available subsequently, or unable to produce the same would not meant that during the course of trial also, the plaintiff would not be in a position to produce the same. The suit cannot be rejected on the ground of non production of the documents.
The Supreme Court in the case of Popat & Kotecha Property vs. State Bank of India Staff Association [Supra], in its decision at para 10, has observed as under :
"Clause (d) of Order 7 rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit barred by any law in force."
While considering application under Order VII Rule 11 CPC, the Court is not required to take into consideration the defence set up by the defendant in its written statement. The question whether the plaint discloses any cause of action is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. What is to be seen is whether or not the meaningful reading of the plaint discloses cause of action. While considering the Page 18 of 27 C/FA/2623/2018 CAV JUDGMENT application, the strength or weakness of the case of the plaintiff is not to be seen. The Court should look at the plant and documents accompanying the plaint and not the defence of the defendant or the documents relied upon by the defendants. The cause of action is to be culled out on a conjoint reading of all the paragraphs of the plaint. There is a difference between non disclosure of cause of action in the plaint and the absence of cause of action for the suit. It is not competent for the Court to go into the correctness or otherwise of all the allegations constituting the cause of action, correctness or otherwise of the allegations constituting the cause of action is beyond purview of Order VII Rule 11[a] CPC where the allegations made in the plaint prima facie discloses cause of action, the plaint cannot be rejected.
The Apex Court in the case of Hardesh Ores [P] Limited v. Hede & Company [Supra], in its decision at para 25 has held and observed as under :-
"25. The language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that 'law' within the meaning of clause (d) of Order 7 rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is Page 19 of 27 C/FA/2623/2018 CAV JUDGMENT essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entity, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to call out a sentence or a passage and to read it out of the contest in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense."
The Apex Court in case of Church of Christ Charitable Trust & Educational Charitable Society [Supra] has, in para 10 of the decision, held and observed as under :-
".. ..It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial."
The Apex Court in the case of Gurdit Singh & Ors. vs. Munsha Singh & Ors. [Supra] held and observed that, ".. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts and Page 20 of 27 C/FA/2623/2018 CAV JUDGMENT circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit."
In case of Pipraich Sugar Mills Limited v. Pipraich Sugar Mills Mazdoor Union, reported in AIR 1957 SC 95, while allowing the appeal moved by the management, the Apex Court observed that, "..The question whether there was consideration for the promise made the management in its letters dated 3rd January 1951 and 10th January 1951 arises only if the offer contained in the p73 letters ha been accepted by the respondent, so as to ripen into an agreement. And if there was no concluded agreement between the parties, as the Tribunal itself had held, then the further question as to whether it was supported by consideration would not arise, nor would there be any question of its becoming a one of the terms of the service."
In the case of Shri HD Vashistha v. M/s. Glaxo Laboratories [I] Private Limited [Supra], the Apex Court held Page 21 of 27 C/FA/2623/2018 CAV JUDGMENT that a suit challenging the dismissal cannot stand, if the material facts necessary to constitute a cause of action regarding the illegality of the dismissal had not been averred in the plaint.
In the case of T. Arivandandam v. T.S Satyapal & Anr. [Supra], the Apex Court held that, "...the trial Courts should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage."
In the case before Calcutta High Court in the matter between Madras Steam Navigation Company Limited vs. Shalimar Works Limited, Division Bench of this Court,in its decision at para 8, held and observed as under :
"8. It may be a question whether a plaint, framed as this is fairly supports a claim based on trespass, more especially as the plaint is defective in an important; particular. It is imperative under Order VII, Rule 1 (e), that the plaint should contain, in addition to other particulars, "the facts constituting the cause of action and when it arose." There is no specific allegation in the plaint when the cause of action arose; and yet if the plaint is to be treated as permitting an alternative claim on the ground of trespass, there would be a different date according as it was treated as a suit for malicious prosecution or a suit for trespass."Page 22 of 27 C/FA/2623/2018 CAV JUDGMENT
In case of Shyam Sundar Mishra v. Municipal Chairman, Parlakimedi [Supra], a dispute raised by an employee who was aggrieved by his dismissal from service by his employer. The Court held and observed that, "..if any employee who feels aggrieved by his dismissal from service by his employer has a right to sue not only for a declaration that his dismissal was wrongful, but also for the consequential relief for payment of arrears of wages an other emoluments."
In case of Union of India v. Bikaner Textiles & Ors. [Supra], considering the facts of the cited case, the Bench observed that, "..This is not a promise of the kind mentioned in Section 25 [3] of the Indian Contract Act..", and therefore, the plaintiff cannot base his claim on the above said document.
It is clear that in order to consider Order VII Rule 11 CPC, the Court has to look into the averments made in the plaint as a whole and the same can be exercised by the trial Court at any stage of the suit. It is also clear that the averments in the instant case [Exh. 22] are immaterial and it is the duty of the Court to scrutinize the averments/pleadings in the plaint. The trial Court has overlooked these facts in deciding the Page 23 of 27 C/FA/2623/2018 CAV JUDGMENT application Exh. 22 and thereby ignored the averments made in the plaint. At this stage, the pleas taken by the defendant in its application Exh. 22 or raising of the dispute of non disclosure of cause of action in the plaint are wholly irrelevant, as the matter is to be decided only on the plain averments.
Before closing, we may refer to the question of limitation as addressed by the learned Judge. In this context, the trial Court has relied heavily on letter dated 27th August 2010 written by the defendant No.2 to the plaintiff (Mark 4/10). In such letter, it was conveyed that the defendant is "ready and willing to deposit all the outstanding dues of GMB as per rules and regulations, subject to regularizing each plot permanently". According to the learned Judge, this amounted to acknowledgment of the due with promise to pay. In terms of section 25 (3) of the Indian Contract Act, the learned Judge was of the opinion that from such date, the plaintiff would have a fresh period of limitation for filing the suit. Accordingly therefore, when the suit was filed on 16th August 2011, in the opinion of the learned Judge, was within the period of limitation.
In our opinion, the contents of the said letter (Mark Page 24 of 27 C/FA/2623/2018 CAV JUDGMENT 4/10) do not establish a promise to pay the debt. It was merely an offer to pay the dues; subject to regularizing the plot permanently. This was thus, a conditional offer and not an unconditional promise to pay. In terms of this offer, if the plaintiff had accepted the terms only then the same would result into a concluded contract. In any case, the offer for payment was not unconditional and therefore, could not be seen as a promise. As referred to in sub section (3) of section 25 of the Contract Act when made in writing and signed by the person concerned or his agent on his behalf, would give fresh period of limitation.
This, however, by itself would not mean that the suit, in our opinion, was barred by limitation. As noted, this is a mixed question of law and facts. According to plaintiff, the defendant had not paid the dues and had over stayed their occupation of the plot. According to the plaintiff, on account of non-payment of the lease charges, non-payment of renewal charges and not applying for renewal of the lease, the GMB resumed the possession of the plot in question on 27th December 2007, as per Rules and regulations. The claim of the GMB for lease rent therefore, was extended till 27th December 2007. In this Page 25 of 27 C/FA/2623/2018 CAV JUDGMENT context, the question would arise whether there was acknowledgment of the debt by the defendant within the period of limitation which would give fresh lease of limitation. In this context, the letters written by the defendant particularly, Mark 4/8 dated 19th March 2010 and Mark 4/10 dated 27th December 2010 would assume significance. These aspects must be judged at the time of trial. At any rate, plaint cannot be rejected on that ground.
Guided by the settled principles of law, referred to hereinabove, we have no hesitation in reversing the view taken by the learned trial Judge by setting aside the impugned Order dated 17th March 2017 allowing the Application Exh. 22 moved by the respondent-original defendant under Order VII Rule 11 CPC, and thereby rejecting the plaint of the appellant- plaintiff.
Resultantly, considering the facts of this case, the impugned judgment and order dated 17th March 2017 passed below application Exh. 22 in Commercial Civil Suit No. 20 of 2016 is hereby set-aside. First Appeal is allowed with no separate order as to costs. Consequently, the plaint is restored to its original file. The learned Judge, Commercial Court, Page 26 of 27 C/FA/2623/2018 CAV JUDGMENT Rajkot shall proceed afresh in accordance with law.
Registry to forthwith transmit R&P to the concerned Court.
[Akil Kureshi, J.] [B.N Karia, J.] At this stage, learned counsel for the respondent prayed that this judgment be stayed to enable the respondent to prefer appeal. It is provided that the trial Court shall not commence suit proceedings till 15th November 2018.
[Akil Kureshi, J.] [B.N Karia, J.] Prakash Page 27 of 27