Calcutta High Court
Bengal Energy Ltd vs Trl Krosaki Refractories Ltd on 19 April, 2024
Author: Sugato Majumdar
Bench: Sugato Majumdar
OCD - 6
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
COMMERCIAL DIVISION
CS-COM/633/2024 [OLD NO CS/249/2015]
IA NO: GA/2/2023
BENGAL ENERGY LTD.
VS
TRL KROSAKI REFRACTORIES LTD.
BEFORE:
THE HON'BLE JUSTICE SUGATO MAJUMDAR
Date: 19th April, 2024 Appearance:
Mr. Anirban Ray, Adv.
Mr. Varun Kothari, Adv.
Mr. Aasish Choudhury, Adv.
Ms. Muskan Bengani, Adv.
...for the Plaintiff.
Mr. Sarathi Dasgupta, Adv.
Mr. Pratik Ghosh, Adv.
Mr. Avishek Roy Chowdhury, Adv.
...for the Defendant.
The Court: GA 2 of 2023 is filed by the Defendant. This is a demurrer application.
Sum and substance of the petition is that the plaint filed in the suit, is false and frivolous; on perusal of plaint it is evident that suit is filed praying for money decree pertaining to transactions which took place in the year 2009; although it is alleged in the plaint there was acknowledgement of debt in writing, that was never Page |2 acknowledged; therefore, qua such averments in the plaint, the relief plaint is barred by law of limitation. Prayer of the Defendant is that the plaint should be rejected.
Parties exchanged their Affidavit-in-Opposition. Mr. Dasgupta appearing for the Defendant, contended that the transactions took place in the year 2009. There is no acknowledgement in writing under Section 18 of the Limitation Act, 1963. Although, referred to various negotiations between the parties, prima facie, those negotiations are not to be considered for the purpose of Section 18 of the Limitation Act, 1963. It is further submitted that although limitation is a mixed question of law and fact, it depends on particular facts of any case. Plaint in this case, prima facie, shows without anything else that the suit is barred by limitation. He relied upon the Judgment of the Supreme Court of India in Rajendra Bajoria Vs. Hemant Kumar Jalan, [(2022) 12 SCC 641].
Per contra, Mr. Ray appearing on behalf of the Plaintiff argued that in this case limitation is a mixed question of law and fact; referring to the list of documents annexed to the plaint, it is submitted that negotiations between the parties, acknowledgement of debt and extension of time are all questions of facts which cannot be decided at this stage but except on trial. Mr. Ray further submitted that the parties had running-account and had jural relationship at the time of institution of the suit. Mr. Ray relied upon the decision of the Supreme Court of India in Salim D. Agboatwala and Ors. Vs. Shamalji Oddhavji Thakkar and Ors. [(2021) 17 SCC 100]; Kotak Mahindra Bank Limited Vs. Kew Precision Parts Private Limited and Ors. [(2022) 9 SCC 364]. It is axiomatic that considering a plea of rejection of plaint, the plaint shall be considered only. Limitation is a mixed question of law and fact. But that is not a universal rule. If the plaint, prima facie, gives impression that the suit is barred by limitation then the plaint can obviously be Page |3 rejected on that ground but the same depends on specific facts and circumstances of that particular case. In the instant case, the Plaintiff averred in the plaint that money became due and payable on 31st August, 2015. The suit was filed in the year 2015 itself. The plaint refers to various communications, agreements and negotiations between the parties. All these negotiations, communications and agreements are questions of fact to be established on evidence. Whether there was extension of time or acknowledgement in writing or not in the course of negotiations, communications and agreements, are questions of fact to be established on evidence. The question of limitation should be considered and is to be considered in the perspective of these facts. More so disputed facts are in existence as to whether there was acknowledgement in writing. Therefore, in this case, limitation is obviously a mixed question of law and fact. Prima facie, reading of the plaint does not yield an impression or finding that the suit is barred by limitation. As mentioned above, it is averred in the plaint that money became due on 31st August, 2015. Therefore, this is not a fit case where plaint should be rejected on the ground of limitation.
However, the issue of limitation may be taken up as a preliminary point and evidence to a limited extent, may initially be adduced for adjudication of this preliminary point.
GA 2 of 2023, for reasons stated above, stands dismissed. Fix on 9th May, 2024 for framing of issues and Defendant shall take necessary steps in the meantime.
(SUGATO MAJUMDAR, J.)