Delhi District Court
Sh. Jivan Lal Jaiswal vs M/S True Power International Ltd on 31 January, 2015
IN THE COURT OF SH. SATISH KUMAR:
ADDITIONAL DISTRICT JUDGE2, NORTH,
ROHINI COURTS, DELHI.
CS NO.815/14
Sh. Jivan Lal Jaiswal
S/o Sh. Ram Jatan Jaiswal
Prop. of Vishal Batteries Store
College Road, Maharajganj,
Utter Pradesh. ........Plaintiff
Vs.
M/s True Power International Ltd.
BG135, Sanjay Gandhi Transport Nagar,
Delhi110042. ........Defendant
SUIT FOR RECOVERY OF RS.4,25,000/ (RUPEES
FOUR LACS TWENTY FIVE THOUSAND ONLY).
Date of Institution : 23.07.14
Date of judgment reserved : 31.01.15
Date of Order/Judgment : 31.01.15
Final order : Plaint Rejected/Suit Dismissed
ORDER ON THE APPLICATION U/ORDER VII RULE 11
OF CPC FILED BY THE DEFENDANT:
ORDER:
1. By this order I shall dispose off the application U/o VII rule 11 r.w.s. 151 of CPC being filed by the defendant CS NO.815/14 Jivan Lal Jaiswal Vs M/s True Power International Ltd. Page No.1 of 8 for rejection of the plaint of the plaintiff.
2. That to decide the application under consideration, the brief material facts of this suit are that the plaintiff has filed the suit for recovery of Rs.4,25,000/ (Rupees Four Lacs Twenty Five Thousand only) with pendentelite and future interest against the defendant stated there in that the plaintiff is the proprietor and owner of M/s Vishal Batteries Store, College Road, Maharajganj, Uttar Pradesh. And the defendant is the supplier of batteries, inverters, etc. in the year 2010, the defendant appointed the plaintiff as its authorized distributer to sell the inverters of the defendant. That in the year 2010 at the time of appointing the plaintiff as its authorized distributor, the defendant asked for security from the plaintiff and the plaintiff issued five undated cheques of Rs. One lakh each bearing cheque Nos. 124304124308 payable at State Bank of India, Maharajganj in favour of the defendant on an understanding that those cheques shall not be encashed by the defendant. That in order to increase sale of its product, the defendant, vide its letter dtd.02.06.2010 offered a target to the plaintiff that if the plaintiff, from 01.04.2010 to 31.03.2011, would sell inverters of the defendant of Rs.15 lacs, CS NO.815/14 Jivan Lal Jaiswal Vs M/s True Power International Ltd. Page No.2 of 8 the plaintiff will get 8% of TOD and if the plaintiff sells the inverters of Rs.30 lacs, the plaintiff would get either a Maruti Swift Car or Rs.4.25 lacs in cash. And from 01.04.2010 to 31.03.2011, the plaintiff sold the inverters of the defendant amounting to Rs.32,09,488/ and as such in terms of letter dtd.02.06.2010 of the defendant, the plaintiff become entitled for a sum of Rs.4.25 lacs from the defendant as Turn Over Discount or TOD. But despite repeated requests the defendant has not made the payment of Rs.4.25 lacs.
3. That the present suit has been filled with the following prayers:
a) Pass a decree in favour of the plaintiff and against the defendant for a sum of Rs.4,25,000/.
b) Grant pendentelite and future interest at the rate of 18%p.a. On the decreetal amount in favour of the plaintiff and against the defendant till the time actual payment is made by the defendant.
c) Costs of the suit may also be awarded.
4. That upon notice of the suit the defendant has not filed Written Statement and submitted that the suit of the plaintiff is time barred and also simultaneously moved the application under consideration U/o 7 rule 11 of CPC stated CS NO.815/14 Jivan Lal Jaiswal Vs M/s True Power International Ltd. Page No.3 of 8 there in that the suit of the plaintiff is time barred and as per the provisions of order 7 rule 11 of CPC suit of the plaintiff may kindly be dismissed.
5. That upon notice of the application U/o 7 rule 11 of CPC the plaintiff has filed the reply of the same and submitted that as per the provisions of law the court has to see the entire plaint and his suit is within the period of limitation as mentioned the cause of action in para No.12 of the plaint. And the application of the defendant is without any merit and the same may kindly be dismissed.
6. Having heard the arguments advanced by the Ld. counsel for the parties and after perusal the case file as well as the contents of the application under consideration of the defendant and the reply of the same, this court is of the considered view that as per the averments made in the plaint the transaction between the plaintiff and the defendant was of the period 01.04.10 to 31.03.11 and it is pleaded in para No.12 that the cause of action firstly arose in July, 2012 when the defendant admitted the claim of the plaintiff in the meeting between the plaintiff and its Regional Manager Sh. M. Kumar and undertook to pay the Turn Over Discount and it further arose on 21.08.12 when inspite of paying the Rs.4.25 lacs to CS NO.815/14 Jivan Lal Jaiswal Vs M/s True Power International Ltd. Page No.4 of 8 the plaintiff the defendant fraudulently, presented the cheques No.124307 and 124306 which was kept as security. And the cause of action further arose in September, 2012 when the plaintiff while replying the alleged notice dtd. 30.08.12 of the defendant called upon the defendant to pay the amount of Rs.4.25 lacs towards Turn Over Discount.
7. As per the provisions of order 7 rule 11 of CPC: Rejection of plaint.The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamppaper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaintiff to be barred by any law;
CS NO.815/14 Jivan Lal Jaiswal Vs M/s True Power International Ltd. Page No.5 of 8
8. That the suit of the plaintiff is hopelessly beyond the period of limitation as simply by issuing a legal notice for claiming outstanding does not create any fresh cause of action and the cause of action has to be seen by the court entirely on the averments made in the plaint as well as the documents placed on record. The transaction took place between the plaintiff and the defendant of the period 01.04.10 to 31.03.11 and plaintiff ought to have file a suit on or before 31.03.14 but this suit has been filed on 23.07.14.
9. That the law related to the rejection of the plaint U/o 7 rule 11 of CPC is well settled and the court can exercise U/o 7 rule 11 of CPC at any stage of the suit before registering the plaint of after issuance of the summons at any time. Order 7 rule 11 of CPC interalia, mandates rejection of plaint when it does not disclose a cause of action. An application under this provisions is to be decided entirely on a perusal of plaint and documents filed along with it. Defence of the defendant is not relevant for the purpose of Order 7 rule 11 of CPC nor can it be looked into. The court has to peruse the plaint as a whole to find out whether it discloses a cause of action or not. If the plaint discloses cause of action it cannot be rejected by the court exercising the powers under Order 7 CS NO.815/14 Jivan Lal Jaiswal Vs M/s True Power International Ltd. Page No.6 of 8 rule 11 of CPC. Whether the plaint discloses cause of action is a question of fact which has to be gathered on the basis of averments made in the plaint and taking those averments to be correct as a whole together with the documents filed along with the plaint. If the case is based on the document the same have also to be read along with the averments made in the plaint to find out if there is any cause of action for filing the suit. Reliance is place upon M/s Texem Engineering vs. M/s. Texcomash Export, 179 (2011 Delhi Law Times 963, a Division Bench of this Court has held, thus, "There can be no gainsaying that an application under Order VII rule 11 of CPC for rejection of the plaint has to be decided entirely on a perusal of the plaint and documents filed along with it.
10. A suit which is without any cause of action inasmuch as, is frivolous, vexatious and meritless has to be thrown out at the nascent stage since its continuance will not only burden the already overburdened judicial infrastructure but will also result in harassment of the opposite party which has to face rigmarole of full trial. Reliance is placed upon I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal, AIR 1998 SC 634 wherein it has been held that "question is CS NO.815/14 Jivan Lal Jaiswal Vs M/s True Power International Ltd. Page No.7 of 8 whether a real cause of action has been set out in the plaint or something purely illusory has been stated with the view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions are not permitted in law and a clear right to sue should be shown in the plaint".
11. For the foregoing reasons, this court is of the considered view that as per the provisions of law the suit has to be filed within the period of limitation i.e. three years and the plaintiff ought to have filed this suit on or before 31.03.14 but the same has been filed on 23.07.14 i.e. after the period of limitation of three years and as per the provisions of law the Limitation Act is strictly applicable in the suit and the period of limitation cannot be condoned in suits. Therefore, the application of the defendant U/o 7 rule 11 of CPC is hereby allowed and the plaint of the plaintiff is hereby rejected/suit dismissed being barred by the period of limitation.
12. Decree sheet be prepared accordingly.
Announced in the open (Satish Kumar)
Court on 31/01/15 ADJ02, North, Rohini Courts,
Delhi.
Every page of this order is signed by me.
CS NO.815/14 Jivan Lal Jaiswal Vs M/s True Power International Ltd. Page No.8 of 8
CS No.815/14
31.01.2015
Present: Ld. Proxy counsel for the parties.
Vide my separate order announced in the open court today the application of the defendant U/o 7 rule 11 of CPC is hereby allowed and the plaint of the plaintiff is hereby rejected/suit dismissed being barred by the period of limitation.
File be consigned to record room after due compliance.
(Satish Kumar) ADJ2, North, Rohini Courts, Delhi 31.01.2015 CS NO.815/14 Jivan Lal Jaiswal Vs M/s True Power International Ltd. Page No.9 of 8