Delhi High Court
M/S Decor India (P) Ltd. vs Delhi Stock Exchange Association Ltd. on 1 June, 2012
Author: Kailash Gambhir
Bench: Kailash Gambhir
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 745/2004
Judgment delivered on: 01.06.2012
M/S. DECOR INDIA (P) LTD. ..... Plaintiff
Through Mr. Akhil Sibbal, Adv.
versus
DELHI STOCK EXCHANGE
ASSOCIATION LTD. ..... Defendant
Through Mr. Jugal Kishore Seth, Sr. Advocate
With Ms. Shalini Kapoor, Adv
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
I.A. No. 15427/2010(O. 7 Rule 11 of CPC)
1. By this application moved under Order 7 Rule 11 r/w Section 151 of
CPC, the defendant seeks rejection of the plaint on the ground that the
present suit filed by the plaintiff is barred by limitation under Order 7 Rule
11 (d) of the Code of Civil Procedure.
2. Before I proceed to decide the present application, it would be
necessary to give a brief background of the facts of the present case. The
plaintiff is a private limited company which is engaged in the business of
interior decoration, furnishing and renovation work etc. and was given the
contract by the defendant to carry out the renovation and interior works in
CS(OS) No. 745/2004 Page 1 of 18
their new and old buildings. On 16.7.98, the contract for the value of
Rs.1,77,97,347.90 was awarded by the defendant in favour of the plaintiff
for the new building and on 1.8.98 the contract for the value of
Rs.59,73,075.90 was awarded for the old building. The plaintiff executed
both the said awarded contracts including extra/additional jobs arising
during the pendency of the said contract and finally the new building was
completed and occupied on 13.12.99 with the recording of its virtual
completion on 12.4.2000, while the old building was completed and
occupied on 13.12.99 with the virtual completion on 22.4.2000. The
plaintiff had submitted its final bill for the new building on 11.11.99 for a
sum of Rs.2,57,81563.59, and a final bill dated 29.11.99 for Rs.93,98,400.51
was submitted by the plaintiff with regard to the old building. Both the said
bills were submitted by the plaintiff with the defendant and the same were
later forwarded by the defendant to the Architect for issuing final certificate
vide their letters dated 12.3.2000 and 22.3.2000 respectively. As per the
plaintiff, the Architect while issuing the final bill certificates for the new
and the old buildings made certain deductions in the said final bills by
changing their measurements as recorded earlier and also by reducing
certain rates and consequently with the deductions as carried out by the
Architect the bill amount for the new building was reduced to
Rs.2,41,34,961.82 and for the old building the same was reduced to
Rs.89,98,400.51/-. The plaintiff sent various reminders to the defendant
for carrying out necessary corrections in their final bills but the defendant
CS(OS) No. 745/2004 Page 2 of 18
did not give any response and finally vide their letter dated 25.9.2001, the
defendant refused to make payment of the balance outstanding dues of the
plaintiff. The plaintiff in its reply dated 26/29.9.2001 seriously refuted the
allegations leveled by the defendant in their letter dated 25.9.2001.
Standing by the amount raised in the final bills and after giving adjustment
of the payment received by the plaintiff against the said bills an amount of
Rs.38,16,270.10 was still left outstanding in respect of the both the
buildings as per the case set up by the plaintiff. The plaintiff has also
claimed compound interest on the said outstanding amount besides
claiming the amount of the earnest money deposited by the plaintiff along
with tender forms. Combining the total claims, the plaintiff has filed the
present suit for recovery of Rs.72,30,450.66 together with the claim of
pendent lite and future interest @ 16.875% from the date of the filing of
the suit till realization.
3. In the backdrop of aforesaid facts, rejection of the plaint is
sought by the defendant through the present application, primarily on the
ground that as per the own case of the plaintiff, the final bill was dated
11.11.99 and the final certification of the bills by the Architect was issued
on 23.6.2000 and thus filing of the suit by the plaintiff in May 2004 is
clearly beyond the period of limitation. It is also the case of the defendant
that the suit filed by the plaintiff is barred by limitation is evident on a
bare perusal of the averments made in the plaint and as per the
defendant no evidence is required to be adduced to prove this fact.
CS(OS) No. 745/2004 Page 3 of 18
5. Arguing the present application, Mr. Jugal Kishore Seth,
learned Senior Advocate appearing for the defendant submitted that the
plaintiff was given the contract for the renovation of the two buildings of
the defendant referred to as the old building and new building. The counsel
further submitted that on 1.8.1998 the plaintiff had received a letter for
award for a contract value of Rs.59,73,075.90 for the old building and on
16.7.98, the contract was awarded in favour of the plaintiff of a contract
value of Rs. 1,77,97,347.90 for the new building. Counsel further
submitted that in para 26 of the plaint, relating to the cause of action the
plaintiff has taken a stand that cause of action in favour of the plaintiff
with regard to the final bills arose on 29.11.1999 for the total work done
by the plaintiff for the old building. The plaintiff has further averred in
the said para that the cause of action also arose on 23.6.2000 when the
Architect of the defendant had issued a certificate for final bill for Rs.
2,41,34,961.82. The plaintiff has further claimed cause of action through
two letters dated 26.9.2001 and 1.10.2001 through which the plaintiff had
called upon the defendant to make the payment of the outstanding amount.
The counsel further submitted that final cause of action the plaintiff has
claimed to have arisen on 25.9.2001 when as per the plaintiff the General
Manager refused to make payment of the said outstanding dues of the
plaintiff. Placing reliance on Article 18 of the Limitation Act, the counsel
submitted that for the price of the work done by the plaintiff when no time
is fixed under the contract for the payment, the cause of action in favour
CS(OS) No. 745/2004 Page 4 of 18
of the plaintiff would arise from the date when the work is done. The
contention of the counsel for the defendant was that if the date of
completion of work is taken to be December 1999, then three years
period came to an end on 14.12.02 and therefore the present suit filed by
the plaintiff in May, 2004 would be clearly barred by Article 18 of the
Limitation Act. Counsel further submitted that at best the period of
limitation can be reckoned from the date when the final certificate by the
Architect was issued in favour of the plaintiff and as per own case of the
plaintiff the said date is 23.6.2000 and even if three years period under
the residuary Article 113 is calculated from the date of certification i.e.
23.06.2000 then also the three years period would come to an end on
24.06.03. Counsel thus submitted that in both the circumstances, the
present suit filed by plaintiff is barred by limitation. In support of his
arguments, counsel for the defendant placed reliance on the judgment of
the Punjab & Haryana High Court reported in Jullundur Improvement
Trust Jullundur vs Kuldip Singh (AIR 1984 P &H 185).
6. Opposing the present application, Mr. Akhil Sibal, learned
counsel for the plaintiff submitted that the question of limitation is a mixed
question of law and fact and the same cannot be decided without giving an
opportunity to both the parties to lead evidence. Counsel further submitted
that the period of limitation would be reckoned from the date of the
refusal which in the present case was communicated by the defendants
vide their letter dated 25.9.2001, and therefore the suit filed by the plaintiff
CS(OS) No. 745/2004 Page 5 of 18
in May 2004 would be clearly within the three years period of limitation
under Article 113 of the Limitation Act. Counsel for the plaintiff also
submitted that Article 18 of the Limitation Act would not apply to the facts
of the present case as the rights of the parties are governed by the
contract dated 16.07.98 & 01.08.98 for new & old buildings respectively
duly executed between the parties wherein in terms of clause 6 the final
payments were agreed to be paid after due vetting of the same by the
Architect and the Quantity Surveyor concerned. Placing reliance on clause
6 of the General Conditions of the contract, counsel submitted that the said
clause provides mechanism for the final payments by the defendant to the
plaintiff and in terms of the said clause, after completion of the work by
the plaintiff the joint measurement of the actual work done by the
contractors was required to be recorded in presence of the contractor
and Architect or their representatives and the same was to be forwarded
to the Engineer for verification. Counsel further submitted that after
verification the contractor was required to prepare the bills based on the
quantities obtained there and then the bill ultimately was to be
recommended to the employer for payment after due vetting by the
Architect and the quantity surveyor concerned. Counsel thus submitted
that the said clause in the contract will take out the present case from
the sweep of Article 18 of the Limitation Act as under the clause the
period of limitation would commence from the date when the final bills
vetted by the Architect were submitted to the defendant and on the
CS(OS) No. 745/2004 Page 6 of 18
refusal of the defendant to make the said payment and not prior thereto.
Counsel thus submitted that in the facts of the present case, the Architect
has certified the final bill on 23.6.2000, and thereafter the reminders were
sent by the plaintiff on 26.09.2001 and 01.10.2001 and there was a refusal
on the part of the defendant through his General Manager on 25.9.2001
and therefore the suit filed by the plaintiff in May, 2004 is clearly within
the period of limitation. Counsel thus submitted that the case of the
plaintiff would be covered under Article 113 of the Limitation Act and not
under Article 18 of the Limitation Act.
8. I have heard learned counsel for the parties at considerable
length and given my thoughtful consideration to the arguments advanced
by them.
9. It is a settled legal position that to determine whether any suit is
barred by limitation or not the allegations leveled in the plaint are to be
looked into and not the defence set up by the other party in the written
statement. Before dwelling on the controversy in hand, it would be
pertinent to reproduce relevant para 26 of the plaint relating to the cause
of action as under:-
"Cause of action arose on 16.7.98 when the contract was given to the
plaintiff for the interior works of the New building of the Defendant and
on 1.8.98 when the contract was given to the plaintiff for the interior
works of the Old building of the Defendant. The cause of action also
arose when the letter of award was issued to the Plaintiff for the two
buildings i.e. 16.7.98 and 1.8.1998 respectively. The cause of action
also arose when the final bills were raised by the Plaintiff on 29 th Nov.,
1999 for the total work done for the new building and for the old
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building. The cause of action also arose on 23.6.2000, when the
Architect of the Defendant issued a certificate for final bill for
Rs.2,41,34,961.82. The cause of action also arose when the Plaintiff
sent repeated reminders through letters dated 26.9.2001 and
1.10.2001 to pay the outstanding payment. The cause of action finally
arose on 25.9.2001 when General Manager Shri Bajpai refused to pay
the Plaintiff's due. It again accrued on various dates when
communication and personal visits were made to recover the
outstanding payment from the Defendant; cause of action is recurring
in nature, as the Defendant till date has not paid the suit amount."
Going by the aforesaid averments made in the plaint, the final bills were
raised by the plaintiff for the total work done by the plaintiff for the new
and old buildings on 11.11.1999 and 29.11.1999 respectively. The said final
bills as submitted by the plaintiff were surveyed by the Architect and
submitted on 23.6.2000 by him although for a little lesser amount.
Thereafter the plaintiff sent reminders on 26.9.2001 and 1.10.2001 but
with no response from the side of the defendant. The final cause of action
as per the said para of the plaint arose in favour of the plaintiff on
25.9.2001 when the General Manager of the defendant refused to pay the
plaintiff's dues. Here it would also be important to reproduce clause 6 of
the agreement which deals with the agreed procedure of submission,
verification and final certification of final bills of the Architect and same is
reproduced as under:
Clause 6
COMPLETION CERTIFICATE AND FINAL PAYMENTS
After completion of the works under various items the joint
measurements of the actual work done by the contractors will be
recorded in presence of the Contractor and Architect or their
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representatives and the same will be forwarded to the Engineer for
verification. After verification, the Contractor will prepare his bill
based on the quantities obtained therein. The bill submitted by the
contractor will be recommended to the Employer for payment after
due vetting of the Architect and the Quantity Surveyor concerned.
In the event, even after receipt of notice in writing, if the Contractor
or his representative is not attending the joint measurements, the
Architect or his representative is not attending the joint
measurements, the Architect or his representative or Engineer will
arrange to record the unilateral measurements and the same will be
treated as final and binding on Contractor.
It is further provided that no final or other certificate of payments or
of completion, acceptance or settlement of the account in any
circumstances shall relieve the Contractor from his liability for fraud
or willful unauthorized deviation from the drawing, specifications,
schedule of rates and quantities, instructions, and directions from
time being binding upon him.
10. Now as per the case of the defendant, Article 18 of the Limitation Act
would be applicable to the facts of the case at hand whereas as per the
plaintiff the present case is covered by Article 113 and none other. Before
dealing with the rival contentions of the parties on the said issue, it would
be pertinent to reproduce the relevant provisions of the Limitation Act as
under:-
PART II - Suits relating to Contracts
SL. DESCRIPTION OF SUIT PERIOD OF TIME FROM WHICH PERIOD
NO. LIMITATION BEGINS TO RUN
18. For the price of work done by the Three years When the work is done.
plaintiff for the defendant at his
request, where no time has been
fixed for payment.
CS(OS) No. 745/2004 Page 9 of 18
PART X - Suits for which there is no prescribed period
113. Any suit for which no period of Three years When the right to sue accrues.
limitation is provided elsewhere
in this Schedule.
Dealing with the first argument of the counsel for the defendant that as per
Article 18 of the Limitation Act the present suit is barred as the completion
of work was done in December 1999 and the present suit was filed in May,
2004. The conditions for the applicability of Article 18 are that firstly, the
suit should be for the price of the work done by the plaintiff for the
defendant, secondly the work should have been done at the request of the
defendant and thirdly, that no time should have been fixed for payment of
the price of that work. Now applying these three requirements to the facts
of the case at hand, the first is that the suit is for the price of the work
done. Admittedly there is no dispute with the said fact that the present suit
has been filed for recovering the price for the work done by the plaintiff for
the defendant. With regard to satisfaction of the second requirement, that
the work should be done by the plaintiff at the request of the defendant, it is
manifest that the defendant had invited tenders for the renovation of its two
buildings in reply to which the plaintiff had submitted its offer which was
accepted by the defendant. The Hon'ble Division Bench of the Punjab &
Haryana High Court in State of Punjab vs. Sham Lal Gupta (1971)73
Punj.L.R.166 held that the floating of tenders by the defendant is a request
for work to be done and the acceptance of the plaintiff's offer in reply to the
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said tender would be fulfilling the second condition for application of this
article. The relevant para of the said judgment is reproduced as under:
"12. Now coming to the second requirement, the question is, at whose request
the work was done by the Plaintiff for the Defendant ? Was it done at the request
of the Plaintiff or the Defendant ? It is undisputed that it was the Government,
who wanted the work regarding the canalisation of the approach to the bridge to
be done and it is, therefore, that it invited tenders for the same. In response to
this invitation, the Plaintiff also submitted his tender, which was ultimately
accepted. The fact, however, remains that it was the Government, which wanted
its work to be done by the contractor. In other words, it was at the desire or
request of the Government that the contractor undertook to do the work. Simply
because the Plaintiff had filed his tender at the invitation of the Government, it
could not be said that the work, which was admittedly of the Government, was
being done by him at his own request. His putting in the tender was merely an
offer on his behalf that he would do that particular work at the price quoted by
him and if that amount was the lowest and had been accepted by the
Government that did not mean that it was his. work that was being done by him,
or that it was at his request that he had done that work. By the acceptance of the
Plaintiff's tender by the Government, the work did not cease to be that of the
Government. The acceptance of the tender only amounted to the fixing of the
price of that work. The work had to be entrusted by the Government to the
contractor and it was according to the wishes of the former that he had to do it.
Take for instance a homely example. If a person wants a house to be constructed
for him by the contractor and he invites tenders for the same, if he accepts the
tender of a particular contractor and entrusts the work to him, it cannot be said
that the house was being constructed at the request of the contractor. It would
be at the instance of the owner that the contractor would be constructing the
house. 13. Learned Counsel for the Plaintiff-Respondent had relied on Rama
Bhushan Basu's case (4), in support of his contention that in such circumstances, it would be at the request of the Plaintiff contractor that the work was being done by him for the Government. On this point, the learned Judges of the Patna High Court observed thus--
It is doubtful if in the present case it can be said that the work done by the Plaintiff was at the request of the Defendant. There was first a general invitation for tenders for the work. The tender was to be of the rates for specified items of work. The Plaintiff like other contractors submitted his tender which was finally accepted by the Defendant. Acceptance of the Plaintiff's tender is the acceptance of an offer made by the Plaintiff, in other words, the Plaintiff requested that he may be entrusted with the work at specified rates and his request was accepted and he was allowed to execute the work. In that view it was not at the Defendant's request that the Plaintiff did the work but it was as the other way about.
CS(OS) No. 745/2004 Page 11 of 18 It would be seen from the above quoted passage, that the learned Judges were themselves doubtful if it could be said that the work done by the Plaintiff in that case was at the request of the Defendant. Secondly, we cannot lose sight of the fact that it was the Government in the first instance, which invited tenders for the construction of their work. On that invitation, various contractors submitted their tenders. It was not as if the contractor on his own put in his tender. If the Plaintiffs tender was accepted, that only meant that the rate offered by the contractor was accepted by the Government. The tender was submitted at the desire of the Government and it was the Government, which wanted that work to be done by the contractor, whose tender had been accepted. There is no doubt that the work was of the Government and it was done for it by the contractor. The words "at his request" will govern the expression "work done by the Plaintiff for the Defendant" and not the price thereof. If the work was of the Government, as undoubtedly it was, and if it was done by Plaintiff for the Government, as actually he did, then, there is no escape from the conclusion that the Plaintiff did that work obviously at the instance of the Government. By accepting the tender of the Plaintiff, the Government had merely agreed to pay the price demanded by the contractor for the work which was to be done by him for the Government at the latter's desire. In view of what I have said above, I am, I say so with respect, unable to agree with the above observation of the learned Judges." Hence it would be evident from above that the acceptance of the offer or the quotation of the plaintiff in response to the tender floated by the defendant is requesting the plaintiff to do the work done and hence the present case meets the second condition for the applicability of the said article as well. Now coming to the third condition essential for the applicability of the said article which is that there should be no time fixed for payment. Clause 6 of the agreement in the present case is the governing clause. The said clause provides that the contractor will take measurements of the work done and submit his bill for verification to the engineer and then the bill submitted by the contractor will be recommended to the defendant for payment after the same has been vetted by the Architect and the Quantity Surveyor. The said clause clearly indicates that the payment CS(OS) No. 745/2004 Page 12 of 18 was be made after the final bill was submitted by the Architect to the defendant and not when the work was completed or when the bill was submitted by the plaintiff. Admittedly no time limit had been fixed for the architect to submit and certify the final bill but without his recommendation the payment was not to be made to the plaintiff. Therefore this court is of the considered view that this clause stipulates the time for payment and hence does not fulfil the third requirement for the applicability of Artilce 18. Thus the argument of the counsel for the defendant that the period of limitation of three years should be reckoned from the date when the work was completed by the plaintiff does not sustain. The judgment of Punjab & Haryana High Court cited by the counsel for defendant in Jullundur Improvement Trust (Supra) enunciates the above legal position but is not applicable to the facts of the case at hand.
11. The second argument of the counsel for the defendant was that the limitation of three years period, even if it is reckoned from the date of final certification of the bill, then also the present suit filed by the plaintiff would be barred under Article 113 of the Limitation Act. Article 113 of the limitation act stipulates that the period of limitation would begin from the time when the right to sue accrues. Now when does the right to sue accrue depends on the facts and circumstances of each case and in the present case whether it accrued from 23.6.2000 when the final bill was submitted by the Architect to the defendant or when the first time the defendant refused to pay the claim of the plaintiff i.e 25.9.2001. As per the CS(OS) No. 745/2004 Page 13 of 18 own case of the plaintiff they submitted the final bills for the new building on 11.11.99 and for the old building on 29.11.99. It is not the case of the plaintiff that the bills submitted by the plaintiff were totally rejected by the Architect but amount of both the said bills was reduced while carrying out certain deductions in the amounts. The final bill for the new building was reduced to Rs. 2,41,34,961.82/- while the bill of the old building was reduced to Rs. 89,98,400.51/-. It is also the case of the plaintiff that the amount of Rs. 29,39,586.59/- remained outstanding so far the final bill of new building was concerned and a sum of Rs. 8,76, 683.51/- against the final bill of the old building after adjustment which figures would clearly show that the plaintiff had raised the bill of a substantial amount against the defendant which remained unpaid.
15. Hence, in nutshell dispute between the parties arose on account of the fact that the plaintiff was standing by the amount of the final bills as were raised by the plaintiff and the defendant was going by the amounts of the bills as were certified by the Architect in terms of clause 6 of agreement. Therefore there arose a conflict between the parties regarding the final amount to be paid by the defendant to the plaintiff due to the fact that the Architect had submitted the final bill of a different amount than what was claimed by the plaintiff. The plaintiff thereafter wrote various letters to the defendant for payment of the amount in accordance with the bill submitted by the plaintiff and as per the plaintiff the right to sue accrued on 25.9.2001 when the defendant finally turned CS(OS) No. 745/2004 Page 14 of 18 down the request of the plaintiff. It is a settled legal position that the accrual of cause of action cannot be postponed by writing reminders or sending reminders. (Major(retd.)Inder Singh Rekhi vs. Delhi Development Authority(1988)2SCC338). Hence the plaintiff in the present case could not keep the claim alive by writing letters and reminders to the defendant thus postponing the accrual of the right to sue by more than a year i.e from 23.6.2000 to 25.9.2001 while the claim had become time barred on 23.6.2003. If the contention raised by the counsel for the plaintiff is accepted that refusal itself would govern the period of limitation then by that analogy if such a refusal is not done for a considerable period of time say for 4-5 years, then the same would not extend the period of limitation. Once the plaintiff's right to legitimately claim the amount of the final bills accrued after they were certified in terms of clause 6 of the agreement by the Architect, then from that date itself the period of limitation would start. At best the reasonable period of demand notice, if any, can be added in the said period and not beyond this period. However, the demand notice cannot be given after a period of one year but within a reasonable time frame only.
16. The doctrine of limitation and prescription is based on two broad considerations; first, that there is presumption that the right not exercised for a long time is non existent and second that the right of the parties should not be in a state of constant uncertainty, doubt or suspense. In Halsbury's Laws of England the policy of limitation has been described as follows:
CS(OS) No. 745/2004 Page 15 of 18
"The courts have expressed at least three different reasons supporting the existence of statutes of limitation, namely, (i) that long dormant claims have more of cruelty than justice in them,
(ii) that a defendant might have lost the evidence to dispute the stated claim, (iii) that persons with good causes of actions should pursue them with reasonable diligence".
Here it would be apt to refer to the judgment of the Apex Court in Bala Krishnamurthi Vs. M. Krishnamurthi, 1998(7)SCC123, wherein the Hon'ble Supreme Court while enunciating the object of fixing time limit for litigation held as under:
"11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life- span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
18. Hence, the object of limitation act is that there must be a quietus to the litigation between parties for resolving disputes within a narrowed down time frame. It is also of value that the parties preferring claims after a long time would do more injustice than justice as the evidence which is required to prove the case would be lost due to the passage of time. The oft echoed maxim that law is with the vigilant is the grundnorm CS(OS) No. 745/2004 Page 16 of 18 of the justice dispensation system. It is ingeminated that a litigant has to be not only vigilant for his right but he has to be vigilant to see that he takes legal recourse within the period of limitation and any laxity, pretermission or negligence in not taking steps to take legal recourse within the prescribed period of limitation would certainly be advantageous to the party in default.
19. The last facet of the argument of the counsel for the defendant was that the question of limitation is a mixed question of law and fact and cannot be decided without adducing evidence of the parties. There is no dispute with the abovesaid legal position that the plaint cannot be rejected under clause (d) of order 7 rule 11 if there is dispute regarding facts of the case and evidence needs to be recorded to decide the issue of limitation. The question of limitation in the case at hand however is a pure question of law and not a mixed question of law and fact as it is an admitted position that the only dispute between the parties is with regard to the relevant article of the limitation act applicable to the case at hand and from what date the limitation period would begin. There is absolutely no dispute with regard to the dates or the sequence of events that took place or denial of any letters sent by the plaintiff or received by the defendant. Thus on the perusal of the averments made in the plaint the question whether the institution of the suit is barred by limitation or not can be decided in the present case and there arises no necessity of adducing evidence. The argument of the defendant is thus devoid of any merit.
CS(OS) No. 745/2004 Page 17 of 18
20. Adverting to the facts of the case, the plaintiff has filed the present suit in May 2004 while the legal right of the plaintiff to file the present claim clearly accrued on 23.06.2000 and not on 26/29.09.2001, the period of limitation of three years under Article 113 of the Act thus came to an end on 24.06.2003 and therefore, going by the same, the present suit filed by the plaintiff is clearly barred by Article 113 of the Limitation Act.
21. The present application is filed under order 7 rule 11(d) and it is no more res integra that the "law" within the meaning of clause(d) includes the law of limitation as well. Thus the present plaint is rejected being barred by limitation as per clause (d) of order 7 rule 11. It is ordered accordingly.
June 01, 2012 KAILASH GAMBHIR, J
CS(OS) No. 745/2004 Page 18 of 18