Calcutta High Court (Appellete Side)
CO-4392-2005 on 27 June, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
1 27.06.2016
item no. 8 aks C.O. 4392 of 2005 Re : Anirudh Tikmany ... Petitioner.
Ms. Hasnahanu Chakraborty Mr. Vinay Kumar Purohit .. for the petitioner..
Mr. D. K. Dey .. for the State Bank Of India.
This is an application under Article 227 of the Constitution of India wherein the present petitioner has challenged the order no. 19 dated 13th September, 2005 passed by the learned Judge, 5th Bench, City Civil Court at Calcutta in Money Suit No. 738 of 2002 wherein learned trial court was pleased to reject the application filed by the present petitioner under Order 7 rule 11 of the Code of Civil Procedure.
It is the submission of the learned Advocate, Ms. Chakraorty, appearing on behalf of the petitioner that the suit as framed is perfectly barred by limitation. She submits by taking me to the plaint, at running page no. 16, that the alleged theft took place on 30th April, 1997. One circular was issued by the Zonal Office, Patna regarding the theft to all the branches notifying the draft numbers. The draft in question was encashed on October 21, 1998 by the defendant no.1. She further submitted that the present plaintiff prays for an order so that the period of limitation can start from the date of knowledge which the bank authority attributed to December 30, 1999. Thus, it is the submission of Mrs. Chakraborty that the impugned order passed by the learned trial court being against the principle of Limitation Act is fit to be set aside.
In counter to all these, Mr. De, learned Advocate, appearing on behalf of the opposite party/State Bank of India submits that at the time of audit, it came to light that the present draft was encashed by the defendant no. 1 and the said audit report was submitted on December 30, 1990 and that is the date of knowledge. He frankly submits that in those days, computer was not prevalent to keep the datas and things used to be done manually and as such, knowledge cannot be derived on and from the date of encashment of the draft on 21st October, 1998.
I have gone through the impugned order wherein the learned trial court said that the point of limitation cannot be decided at this stage without taking into evidence of both sides. In deciding one application under Order 7 rule 11 of the Code of Civil Procedure, this court is to restrict itself to the plaint and cannot go through other documents. This court is at one with the 2 learned trial court that the point of limitation may be taken into consideration by the court at a later stage, i.e. at the time of evidence.
Thus, reading and rereading the impugned order, this court is satisfied that there is no infirmity in the impugned order and as such, there is no reason to interfere with the same.
The application under Article 227 of the Constitution of India is answered in the negative and the same is dismissed.
There will, however, be no order as to costs.
Interim order of stay is vacated.
Learned trial court will consider regarding the acceptance of the written statement to be filed by the present petitioner.
Office is directed to communicate this order to the learned trial court. Parties are also at liberty to communicate this order to the learned trial court so that the matter may be decided as early as possible.
Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.
(Indrajit Chatterjee, J.)