Delhi High Court
Snowhite Apparels Ltd. vs K.S.A. Technopak (I) Ltd. on 26 April, 2005
Equivalent citations: IV(2005)BC134, 121(2005)DLT351, 2005(83)DRJ580
Author: Anil Kumar
Bench: Anil Kumar
JUDGMENT
1. Appellant is the defendant in a suit for recovery of Rs. 6 lacs or so filed by first respondent. It had filed an application for rejection of the plaint under Order 7 Rule 11 CPC claiming that this suit was barred by time which has been dismissed by impugned order dated 13.05.2004. Appellant assails the order and asserts that suit was time barred and the plaint warranted outright rejection for this in any case.
2. The suit filed by first respondent is based on the work done by this respondent under the agreement dated 26.08.1993 executed between the parties. In this it is claimed that first respondent (plaintiff) had raised a bill for Rs. 5.5 lacs vide invoice dated 28.08.1995 and had also raised one more invoice for Rs. 1.5 lacs and rupees one lacs but Appellant (defendant) had failed to pay this amount. Thereafter, two legal notices were served on the Appellant which were replied on 18.09.1997 and 12.01.1998 denying the liability giving rise to the cause of action to file the suit.
3. Appellant filed I.A. No. 8432/2002 under Order 7 Rule 11 and sought rejection of the plaint on the ground that the suit was time barred because the plaintiff (first respondent) on its own showing had raised the last bill on 26.11.1995 and had filed the suit on 17.08.2000 which was barred by time on the face of it as it could have been filed within three years from the date when the work was done under Article 18 of the Limitation Act which time had expired on 25.11.1998.
4. This application was contested by first respondent (plaintiff) claiming that the suit was filed within the period of limitation and the period of limitation had to reckon from the date of refusal of demand notice, i.e., 12.01.1998. Learned Single Judge relying on two judgments of Rajasthan and Andhra Pradesh High Courts in Mohan Lal Sukhadia University, Udaipur v. Priya Soloman and Khala Quthabullah v. Government of Andhra Pradesh and Ors. rejected Appellant's application holding: -
"In the case in had the averments contained in the plaint as also the documents filed along with the plaint do so that the parties were in touch on the question of payment of the suit amount pertaining to the three invoices for the service rendered by the plaintiff to the defendant even after the last voucher was issued by the plaintiff. Certain discussions and meetings followed between the representatives of the plaintiff and defendant. Whether these averments are correct or the plaintiff would be able to prove the same or not will be seen only and answered after trial.
In view of this position, this court is of the opinion that it will not be appropriate to reject the plaint under the Provisions of Order 7 Rule 11 CPC. The defendant's application is dismissed. However, any observations made herein will not tantamount expression of opinion on merits on the question of limitation. The issue of limitation can more appropriately be considered and answered at the appropriate stage of the trial."
5. Appellant attacks the impugned order on the ground that learned Trial Judge had failed to appreciate that the basis of the plaintiff's plaint were the invoices of which the last was raised on 26.11.1995 - the date from which the limitation period of three years was to be reckoned and as the suit was filed on 17.08.2000, the limitation period had expired on 25.11.1998. The learned Judge had also fallen in error by taking note of the subsequent correspondence between the parties which could not have extended the limitation to file the suit which could be only extended by an acknowledgment of liability made in writing and signed by the party.
6. Learned counsel for the appellant Mr. Chadha contended that the cause of action arose to respondent from the date the last bill was raised and not from the date Appellant replied to respondents notice denying its liability. The suit was governed by Article 18 of Limitation Act which provided a limitation period of three years from the date of work done for a claim to be lodged. He cited judgments in , Reet Mohinder Singh Sekho v. Mohinder Prakash and Ors.; 1987 (Suplimentary) Supreme Court Cases 663, Sameer Singh v. Kedar Nath; FAO(OS) 293/2001; S.N. Rekhi and Anr v. Pamela Manmohan decided on 24.09.2001; , Jugolinija Rajia Jugoslaviga and Anr. v. Feb Leathers Limited and Ors., 2003(1) Supreme Court Cases 577, Saleem Bhai and Ors v. State of Maharashtra and Ors.; , Mrs. Lakshmi Cotton Mills v. The Aluminum Corporation of India AIR 1940 Rangoon 207, Official Trustee v. Mrs. Rae Burn and Ors. AIR (29)1942 Patna 335; .
The relevant provision of Order 7 Rule 11 of Code of Civil Procedure provides:-
"R.11. Rejection of plaint.
The plaint shall be rejected in the following cases:
(d) where the suit appears from the statement in the plaint to be barred by any law."
7. A perusal of the Clause (d) shows that the plaint would be liable to be rejected if the statement made in the plaint shows that it was barred by any law. Therefore, the relevant facts that are required to be looked into for this purpose are those contained in the averments made in the plaint. If these averments on their reading would admittedly establish that the suit was barred by any law which would include the Limitation Act also, the plaint would have to be rejected. It would all, therefore, depend on the averments in the plaint in so far as the invocation of Clause (d) of Rule 11 is concerned.
8. In the present case, the plaint alleges that the plaintiff vide invoice dated 28.08.1995 raised a bill of Rs. 5.5 lacs and received Rs. 2 lacs against this. Then, two more invoices were raised dated 03.11.1995 and 29.11.1995 for Rs. 1.5 lacs and rupees one lacs respectively which were not paid. Thereafter, correspondence ensued asking Appellant to pay the due amount. Two legal notices were issued to the Appellant and in reply whereto dated 22nd & 28th September, 1997, Appellant disputed its liability.
9. Could it be gathered from these averments that the suit was barred by time on the face of it which would result in the rejection of plaint.
10. The parties have contested this issue with Appellant applying Article 18 of the Limitation Act and claiming that limitation was to be reckoned from the date of last invoice raised which would expire on 25.11.1998 and the plaintiff (Respondent) disputing this and asserting that the cause of action arose to him on 28th September, 1997 when Appellant disputed its liability for the first time and if limitation period was to run from this date, the suit would be within the period of limitation.
11. These conflicting claims in the very nature of things are proof enough of the fact that the suit can't be held to be time barred on the basis of averments made in the plaint and the plea of limitation would require determination on examination of the rival stands of the parties. In such a situation where the plea of limitation would require to be examined and decided on the pleadings/evidence of the parties, the plaint would not be liable to be rejected.
12. The rejection of the plaint is a serious matter. It non-suits the plaintiff and kills the cause and claim for good. It can't, therefore, be ordered cursorily and without satisfying the requirements of provisions of Order 7 Rule 11 and in this case Clause (d) which mandates that the suit should be shown to be barred by law on the basis of averments made in the plaint.
13. The judgments relied upon by learned counsel for Appellant are wide off the mark and do not help his case any way. The judgment of Reet Mohinder Singh Sekho (supra) deals with the `acknowledgment' and whether it gives a fresh period of limitation under Section 18 of the Limitation Act. In the case of Samar Singh (supra) the Court was dealing with the issue whether an election petition could also be rejected under Order 7 Rule 11 of Code of Civil Procedure. In S.N. Rekhi's case (supra), a Division Bench of this Court held that a Court could reject a plaint under Order 7 Rule 11 of Code of Civil Procedure, if the facts as stated in the plaint are taken to be proved and if such facts disentitled the plaintiff to the relief sought - a proposition on which there can't be two opinions.
14. In view of all this, we find nothing wrong with the order of learned Trial Judge. The order is affirmed and this appeal dismissed.