Delhi District Court
M/S Krishna Surgical Specialities Pvt. ... vs . M/S Arora Medical Hall on 3 April, 2023
CS SCJ 869/20
M/S KRISHNA SURGICAL SPECIALITIES PVT. LTD. Vs. M/S ARORA MEDICAL HALL
IN THE COURT OF MS. NEHA SHARMA, CIVIL JUDGE-01
(SOUTH) SAKET COURT, NEW DELHI
Civil Suit No :- 869/20
CNR No :- DLST03-001153-2020
M/S KRISHNA SURGICAL SPECIALITIES PVT. LTD.
(Through its Authorized Representative, Sh. Pranay Jhamb)
S-6, GF, Green Park Extn., Market
New Delhi-110016 ............PLAINTIFF
VERSUS
M/S ARORA MEDICAL HALL
(Through its proprietor)
L-134, Krishna Park Extn.,
Vikaspuri,
New Delhi-110018 ............DEFENDANT
SUIT FOR RECOVERY OF RS. 42,264/- ALONG WITH
INTEREST @ 18% PER ANNUM
ORDER
1. Vide this order, the application under Order VII Rule 11 CPC for rejection of plaint filed by the defendant shall be disposed of.
Page no. 1 of 7 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 869/20 M/S KRISHNA SURGICAL SPECIALITIES PVT. LTD. Vs. M/S ARORA MEDICAL HALL
2. Succinctly, it is the case of the plaintiff that plaintiff company is a private limited company registered under Companies Act, 1956. Defendant is a proprietorship firm and running a medical store. Defendant approached the plaintiff company for providing the surgical products for their requirement from time to time against which several invoices were raised for total sum of Rs. 41,264/-. Several requests were made to the defendant but defendant straight away refused to make any payment. Consequently, a legal notice dated 20.08.2019 was sent to the defendant however, defendant neither replied nor paid the amount. Having left with no other option, the present suit was filed seeking recovery alongwith interest.
3. On the contrary, the case of defendant is that there is no active commercial relationship between the parties and last transaction was made in the year 2011. It is stated that defendant has not acknowledged or accepted the said debt which is time barred and not good in the eyes of law. It is further stated that claim of plaintiff is more than 10 years old and plaintiff has nowhere explained the cause of delay which could be justified in admitting the present plaint. It is further stated that on 01.02.2015, fire broke out in the house of the defendant due to which all the past records and documents of the defendant were destroyed. All the other averments of the plaint have been denied and it is prayed that the Page no. 2 of 7 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 869/20 M/S KRISHNA SURGICAL SPECIALITIES PVT. LTD. Vs. M/S ARORA MEDICAL HALL present suit is liable to be dismissed.
4. Vide present application, defendant seeks rejection of plaint under Order VII Rule 11(d) CPC as plaint appears to be barred by law. It is stated that there has been an inordinate delay of more than 10 years in filing the present suit and the suit is barred by limitation. In support of this contention, Ld. counsel for defendant has relied upon the judgment of Hon'ble Karnataka High Court in M/s BSCPL Infrastructure Ltd. Vs Govt. of Karnataka R.F.A. No. 982/2016.
5. No reply to the application was filed by the plaintiff.
6. Arguments heard. Record perused. Considered.
7. The law with regard to Order VII Rule 11 CPC is well settled. While dealing with an application for rejection of plaint under Order VII Rule 11 CPC, the court has to consider only the averments made in the plaint and not the defence of the defendant or the contents of the application under Order VII Rule 11 CPC. In C. Natrajan v. Ashim Bai reported at (2007) 14 SCC 183, the Apex Court has observed:
"8. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the Page no. 3 of 7 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 869/20 M/S KRISHNA SURGICAL SPECIALITIES PVT. LTD. Vs. M/S ARORA MEDICAL HALL plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence."
8. Further in Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 it was held with reference to Order 7 Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The court observed that:
"The trial court can exercise the power at any stage of the suit even before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage."
9. It is trite that for an order under Order 7 Rule 11, CPC it is the plaint and the plaint alone which is to be considered and if the plaint made out a case indicating a cause of action, then the falsity of the claim would be a matter to be determined at the trial and if at all the suit was found to be vexatious or based on false assertion, the plaintiff would be liable for compensatory costs under S. 35-A, CPC.
10. Coming to the facts of the instant case, the suit has been filed by the plaintiff for recovery of Rs. 42,264/- based upon several invoices dated 29.03.2005, 27.07.2005, 21.11.2005, 26.12.2005, Page no. 4 of 7 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 869/20 M/S KRISHNA SURGICAL SPECIALITIES PVT. LTD. Vs. M/S ARORA MEDICAL HALL 11.01.2006, 20.01.2006, 30.01.2006, 11.02.2006, 08.04.2006, 18.07.2006, 25.07.2006, 02.09.2006, 15.09.2006, 07.10.2006, 28.10.2006, 10.11.2006, 14.04.2007, 12.06.2007, 27.11.2007, 16.09.2008, 10.11.2009, 26.06.2010, 01.09.2010 and the last invoice is dated 02.12.2010. It is stated in the plaint that the cause of action arose from 29.03.2005-02.12.2020 for a sum of Rs. 42,264/- when defendant received the surgical products from the plaintiff company vide several invoices raised from time to time and since the day of delivery of product, the payment stands outstanding in the account of the defendant. The cause of action further arose when legal notice dated 20.08.2019 was sent to the defendant to clear the outstanding amount of Rs. 42,264/- with interest @ 18% p.a. along with professional charges of the legal notice but defendant did not clear the outstanding within 15 days legal notice period along with interest @ 18% per annum from the date of bill till the date of realization.
11. Thus, the question that arises for consideration is whether perusal of plaint and documents show that plaint is barred by limitation under Order VII Rule 11 (d) CPC.
12. Now, the date of last invoice is 02.12.2010 but the cause of action to file the present suit is stated to be issuance of legal notice on 20.08.2019 which was sent to defendant to clear outstanding dues. The relevant provision under Section 15 Page no. 5 of 7 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 869/20 M/S KRISHNA SURGICAL SPECIALITIES PVT. LTD. Vs. M/S ARORA MEDICAL HALL Limitation Act is reproduced herein;
"15. Exclusion of time during which proceedings are suspended-
(1) ...
(2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded."
13. In the judgment of Disha Constructions & others Vs. state of Goa & another (2012)1 SCC 690, the Hon'ble Supreme Court has held;
"16. In our view, proper interpretation of Section 15(2) of the Act would be that in computing the period of limitation, the period of notice, provided notice is given within the limitation period, would be mandatorily excluded. That would mean a suit, for which period of limitation is three years, would be within limitation even if it is filed within two months after three years, provided notice has been given within the limitation period. In such a case, the period of notice cannot be counted concurrently with the period of limitation. If it is done, then period of notice is not excluded. Any other interpretation would be contrary to the express mandate of Section 15(2) of the Act.
14. The Hon'ble Karnataka High Court also referred to this judgment in M/s BSCPL Infrastructure Ltd. (supra). Thus, for the benefit of exclusion of period of legal notice, it is required that notice has been given within the limitation period. In the present suit, the limitation period to claim recovery was three years from the Page no. 6 of 7 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi CS SCJ 869/20 M/S KRISHNA SURGICAL SPECIALITIES PVT. LTD. Vs. M/S ARORA MEDICAL HALL date of the last invoice i.e. 02.12.2010. The legal notice is only dated 20.08.2019 which was issued after the period of limitation ended. Thus, fresh cause of action cannot be said to have arisen on 20.08.2019 when the legal notice was issued as it would be in contravention with the provision under Section 15. Besides, the plaintiff has also failed to appear despite various opportunities to satisfy this court on the aspect of limitation. Thus, in view of the forgoing reasons, the facts stated therein warrant rejection of plaint in view of the settled law with respect to provision of Order VII Rule 11 (d) CPC. Accordingly, the application of the defendant is allowed and plaint stands rejected being barred by limitation. Let decree sheet be prepared.
Pronounced in open court:
Dated: 03.04.2023 (Neha Sharma) CJ-01(South)Saket/ND/03.04.2023 Note:- This order contains seven pages and all the pages have been checked and signed by me.
(Neha Sharma) CJ-01(South)Saket/ND/03.04.2023 Page no. 7 of 7 (Neha Sharma) CJ-01/(South) Saket Court/New Delhi