1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicant-original defendant to quash and set aside the impugned judgment and decree passed by the learned 2nd Additional Senior Civil Judge, Valsad, Vapi dated 30/04/2012 below Exh. 14 in Summary Suit No. 13/2011 by which the learned trial Court has dismissed the said application submitted by the applicant-original defendant, which was submitted to reject the plaint in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure i.e. on the ground that the suit is barred by the law of limitation.
2. The respondent-original plaintiff instituted Summary Suit No. 13/2011 for recovery of Rs. 1,70,000/- submitting that under the letter of Intent dated 20/08/2005 the respondent- original plaintiff was awarded a contract for certain services and liaison for procuring certain governmental permissions and the respondent-original plaintiff performed his duty under the contract and obtained various permissions. However, despite the same, payment was not made and even final bill was submitted to the tune of INR 125 lacs dated 09/02/2006. It was the case on behalf of the respondent-original plaintiff that since the payment was not released for considerably long time, the respondent-original plaintiff wrote letter dated 24/07/2006 requesting for release of the payment. It is the case on behalf of the respondent-original plaintiff that thereafter time and again by various communications the applicant-original defendant was called upon to make the payment, which the applicant-original defendant did not make and finally vide legal notice dated 25/08/2008 the applicant-original defendant was called upon to make the payment due and payable under the Invoice dated 09/02/2006. The said notice was replied by the applicant-original defendant vide reply dated 19/10/2008 for the first time denying the claim made by the respondent- original plaintiff. It is the case on behalf of the respondent-
original plaintiff that not only that but the applicant-original defendant filed caveat in the Court of Civil Judge at Umargaon, being Caveat No. 17/2008 on 20/10/2008. The respondent- original plaintiff had initially filed winding up petition under Sections 433 and 434 of the Companies Act, 1956 against the applicant-original defendant for recovery of the aforesaid amount. However, the same came to be withdrawn by the respondent-original plaintiff with a view to avail proper remedy including the remedy of filing the suit and, thereafter, after withdrawing the Company Petition, the respondent-original plaintiff instituted the aforesaid suit for recovery of Rs. 1,70,000/-.
3. Having served with the notice/summons of the aforesaid suit, the applicant-original defendant submitted the application, Exh. 14 requesting to reject the plaint in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure submitting that the suit is barred by the law of limitation. The learned trial Court vide impugned order has dismissed the said application holding that the question of limitation is a mixed question of law and fact and, therefore, until and unless the evidence is led, the plaint cannot be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court rejecting the application, Exh. 14 and not rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation, the applicant- original defendant has preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
4. Shri R.S. Sanjanwala, learned Senior advocate appearing on behalf of the applicant-original defendant has vehemently submitted that the learned trial Court has materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure solely on the ground that the question of limitation is a mixed question of law and fact. It is submitted that if on the face of it and considering the averments made in the plaint, if it is found that the suit is barred by the law of limitation, as held by the Hon’ble Supreme Court in catena of decisions, the plaint can be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure and, therefore, it is submitted that the learned trial Court has materially erred in not exercising the jurisdiction vested in it. It is submitted that as such the suit is barred by the law of limitation. Even considering the averments made in the plaint, it has been specifically averred that the final bill was submitted on 09/02/2006 and, therefore, the period of limitation would start from the date on which the final bill was submitted. It is submitted that considering the provisions of the Limitation Act the suit is required to be filed within the period of three years and as the suit has been filed in the month of October, 2011 the suit is barred by the law of limitation and, therefore, the learned trial Court ought to have rejected the plaint in exercise of powers under Order 7 Rule 11 (d) of the Code of Civil Procedure. It is further submitted by Shri Sanjanwala, learned Senior advocate appearing on behalf of the applicant-original defendant that mere correspondences between the parties would not expand the period of limitation and, therefore, it is submitted that any correspondence that has been done after the cause of action of filing the suit would not save the period of limitation and, therefore, it is requested to admit/allow the present Civil Revision Application.
5. The present Civil Revision Application is opposed by Shri Majmudar, learned advocate appearing on behalf of the respondent-original plaintiff, who is on caveat. It is submitted that the learned trial Court has rightly dismissed the application, Exh. 14 and has rightly refused to reject the plaint in exercise of powers under Order 7 Rule 11 of the Code of Civil Procedure on the ground that the suit is barred by the law of limitation. It is submitted that in the facts and circumstances of the case when for the first time the respondent-original defendant replied to the notice dated 19/10/2008 the cause of action in favour of the respondent-original plaintiff to institute the suit has arisen and, therefore, when the suit has been filed in the month of October, 2011 i.e. within the period of three years, the learned trial Court has rightly refused to reject the plaint on the ground that the suit is barred by law of limitation.
6. Shri Majmudar, learned advocate appearing on behalf of the respondent-original plaintiff has submitted that in the facts and circumstances of the case, there is serious dispute from which day the cause of action to file the suit has arisen and, therefore, in such a situation unless and until the evidence is led and the aforesaid aspect is considered in detail, the plaint cannot be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure and, therefore, it is requested to dismiss the present Civil Revision Application.
7. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the applicant-original defendant submitted the application, Exh. 14 in Summary Suit No. 13/2011 to reject the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure. It cannot be disputed that if on the face of it and considering the averments made in the plaint it is found that the suit is barred by the law of limitation, the plaint can be rejected under Order 7 Rule 11 of the Code of Civil Procedure. However it is required to be noted that in exercise of the powers under Order 7 Rule 11 of the Code of Civil Procedure the respondent-original plaintiff would be non-suited without further trial and, therefore, if on the face of it and considering the averments made in the plaint, it is found that the suit is clearly barred by the law of limitation then and then only he plaint can be rejected. However, it it requires interpretation of documents and/or the disputed question, whether the suit is barred by the law of limitation or not requires further consideration, in that case, the plaint is not required to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure. Even, if it is found that it is doubtful whether the suit is barred by the law of limitation or not, in that case also the plaint cannot be rejected under Order 7 Rule 11 of the Code of Civil Procedure. In the present case, there is a serious dispute with respect to the starting point of limitation, whether the starting point of limitation would be from the date on which the final bill was submitted and/or in view of the correspondences between the parties and issuing notice by the respondent-original plaintiff calling upon the applicant-original defendant to make the payment due and payable, which came to be refuted and/or denied by replying to the notice, the period of limitation would start from such denial? All the aforesaid questions are required to be considered in detail on leading the evidence by the respective parties and, therefore, on the face of it and considering the averments made in the plaint, it cannot be said that the suit is barred by the law of limitation. Under the circumstances, this Court is of the opinion that the plaint is not required to be rejected in exercise of powers under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is clearly barred by the law of limitation. Under the circumstances, no illegality has been committed by the learned trial Court in rejecting the application submitted by the applicant-original defendant to reject the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure, which calls for the interference of this Court in exercise of powers under Section 115 of the Code of Civil Procedure.
8. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.) siji