Dismissed

Sri.Kalikamba Vinayaka Temple v. Sri.Harischandra Acharya

Karnataka HC11 Dec 2023CRP/305/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a Civil Revision Petition challenging the rejection of an application under Order VII Rule 11 CPC. The Court held that the Trial Court was correct in not rejecting the plaint on limitation grounds, as the issue of whether the limitation period started and whether the Labour Court proceedings were properly pursued is a question of fact for the Trial Court to de

What did the court decide?

The Civil Revision Petition filed under Section 115 of the CPC was dismissed as the High Court found no error in the trial court's rejection of the application under Order VII Rule 11.

Sri.Kalikamba Vinayaka Temple Vs… — Contract and Commercial Disputes | Karnataka HC (2023)

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1 - NC: 2023:KHC:44786 CRP No. 305 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO.305 OF 2020 (IO)

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BETWEEN:

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SRI. KALIKAMBA VINAYAKA TEMPLE CAR STREET, MANGALURU – 575 003 REPRESENTED BY ITS MANAGING TRUSTEE REPRESENTED HEREIN BY ITS SECOND TRUSTEE SUNDARA ACHARYA BELAVI S/O LATE GOPALA ACHARYA

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…PETITIONER

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(BY SRI. ANANDARAMA K., ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. HARISCHANDRA ACHARYA S/O SHIVARAM ACHARYA AGED ABOUT 51 YEARS R/A “SRI HARI”, SANTHOSH APARTMENTS, KODICAL CROSS ROAD, ASHOKNAGAR, MANGALURU – 575 006

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…RESPONDENT

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(BY SRI. RAJASHEKAR, ADVOCATE)

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THIS CRP FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 24.09.2020 PASSED ON IA No.VI IN OS.No.1232/2017 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, MANGALURU DAKSHINA KANNADA, REJECTING THE IA

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VI FILED UNDER ORDER VII RULE 11(a)(d) OF CPC FOR REJECTION OF PLAINT.

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THIS PETITION, COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has challenged the order dated 24.09.2020

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passed by the Principal Civil Judge, Mangaluru, Dakshina Kannada, in O.S.No.1232/2017, by which, an application filed by it under Order VII Rule 11(a)(d) of Civil Procedure Code, 1908 was rejected.

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The suit in OS.No.1232/2017 was filed by the respondent herein on 26.10.2017 for recovery of a sum of Rs.2,41,920/- and interest at the rate of 12% p.a., from the date of suit till repayment.

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The respondent claimed that he was employed as a

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Manager in the petitioner-Temple and that he was accused of misappropriation of a sum of Rs.1,51,200/- between 2008 to 2012. He claimed that he was called upon to reimburse the said sum and a complaint was lodged with the jurisdictional police. He claimed that, though, he had given appropriate explanation before the police that in the audit report for the year 2008 to

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2012, there is no mention of any misappropriation nonetheless, at a meeting of the petitioner held on 06.08.2012, it was decided that the respondent shall pay a sum of Rs.1,51,200/to the petitioner within a week and if it is found after a fresh audit that there was no misappropriation, the amount would be returned to the respondent.

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The respondent claimed that in good faith and believing the statement made, he deposited a sum of Rs.1,51,200/- on 10.08.2012. However, the petitioner did not keep up his promise, but in the meanwhile, removed him from employment, which forced him to initiate proceedings in IDR.No.2/2015, which was referred to the Labour Court on 02.03.2015. He claimed that before the Labour Court, he also sought for recovery of a sum of Rs.1,51,200/-. However, the Labour Court in terms of its order dated 31.07.2017, ordered reinstatement of his services, but rejected his prayer for recovery of a sum of Rs.1,51,200/-. Therefore, he filed a suit on 26.10.2017 for recovery of a sum of Rs.1,51,200/- along with interest.

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The petitioner contested the suit, filed his written statement and denied the assertion that he had received a sum of Rs.1,51,200/- and had agreed that re-audit, if it is found that the respondent was not guilty of misappropriation, the amount would be refunded. The petitioner, thereafter, filed an application under Order VII Rule 11 of CPC contending that the suit filed for recovery was belated. The said application was opposed by the respondent by contending that he was pursuing the relief in the wrong forum. Therefore, he was entitled to seek exclusion of the time in pursuing the proceeding before the Labour Court.

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The Trial Court held that the Labour Court is a civil court in view of Section 11 of the Industrial Disputes Act, 1947 and held that since the respondent was pursuing the relief of recovery of a sum of Rs.1,51,200/- before the Labour Court, the respondent was entitled to seek exclusion of period of 2 years, 9 months and 19 days and consequently rejected the application filed by the petitioner. Being aggrieved by the same, the petitioner is before this Court.

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Learned counsel for the petitioner contended that

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under Order VII Rule 6 of CPC, it is incumbent upon the plaintiff to plead specifically the ground upon which the exemption from the applicability of provisions of Limitation Act, 1963 is claimed. He invited the attention of the Court to the plaint and contended that the respondent did not set out the ground under which he had sought exemption from the applicability of Limitation Act. Even otherwise, he contends that the Labour Court was not a Court for the purposes of Limitation Act and therefore, the respondent was not entitled to claim the benefit of Section 14 of the Limitation Act. In this regard, he relied upon the following judgments:

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i. Nityananda M.Joshi & Others Vs. Life Insurance Corporation of India & Others - 1969 (2) SCC 199);

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ii. Sakuru Vs. Tanaji - (1985) 3 SCC 590;

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iii. Ganesan Rep. by its Power Agent, G.Rukmani Ganesan Vs. Commissioner, Tamil Nadu Religious and Charitable Endowments Board & Others – (2019) 7 SCC 108;

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He contended that the Court should not be averse

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to nip mischievous suits in the bud. In this regard, he relied on the judgment of the Hon’ble Supreme Court in the case of T.Arivandandam Vs. T.V.Satyapal and Others reported in

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(1977) 4 SCC 467 . He also contended that, if upon reading of the plaint, it is highly barred by law of limitation, the Court should exercise power under Order VII Rule 11(d) of CPC. In this regard, he relied upon the judgment of a Co-ordinate Bench of this Court in CRP.No.307/2020 as well the judgment of the Hon’ble Supreme Court in the case of Hardesh Ores (P) Ltd., Vs. Hede & Company reported in (2007) 5 SCC 614; Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead, Through Legal Representatives and Others reported in (2020) 7 SCC 366; and Church of Christ Charitable Trust & Educational Charitable Society Rep. by its Chairman Vs. Ponniamman Educational Trust Rep. by its Chairperson/Managing Trustee reported in (2012) 8 SCC

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706 .

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Per contra, learned counsel for the respondent submitted that the plaint disclosed that the respondent had paid a sum of Rs.1,51,200/- on 10.08.2012 and that it was specifically agreed by the petitioner that after a fresh audit, if it is found that the respondent was not guilty of misappropriation, the amount would be refunded back to him. He contends that

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the account of the petitioner is not re-audited. Therefore, the limitation for recovery of amount had not commenced as provided under Article 26 of the Limitation Act. He contends that the issue of limitation has to be considered based on the averments made in the plaint and time to recover the amount did not commence until the respondent conducted a re-audit of its accounts. Even otherwise, he contends that the amount of Rs.1,51,200/- was paid on 10.08.2012 and in the ordinary course, the amount had to be recovered within three years i.e., on or before 10.08.2015. He contends that the proceedings was initiated before the Labour Court, where the respondent did seek for the relief of recovery of a sum of Rs.1,51,200/- and the Labour Court disposed off the proceedings on 31.07.2017. He contends that the suit was filed for recovery on 24.10.2017. Thus, he claimed that if time consumed in pursuing the proceeding before the Labour Court i.e., between 02.03.2015 and 31.07.2017 is excluded, then the suit filed on 24.10.2017 is well within the limitation. He contends that whether the Labour Court was a Court or not, was not material, but what was the material was, whether a civil proceeding was initiated before the Labour Court. Therefore, he contends that the trial

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Court was right in excluding the time consumed in pursuing the civil proceedings before the Labour Court. He contends that the trial Court has framed issues regarding limitation. Therefore, it was not prudent to reject the plaint at an interlocutory stage on the ground that it was barred by law of limitation.

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I have considered the submissions made by the learned counsel for the petitioner as well as learned counsel for the respondent.

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Perusal of the plaint discloses that the plaintiff had specifically pleaded that:

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“Plaintiff submits that even after giving said explanation in order to set right the mistake made by defendant, defendants managing committee held the meeting on 06.08.2012 in the name of god and before the community peoples, it was decided that plaintiff shall pay a sum of Rs.1,51,200/- to the defendant-temple within a week and the defendant shall make auditing afresh and after auditing is completed, if it is found that there was no misappropriation, the amount paid by the

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plaintiff will be returned. Believing the statement given before god and in front of community people, plaintiff has deposited a sum of Rs.1,51,200/- to the defendanttemple on 10.08.2012. However, the defendant did not keep up their promise and plaintiff had to move before the Labour Court and accordingly, plaintiff lodged a case before labour court in IDR.No.2/2015.”

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The aforesaid pleadings would lay the onus of proof upon the respondent that the petitioner had agreed to conduct a re-audit of the accounts and that on re-audit, if it was found that there is no misappropriation, the amount paid by him would be returned. Therefore, as rightly contended by the learned counsel for the respondent, since it is stated that no such re-audit was conducted, the time for filing a suit as specified in Article 26 of the Limitation Act, did not commence.

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Be that as it may, since the petitioner denied his liability to pay a sum of Rs.1,51,200/- before the Labour Court and since the Labour Court has rejected the claim of the respondent on the ground that it lacked jurisdiction, it has to be construed that the respondent was pursuing the relief before

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the wrong forum. If this is considered, the date on which the amount was paid and the date of filing the proceedings before the Labour Court and the date of disposal of the proceedings before the Labour court and also the date on which the present suit is filed, prima facie, it indicates that the suit was filed well within the limitation by applying Section 14 of the Limitation Act.

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The Trial Court has considered the aforesaid and rightly held that the plaint cannot be rejected on the ground that the suit is barred by law of limitation. Since, the issue whether the petitioner had agreed to refund the amount after re-audit, is a question of fact that the respondent has to prove before the Trial Court and limitation being a mixed question of fact and law, ought to be determined taking into account, the evidence that the respondent may adduce before the trial Court. This cannot certainly be done by entertaining an application at an interlocutory stage to reject the plaint.

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In that view of the matter, there is no error committed by the trial Court in rejecting the application. Hence, this petition is dismissed . Since the trial Court has framed an

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11 -

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issue whether the suit filed is within the limitation or not, it is bound to a render finding on that issue, more particularly, in view of Section 3 of the Limitation Act. In doing so, the trial Court shall not be influenced by any observations made by this

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Court in the course of this order.

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Accordingly, this petition is dismissed .

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Sd/JUDGE

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List No.: 1 Sl No.: 19

Sri.Kalikamba Vinayaka Temple v. Sri.Harischandra Acharya

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Sri.Kalikamba Vinayaka Temple v. Sri.Harischandra Acharya

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