Dismissed

M/S Shree Electronics v. M/S Bpl Limited

Karnataka HC22 Feb 2024RFA/2257/2023

Case brief

AI extract

What is this about?

Defendants appealed against rejection of their money-recovery counter-claim under Order VII Rule 11(d) as time-barred. The High Court held the counter-claim, deemed instituted when made in court in 2023 for a cause of action of 1995, was hopelessly barred by limitation and dismissed the appeal.

What did the court decide?

None granted; appeal dismissed with no costs, affirming rejection of the counter-claim.

M/S Shree Electronics Vs M/S Bpl Limited — Civil Procedure and Limitation | Karnataka HC (2024)

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R.F.A No.2257/2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF FEBRUARY, 2024

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PRESENT

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THE HON’BLE MR. P.S. DINESH KUMAR, CHIEF JUSTICE

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AND

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THE HON’BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

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R.F.A NO. 2257 OF 2023 (MON)

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BETWEEN:

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M/S SHREE ELECTRONICS

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A REGISTERED PARTNERSHIP FIRM

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HAVING ITS OFFICER AT NO.14

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OPP. HALWASIA MARKET

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LUCKNOW-226 001.

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UTTAR PRADESH

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REPRESENTED BY ITS PARTNER

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SRI AMIT KUMAR SINGH

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SMT. PUSHPA SINGH W/O SRI KAUSHLENDRA SINGH AGED ABOUT 60 YEARS PARTNER OF M/S. SHREE ELECTRONICS R/O NO.129, RAVINDRA PALLI

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FAIZABAD ROAD

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LUCKNOW-226 006.

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UTTAR PRADES.

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SRI. AMIT KUMAR SINGH S/O SRI. KAUSHLENDRA SINGH AGED ABOUT 46 YEARS PARTNER OF M/S. SHREE ELECTRONICS R/O NO.129, RAVINDRA PALLI

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FAIZABAD ROAD

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R.F.A No.2257/2023

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LUCKNOW-226 006. UTTAR PRADESH …APPELLANTS

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(BY SHRI. A.M. VIJAY, ADVOCATE)

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AND:

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M/S BPL LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT BPL WORKS, PALAKKAD-676 007. KERALA AND ITS OFFICE AT NO.13 BPL TOWERS, KASTURBA ROAD BENGALURU-560 001. …RESPONDENT

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(BY SHRI. DHANANJAY VIDYAPATI JOSHI, SENIOR ADVOCATE FOR SMT. KAVITHA DAMODARAN, ADVOCATE AND SHRI. H.U. VACHAN, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE ORDER DATED 07.11.2023 PASSED ON I.A.NO.11 IN OS.NO.10380/1995 ON THE FILE OF THE LXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BENGALURU, ALLOWING THE I.A.NO.11 FILED UNDER ORDER 7 RULE 11 (d) OF CPC.

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THIS RFA, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 29.11.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, CHIEF JUSTICE PRONOUNCED THE FOLLOWING:-

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JUDGMENT

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This appeal by the defendants is directed against Order on I.A.No.11 filed under Order VII Rule 11(d) of the CPC, dated November 07, 2023 in O.S. No.10380/1995 passed by the LXXIII, Additional City Civil Judge, Bangalore rejecting the counter-claim.

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R.F.A No.2257/2023

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For the sake of convenience, parties shall be

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referred as per their status before the Trial Court.

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Heard Shri. A.M.Vijay, learned Advocate for the

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appellants/defendants and Shri. Dhanajay Joshi, learned Senior Advocate for the respondent/plaintiff.

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Brief facts of the case are, plaintiff, BPL Ltd has brought O.S. No.10380/1995 for recovery of Rs.12,46,625/from the defendants. Defendants were given ‘BPL Gallery’ to promote sale of plaintiff’s products. During the course of business, defendants became liable to pay the decreetal sum. The suit has been decreed ex parte. Defendants’ Miscellaneous Petition under Order IX Rule 13 of the CPC has also been dismissed. On appeal, this Court in MFA No.1629/2020, set-aside the ex parte judgment and restored the suit on the file of the Trial Court. Defendants filed a counter-claim against plaintiff for recovery of sum of Rs.1,21,58,162/- along with interest. The learned Trial Court

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has rejected the counter-claim under Order VII Rule 11(d) of

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R.F.A No.2257/2023

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CPC on the ground that the counter claim was barred by law of limitation. Aggrieved, defendants have preferred this appeal.

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Shri. A.M.Vijay, for the defendants, in substance, submitted that the learned Trial Judge has failed to consider that, initially, on 21.03.2011 an ex-parte decree was passed in the instant suit and it was challenged in MFA No. 1629/2020. This Court¹ allowed the said appeal and remitted the matter to the Trial Court for fresh disposal. The defendants could not have filed their counter claim earlier. Therefore, the impugned order rejecting the counter claim is bad in law.

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Shri. Joshi, for the plaintiff, arguing in support of the impugned order, submitted that the cause of action as per the counter claim arose on 07.04.1995 and therefore, defendants ought to have filed the suit for recovery within a period of three years. The learned Trial Judge has rightly

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1 dated 24.07.2023

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R.F.A No.2257/2023

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rejected the counter claim on the ground that it is barred by law of limitation.

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We have carefully considered rival contentions and perused the records.

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Undisputed facts of the case are, plaintiff’s suit

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has been decreed on 21.03.2011. Defendants have filed their Miscellaneous Petition under Order IX Rule 13 of the CPC in 2011. Ultimately, the suit has been restored vide order dated 24.07.2023 in MFA No.1629/2020.

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Plaintiff’s suit is for recovery of Rs.12,46,625/-. Defendants’ counter claim is for Rs.1,21,58,162/-. The cause of action mentioned in the counter claim is 05.04.1995. Admittedly, the counter claim is also for recovery of money. In the absence of plaintiff’s suit, the defendants ought to have brought their suit within three years from the date of cause of action, which would expire in 1998.

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R.F.A No.2257/2023

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Surprisingly, the defendants have urged thus as a

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ground of appeal:

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“15. The Learned Trial Judge has failed to appreciate the provisions of Section 3(b)(ii) of the Limitation Act as per which a Counter Claim shall be deemed to have been instituted on the date when such a Counter Claim is made in court. Having regard to this legal position, the Trial Court ought to have ruled in favour of the Appellants that the date of reckoning for the purposes of limitation with respect to the Counter Claim should be the date when the same was presented i.e., 01.09.2023.”

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Section 3(b)(ii) of the Limitation Act, 1963 reads

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thus:

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“(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted—

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(i) xxxx

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(ii) in the case of a counter claim, on the date on which the counter claim is made in court.”

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Thus, it is clear that a counter claim shall be

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deemed to have been instituted on the date it is made in the

Court.

R.F.A No.2257/2023

Admittedly, defendants’ counter claim is filed

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Court in 2023 and it is hopelessly barred by time. This being unambiguous, no exception can be taken to the order passed by the learned Trial Judge.

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Resultantly, this appeal must fail and it is

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accordingly, dismissed .

No costs.

Sd/CHIEF JUSTICE

Sd/JUDGE

SPS

M/S Shree Electronics v. M/S Bpl Limited

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M/S Shree Electronics v. M/S Bpl Limited

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