Dismissed

Smt Vidushi Garg v. M/S Gauri Sales and Anr.

Rajasthan HC21 May 2018CFA/923/2017

Case brief

AI extract

What is this about?

The High Court dismissed the first appeal against the trial court's order rejecting the plaint under Order 7 Rule 11 CPC. The court held that since the plaint explicitly stated the loan was made via cheque in 2013 and the suit was filed in 2016, the matter was a pure question of law. Under Articles 19 and 20 of the Limitation Act, 1963, the suit was time-barred, and the appeal was rejected.

What did the court decide?

The appeal was dismissed.

Smt Vidushi Garg Vs M/S Gauri Sales and… — Contract and Commercial Disputes | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil First Appeal No.923/2017

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Smt. Vidushi Garg, Wife of Shri Pankaj Garg, aged about 40 years, by caste Vaisay, resident of 143, Gomes Defence Colony, Avenue No.2, Vaishali Nagar, Jaipur (Rajasthan).

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----Appellant-Plaintiff

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Versus

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M/s Gauri Sales, 1078, Ramanand Complex, Jhalaniyo Ka Rasta, Kishanpole Bazar, Jaipur through Proprietor Smt. Sapna Soni, Wife of Shri Mukesh Soni.

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Pradeep Kumar Khandelwal, Son of Shri Radhey Shyam Khandelwal, by caste Mahajan, Representative & Manager M/s Gauri Sales R/o House No.40, Sriram Nagar, Opposite Adarsh Vidhya Mandir School, Kalwad Road, Jhotwada, Jaipur.

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----Respondents-Defendantss

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For Appellant(s) : Mr. Sudesh Bansal

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For Respondent(s) : Mr. M P Khandelwal

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HON'BLE MR. JUSTICE PRAKASH GUPTA

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Judgment

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21/05/2018

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Present first appeal is directed against the order dated 28.10.2017 passed by Additional District & Session Judge, No.7, Jaipur Metropolitan, Jaipur whereby the trial court allowed the application filed by the defendants under Order 7 Rule 11 CPC and rejected the plaint under Order 7 Rule 11 CPC.

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Brief facts giving rise to this appeal are that the appellantplaintiff filed a suit for recovery of Rs.20 lacs and interest accrued thereon. In the plaint, it is stated that defendants-respondents took a loan vide cheque dated 18.02.2013 which was encashed on 23.02.2013 with an assurance and agreement that the same would be returned after 1-2 months. It is also stated in the plaint that the defendants did not return the aforesaid loan amount

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(2 of 7)

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[CFA-923/2017]

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within the stipulated period despite several requests made by the plaintiff. Ultimately a legal notice was sent to the defendants on 17.08.2013, asking them to pay the loan amount. The same was replied by the defendants denying the said amount to be a loan.

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The defendants resisted the suit by filing written statement wherein they denied the plaint allegation. After filing the written statement an application under Order 7 Rule 11 CPC was filed by the defendants wherein it was stated that as per the plaintiff, loan was given on 23.02.2013 through the cheque whereas the suit was filed on 12.08.2016. Therefore, the suit is prima facie time barred in view of Article 19 & 20 of the Limitation Act, 1963. Therefore, the suit is liable to be rejected. Plaintiff resisted the application by filing reply wherein it was stated that the question of limitation is a mixed question of law and fact and the same should be decided after taking evidence of both the parties. It is also stated in the reply that at this stage question of limitation cannot be decided since in the plaint, it was stated that cause of action had arisen on 15.07.2016 when defendants refused to pay the loan amount.

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4.. After hearing both the parties, learned trial court allowed the application under Order 7 Rule 11 CPC and rejected the plaint.

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Hence, this first appeal.

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It is submitted by learned counsel for the appellant that impugned order dated 28.10.2017 is contrary to the facts and against the provisions of law. The issue of limitation in the present suit is a mixed question of law and fact and the same cannot be adjudicated without recording evidence of the parties. It is

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(3 of 7)

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[CFA-923/2017]

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submitted that the present case does not fall under Article 19 & 20 of the Limitation Act but the same falls either under Article 113 or

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Article 55 of the Limitation Act. Thus, the present suit cannot be held to be barred by Limitation. It is also submitted that from the allegation of the plaint, it is clear that the present case is not a simplicitor case of granting loan by cheque but there was an agreement/contract between the parties as pleaded in the plaint. It was specifically pleaded in the plaint that the defendants assured to refund the amount within 1-2 month. These fact can only be decided after taking evidence of both the parties.

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In support his contentions, learned counsel for the appellant has placed reliance on the following judgments:-

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1. (2014) 16 SCC 125, Surjit Kaur Gill & Anr. Vs. Adarsh Kaur Gill & Anr.;

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2. (2006) 5 SCC 658, Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust & Ors.;

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3. (2005) 6 SCC 614, Narne Rama Murthy Vs. Ravula Somasundaram & Ors.;

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4. AIR 1976 Andhra Pradesh 273, Shatzadi Begum Saheba & Ors. Vs. Girdharilal Sanghi & Ors.

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On the other hand, learned counsel for the respondentsdefendants has submitted that as per the plaint allegation loan of Rs.20 lacs was given by the plaintiff to the defendants on 23.10.2013 by cheque. In view of Article 19 & 20 of the Limitation Act, limitation starts from the date when the loan was made. The present matter clearly falls under Article 19 & 20 of the Limitation Act and the trial court is right in holding that the present suit is barred by limitation.

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(4 of 7)

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[CFA-923/2017]

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I have considered the rival submissions made by learned counsel for the parties and perused the material on record. 9. In Surjit Kaur Gill & Anr. (supra), the Hon'ble Supreme Court has held that issue of limitation is a mixed question of facts and law.

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In Narne Rama Murthy (supra), the Hon'ble Apex Court has held that question of limitation is a pure question of law and if from the pleadings itself, it becomes apparent that the suit is barred by limitation, then it is the duty of the Court to decide the question of limitation at the outset even in the absence of a plea. But in cases where the question of limitation is a mixed question of law and fact and suit does not appear to be barred by limitation on the face of it, then the same can be decided only after taking evidence of both the parties.

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Question of limitation goes to the route of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.

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Section 3 of the Limitation Act, 1963 reads as under:-

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“3. Bar of limitation.— (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

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(2) For the purposes of this Act— (2) For the purposes of this Act —

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(a) a suit is instituted—

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(i) in an ordinary case, when the plaint is presented to the proper officer; (i) in an ordinary case, when the plaint is presented to the proper officer;

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(5 of 7)

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[CFA-923/2017]

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(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and

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(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator; (iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

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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— (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) in the case of a set off, on the same date as the suit in which the set off is pleaded; (i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

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

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(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.”

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Hon’ble Supreme Court in V.M. Salgaocar & Bros. V. Board of Trustees of Port of Mormugao & Anr. (2005) 4 SCC

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613 in paragraphs 20 & 21 observed as under:-

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“20. The mandate of Section 3 of Limitation Act is that it is the duty of the Court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is exfacie barred by the Law of Limitation, a Court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation.

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21. This Court in Manindra Land & Building Corporation Ltd. Vs. Bhutnath Banerjee and others reported in AIR 1964 SC 1336 held (para 9):-

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(6 of 7)

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[CFA-923/2017]

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"Section 3 of the Limitation Act enjoins a Court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefor by Schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the subordinate Court comes to an erroneous decision, it is open to the Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume the jurisdiction to proceed with the determination of that matter."

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For the sake of convenience, the relevant Articles of the

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Limitation Act, 1963, are reproduced below:-

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Description of suit	Period of Limitation	Time from which period begins to run
19. For money payable for money lent.	Three years	When the loan is made.
20. Like suit when the lender has given a cheque for the money.	Three years	When the cheque is paid.

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Coming to the facts of the instant case, I am of the considered opinion that the question of limitation is a pure question of law in the present case since it has been specifically mentioned in the plaint itself that the loan was given on 08.02.2013 through a cheque which was encashed on 23.02.2013. Further, the suit was filed only in August, 2016. Thus, from a bare reading of the plaint and Article 20 of the Limitation Act, it is clear

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(7 of 7)

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[CFA-923/2017]

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that the suit was barred by limitation. The question of limitation would have been a mixed question of law and fact if, for instance, the plaint would not have been clear, question of limitation would have been inextricably linked with the question whether there was a loan transaction or not. In this case, even if the loan transaction as alleged by the plaintiff is assumed to have taken place, the plaint makes it amply clear that the cheque was paid on 23.02.2013 and the suit was filed on 12.08.2016 thereby making it time barred. Article 55 has no applicability since in this case, the suit was not filed for claiming compensation for breach of a contract. Similarly, Article 113 has no applicability since this is a type of suit in respect of which limitation has been clearly provided.

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In view of the Article 19 & 20 of the Limitation Act, the present suit is clearly barred by limitation. Only on this ground that in the plaint it was stated that the loan was repayable after 1- 2 months, it cannot be said that suit filed by the plaintiff is within limitation or there is any mixed question of law and facts.

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I find no illegality or perversity in the impugned order dated 28.10.2017 of the court below.

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The appeal, being devoid of any merit, is liable to be dismissed and is dismissed accordingly.

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(PRAKASH GUPTA) J.

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Sanjay Gaur/63

Smt Vidushi Garg v. M/S Gauri Sales and Anr.

Case brief

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Smt Vidushi Garg v. M/S Gauri Sales and Anr.

Case brief

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