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Madhya Pradesh High Court · body

2013 DIGILAW 4 (MP)

Jagmohan Das Khandelwal v. Vimal Kumar Surana

2013-01-02

A.K.SHRIVASTAVA

body2013
ORDER 1. This revision application under section 115 of the Code of Civil Procedure has been filed at the instance of applicant-defendant dismissing the application under Order 7 Rule 11 (d) CPC. 2. Needless to say, a suit for realization of Rs. 58,855/- has been filed by the plaintiff-respondent in the trial Court which is pending for its adjudication. The defendant-applicant filed written statement and denied the averments and raised objection of limitation as well as that plaintiff is not having registration of stock- brokers, sub-brokers, share transfer agents as required under section 12 of the “Securities and Exchange Board of India Act, 1992 (for short, the Act of 1992). According to the defendant-applicant, on account of lack of such registration as required under section 12 of the said Act of 1992, the suit is not maintainable. So far as the plea of limitation is concerned, the pleading of defendant is that as per the plaintiff’s own showing the transaction took place on 18.11.2000. Thereafter on 23.9.2003 i.e. within three years of limitation to file suit, the notice was sent through counsel but despite having received the said notice, the defendant/applicant did not make the requisite payment and hence according to the defendant, the suit which has been filed on 3.2.2004 on the basis of cause of action accrued on 23.9.2003 is ex facie barred by time. 3. The learned trial Court framed Issues no. 5 and 6 in regard to the aforesaid objections raised in the written statement by defendant-applicant. Thereafter, an application I.A. No. 1 has been filed by defendant-applicant Order 7 Rule 11(d) CPC praying that the plaint which has been filed is barred by law on the aforesaid objections which are raised in the written statement. The learned trial Court dismissed the objections raised in the application by holding that Issues 5 and 6 which are framed are having nexus with the facts and they are mixed question of fact and law and cannot be decided as preliminary issues and the suit cannot be dismissed at the threshold. In this manner this revision application under section 115 CPC has been filed by defendant-applicant. 4. In this manner this revision application under section 115 CPC has been filed by defendant-applicant. 4. Shri Dixit, learned counsel appearing for the defendant-applicant submits that since there is lack of registration as required under section 12 of the Act of 1992, the suit will not lie and further plaintiff’s own showing the account was settled on 18.11.2000 therefore, the suit which was filed on 3.2.2004 is ex facie barred by time and hence learned Trial Court has illegally with material irregularity in exercise of its jurisdiction rejected the objections and further the Court below has failed to exercise its jurisdiction by not dismissing the suit which is barred by law as well as it is time barred. 5. On the other hand Shri Modh, learned counsel appearing for the plaintiff-respondent argued in support of the impugned order and submits that specific issues in regard to the objections raised in the written statement have been framed by the learned trial Court since they are having nexus with the facts, therefore, at the threshold the suit cannot be said to be barred either on account of alleged non-registration as required under section 12 of the Act of 1992 or on the point of limitation and, therefore, rightly it has been held by learned trial Court that these two issues shall be decided at the time of final adjudication. Hence, it has been prayed that this revision application be dismissed. 6. Having heard learned counsel for the parties, I am of the view that this application of revision deserves to be allowed in part. 7. An application I.A. No. 13421/2012 has been filed for taking the documents on record. Indeed, the documents which have been filed are nothing but are the copies of plaint, written statement, issues, reply to the application filed under order 7 Rule 11 CPC as well as the written arguments. On bare perusal of the plaint, paras 3, 6, and 7, it is gathered that the account was settled between the parties and on 18.11.2000 and it was settled between them that defendant-applicant would pay a sum of Rs. 58,588/-. Admittedly, the suit has been filed on 3.2.2004 although notice to realize the said amount was sent by the plaintiff-respondent within time on 23.9.2003. 58,588/-. Admittedly, the suit has been filed on 3.2.2004 although notice to realize the said amount was sent by the plaintiff-respondent within time on 23.9.2003. However, there is no averment in the plaint that in pursuance to the said notice, the defendant-applicant has either made acknowlegment in writing or had made any payment on account of debt or of interest as required under sections 18 and 19 respectively of the Limitation Act, 1963. Learned counsel for the plaintiff-respondent is not in a position to state anything in regard to the acknowledgment in writing withing limitation or any payment made within limitation either towards principal or interest as required under sections 18 and 19 respectively of the Limitation Act has been made by the defendant-respondent. Hence, I am of the view that if no document in writing has been executed by the defendant-applicant within limitation either under section 18 or 19 of the Limitation Act, the suit of plaintiff would be definitely barred by time under Articles 1 and 2 of the Limitation Act which pertains to the suit relating to accounts for the balance due on a mutual, open and current account where there have been reciprocal demands between the parties and against a factor for an account. But, since plaintiff’s counsel Shri Modh is not in a position to state firmly that whether any acknowledgment in writing was made or any payment as required under sections 18 and 19 of the Limitation Act was ever made by the defendant-applicant, therefore, if any such document has ever been executed within limitation by the defendant-applicant, the plaintiff may amend the plaint and plead necessary averments in that regard. Since this fact has to be pleaded in the plaint, an opportunity should be given to the defendant-applicant to deny the same. 8. So far as the lack of registration as required under section 12 of the Act of 1992 is concerned, since it is having nexus with the facts and on the threshold the said facts cannot be decided and indeed it can be decided only after recording the evidence, therefore, that part of the impugned order, according to me does not require any interference. 9. Resultantly, this revision application succeeds and is hereby allowed in part. 9. Resultantly, this revision application succeeds and is hereby allowed in part. The impugned order so far as rejection of defendant-applicant’s objection on the ground of limitation, dismissing the application under Order 7 Rule 11(d) CPC on that count is hereby set aside and the learned trial Court is hereby directed that in case the plaintiff-respondent amend the plaint in regard to the limitation by filing the documents of acknowledgment within limitation executed by defendant-applicant in writing or any payment as required under sections 18 and 19 respectively of the Limitation Act which is made within limitation, that application may be allowed and thereafter the objections in regard to limitation may be decided. It is, however, made clear that in absence of filing any document pertaining to sections 18 and 19 of the Limitation Act, the suit of plaintiff shall be held to be barred by time. The learned trial Court shall re-decide the application filed under Order 7 Rule 11 CPC filed on behalf of defendant-applicant so far as the objection in regard to limitation is concerned. 10. The revision application is allowed in part to the extent indicated hereinabove with no order as to costs.