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2017 DIGILAW 248 (MAD)

FLYWAYS v. ALM LEATHER EXPORTS

2017-01-25

N.SATHISH KUMAR

body2017
ORDER : N. SATHISH KUMAR, J. 1. The captioned application has been filed by the applicant/original 2nd defendant to decide the issue Nos. 1 and 2 as the preliminary issues. 2. The brief facts of the case are as follows: The suit has been filed by the original plaintiff for recovery of a sum of Rs. 50,04,154/- with subsequent interest at the rate of 24% per annum from the date of the plaint till the date of realisation. It is the contention of the applicant/original 2nd defendant that he has already filed an application to reject the plaint. The original plaintiff had initially filed Consumer complaint in C.C. No. 20 of 2007 before the State Consumer Disputes Redressal Commission (hereinafter referred as "Consumer Forum"). Against which, the applicant herein/original 2nd defendant has filed MP.No.80 of 2007 to reject the complaint on the ground that Consumer Forum has no jurisdiction. The said petition was dismissed by the Consumer Forum on 16.06.2008. Thereafter, the applicant/original 2nd defendant filed an appeal before the National Consumer Disputes Redressal Commission wherein the original 2nd defendant was allowed to withdraw the said appeal with liberty to raise all the objections in the main complaint. According to the applicant/original 2nd defendant the present suit has been filed on the same cause of action and the original plaintiff is not entitled to avail the benefit of Section 14 of the Limitation Act. It is the contention of the learned counsel for the applicant/original 2nd defendant that the suit is barred by limitation. Hence, the applicant/original 2nd defendant prayed to try the issue Nos. 1 and 2 as the preliminary issues. 3. It is the case of the 1st respondent/original plaintiff that already similar issue has been decided by this Court and the appeal filed as against the order of this Court has also been withdrawn by the applicant /original 2nd defendant. It is the contention of the 1st respondent/ original plaintiff that the application is not maintainable as the issue of limitation involves both question of fact and question of law. Hence, the 1st respondent/ original plaintiff prayed for dismissal of the application. 4. The learned counsel for the applicant/original 2nd defendant submitted that cause of action for the suit arose on 06.3.2007 whereas the 1st respondent/original plaintiff has filed the consumer complaint on 31.3.2007. Hence, the 1st respondent/ original plaintiff prayed for dismissal of the application. 4. The learned counsel for the applicant/original 2nd defendant submitted that cause of action for the suit arose on 06.3.2007 whereas the 1st respondent/original plaintiff has filed the consumer complaint on 31.3.2007. The issue of jurisdiction has also been raised by the applicant/original 2nd defendant before the Consumer Forum. But knowing very well that the applicant/original 2nd defendant was prosecuting the complaint before the wrong Forum and that he has also withdraw the appeal before the National Forum, the 1st respondent/ plaintiff has filed the present suit. No application under Section 14 of the Limitation Act has been filed. Further, the 1st respondent/ original plaintiff has not shown due diligence of proceedings initiated in wrong Forum and 2007 itself, the original plaintiff has knowledge about the jurisdiction. Hence, the suit is barred by limitation and the issue Nos.1 and 2 have to be decided as the preliminary issues. 5. Whereas it is the contention of the learned counsel for the 1st respondent/original plaintiff that question of limitation involves facts and law and as the issue has already been decided by this Court, now the same cannot be re-agitated. Hence, the learned counsel for the 1st respondent/original plaintiff prayed for dismissal of the application. 6. The captioned application is filed to try the issue Nos.1 and 2 as the preliminary issues on the ground that there is no cause of action and the suit is barred by limitation. 7. It is to be noted that the applicant/original 2nd defendant has already filed an application under Order 7, Rule 11 (a) and (d) of CPC, for rejection of plaint, wherein also he has urged the same grounds that the suit is barred by limitation and also it does not disclose cause of action. The said application was dismissed, on merits, by this Court, vide order dated 25.11.2014. As against the said order, an appeal was filed and during arguments, the learned counsel for the applicant/original 2nd defendant, withdrew the appeal. The order of the Division Bench of this Court reads as follows:- " .. .. .. After some arguments, the learned counsel for the appellant seeks to withdraw the appeal and submits that he would urge before the learned single Judge, post framing of issues, the issue of limitation to be tried as preliminary issue. Endorsement has been made. 2. The order of the Division Bench of this Court reads as follows:- " .. .. .. After some arguments, the learned counsel for the appellant seeks to withdraw the appeal and submits that he would urge before the learned single Judge, post framing of issues, the issue of limitation to be tried as preliminary issue. Endorsement has been made. 2. .. .. .. " 8. The order of the Division Bench clearly show that only the counsel for the applicant/ original 2nd defendant made an endorsement that he would urge the issue of limitation after framing of issues. Only on the ground of endorsement, the appeal was dismissed as withdrawn. The above facts clearly indicate that the detailed order dated 25.11.2014 passed by this Court in the application filed to reject the plaint on the ground that the suit is barred by law, stands good and reached finality. The contention put forth by the applicant/ original 2nd defendant in this application is also similar to the contention urged before this Court in previous application i.e. application No.767 of 2014 (to reject the plaint). 9. Insofar as the question of limitation is concerned, this Court, while dealing with every objection, has held that it is a mixed question of law and fact. This Court has also held that when the plaintiff, in paragraphs 13 to 15 of the plaint averments, has explained the time taken for the prosecution, the same need not be repeated by filing a separate application for condoning the delay under Section 14 of the Limitation Act. After refusing the entire contentions put forth by the applicant/original 2nd defendant, this Court has dismissed the application filed for rejection of the plaint. Now the captioned application has been filed urging the same contentions, which cannot be entertained. 10. It is pertinent to point out here that the conduct of the applicant/original 2nd defendant in filing the captioned application on different provisions of law, is nothing but abuse of process of law. The applicant/original 2nd defendant is trying to achieve by indirect means what he could not achieve by direct means. As held by this Court in Application No.767 of 2014, when the limitation aspect is a mixed question of law and fact, the applicant/original 2nd defendant cannot re-agitate the same by filing the present application to try the issue Nos. 1 and 2 as the preliminary issues. As held by this Court in Application No.767 of 2014, when the limitation aspect is a mixed question of law and fact, the applicant/original 2nd defendant cannot re-agitate the same by filing the present application to try the issue Nos. 1 and 2 as the preliminary issues. These issues have to be decided only after recording the evidence of the parties and under what circumstances the 1st respondent/original plaintiff was prosecuting the Consumer complaint before the Consumer Forum, is a matter of evidence. Therefore, this Court is of the view that the captioned application filed by the applicant urging the same ground, which was already negatived by this Court, is nothing but abuse of process of law. 11. Accordingly, the captioned application is dismissed.