JUDGMENT : 1. Heard Shri Ajay Kumar Singh, learned counsel for the revisionist and Shri Prabodh Gaur, learned counsel for the plaintiff-respondents. 2. This revision has been filed by the defendant challenging the order dated 28.7.2012 passed by the Additional District Judge, Court No. 10, Varanasi in Civil Suit No. 1007 of 2008 (Administrators of Specified Undertaking of Unit Trust of India and another Vs. Om Prakash Lakhina and others) whereby the issue no. 1 which was to the effect whether the suit being barred by limitation is liable to be rejected under Order 7 Rule 11 CPC, was answered in the negative. 3. The aforesaid original suit was filed by the plaintiff-respondent seeking relief, inter alia, of a direction to the defendants to pay to the plaintiffs jointly and severally an amount of Rs. 43,25,346/- as particularly set out in Exhibit 'D' at the foot of the plaint along with interest at the rate of 12 percent per annum from 11.11.2015 till the date of filing of the suit. 4. It is alleged in the suit that fraud had been perpetrated by the other defendants in collusion with the defendant-revisionist who was then the Branch Manager of Unit Trust of India, Varanasi and large sums of money had been deposited by issuance of at par cheques in the name of the defendant no. 3 which were credited to the bank accounts of defendant no. 3. The amounts were stated to have been credited on 23.10.2000 and thereafter. It is stated that the entries of the cheques were not made in the utilization register at the time of the issuance of cheques. Other allegations are made against all the defendants. It is stated that a four member team of UTI, New Delhi, which conducted preliminary verification/ reconciliation of at par account in May 2002, collected the hard copy of paid data from 1 June 2000 to 30 June 2001 from defendant no. 1 which contained the signature of the defendant no. 1 on every page. It is stated that in the reconciliation statement made on 30.6.2001, the defendant no. 1 had deliberately and intentionally done wrong calculation by putting some fictitious figures to arrive at the bank figure. Misappropriation of an amount of Rs. 3.36 crores is alleged. It is stated in paragraph no. 38 that the defendant no. 1 on every page. It is stated that in the reconciliation statement made on 30.6.2001, the defendant no. 1 had deliberately and intentionally done wrong calculation by putting some fictitious figures to arrive at the bank figure. Misappropriation of an amount of Rs. 3.36 crores is alleged. It is stated in paragraph no. 38 that the defendant no. 1 had also prepared the false reconciliation statement, misrepresented fact and committed criminal omission of vital facts and information due to which the UTI had initiated criminal proceedings against the defendant nos. 1 and 2. In paragraph no. 39 of the plaint, it has been stated that an FIR dated 31.7.2002 had been filed against the defendants and that the defendant nos. 1 and 2 have been served with a charge-sheet. It is further stated that the CBI had arrested the defendant no. 1 on 24.7.2003 and he remained in police/judicial custody for a period of three months. It is further stated that on 30.11.2004, the Enquiry Officer had submitted his report which clearly implicated the defendant nos. 1 and 2 for defrauding the UTI of the aforesaid amount. The order of dismissal was passed against the defendant nos. 1 and 2 on 11.11.2005. In the appeal filed by the defendant no. 1, the Appellate Authority upheld the dismissal of the defendant no. 1 by means of an order dated 9.10.2006. It is stated in paragraph no. 40 that the plaintiff-respondents sent a legal notice dated 17.10.2007 demanding an amount of Rs. 37,09,400/-from the defendant no. 1 and 2 but they failed to return the said amount. In paragraph no. 50 of the plaint it has been stated that the cause of action in respect of the suit accrued on the final dismissal order dated 11.11.2005 being passed against the defendant nos. 1 and 2 and when they failed to respond to the demand notice dated 17.10.2007 and hence the present suit is not barred by the law of limitation. 5. By means of the impugned order, the court below observed that in paragraph no. 50 of the plaint the cause of action has been stated to be arisen for the first time on 11.11.2005 when the defendant nos. 1 and 2 were dismissed and they did not file any reply to the demand notice dated 17.10.2007 and that accordingly the suit was not barred by the Limitation Act, 1963. 50 of the plaint the cause of action has been stated to be arisen for the first time on 11.11.2005 when the defendant nos. 1 and 2 were dismissed and they did not file any reply to the demand notice dated 17.10.2007 and that accordingly the suit was not barred by the Limitation Act, 1963. The court below observed that the defendants had argued that the cause of action actually arose on that very day when the defendant no.1 was dismissed from service and that date was 11.11.2005 and therefore, it was necessary in view of section 3 of the Limitation Act, 1963 for the suit to be lodged within a period of three years from 11.11.2005 which was not done by the plaintiff and the suit was lodged on 28.08.2008. The Court below further stated that no direct relationship of the dismissal of the defendant no.1 exists in respect of the matter in question, though after his dismissal on the basis of the departmental inquiry it came to knowledge that in the above matter, the defendant no.1 had connived in the embezzlement and in this regard he was sent a demand notice so that the embezzled amount can be recovered but in view of non-receipt of an appropriate reply to the aforesaid demand notice, the plaintiff Bank was constrained to institute the suit for recovering the amount which has been instituted within the prescribed limitation of three years under section 3 of the Limitation Act, 1963 and thus it is not proved that the suit was barred by limitation. Accordingly, issue no.1 was decided at the preliminary stage in the negative. 6. The contention of the learned counsel for the defendant-revisionist is that a bare perusal of the plaint reveals that the suit is barred by limitation. He contends that a four member team of UTI, New Delhi had conducted a preliminary verification/reconciliation of at par account in May 2002, as is mentioned in paragraph no. 15 of the plaint. Learned counsel further referred to the paragraph no. 39 of the plaint to contend that an FIR dated 31.7.2002 had been filed against the defendants and as per own statement of the plaintiff-respondent, the defendant no. 1 was arrested by the CBI on 24.7.2003 and the Inquiry Officer had submitted his report on 30.11.2004. 15 of the plaint. Learned counsel further referred to the paragraph no. 39 of the plaint to contend that an FIR dated 31.7.2002 had been filed against the defendants and as per own statement of the plaintiff-respondent, the defendant no. 1 was arrested by the CBI on 24.7.2003 and the Inquiry Officer had submitted his report on 30.11.2004. Thus, the suit that was filed on 28.8.2008 was well beyond the limitation prescribed in view of the facts of the case. It is contended that the plaintiffs have wrongly mentioned in paragraph no. 50 of the plaint that the cause of action accrued on the final dismissal order dated 11.11.2005 being passed against the defendant-revisionist. This date, it is contended, has been purposely referred to in the plaint only to bring the suit within limitation. 7. Learned counsel for the revisionist has referred to the impugned order and stated that the court below has misquoted the counsel for the defendant-revisionist that the cause of action actually arose when the defendant-revisionist was dismissed from service and that date was 11.11.2005. The learned counsel has referred to Ground No.(i) in the memorandum of revision in this regard. It has been further stated that the court below has misdirected itself in not referring to the contents of the application filed by the defendant-revisionist under Order 7 Rule 11 CPC and has referred to only two dates mentioned in paragraph no. 50 of the plaint but has wrongly ascertained the date when the cause of action arose. It is contended that even if it is assumed without admitting that the learned counsel for the revisionist had submitted that the cause of action arose when the revisionist was dismissed on 11.11.2005, the court below was bound, in view of the provisions of Section 3 of the Limitation Act, to independently assess the averments in the plaint for purpose of ascertaining that the suit was within limitation. 8. Learned counsel for the revisionist, in support of his contentions, has referred to the judgements of the Supreme Court in the case of Mahabir Kishore and others Vs. State of Madhya Pradesh reported in MANU/SC/0051/1990, Kamlesh Babu and others Vs. Lajpat Rai Sharma and others reported in 2008 (3) AWC 2903 (SC), Raghwendra Saran Singh VS. Ram Prashnna Singh reported in MANU/SC/0367/2019 and the judgment of this Court in the matter of Satya Prakash Sharma Vs. State of Madhya Pradesh reported in MANU/SC/0051/1990, Kamlesh Babu and others Vs. Lajpat Rai Sharma and others reported in 2008 (3) AWC 2903 (SC), Raghwendra Saran Singh VS. Ram Prashnna Singh reported in MANU/SC/0367/2019 and the judgment of this Court in the matter of Satya Prakash Sharma Vs. Arif Khan and others reported in MANU/UP/3074/2009. Learned counsel has referred to the provisions of Section 17 of the Limitation Act, 1963 and Section 72 of the Indian Contract Act in support of his contention. It is contended that the matter for which the suit was filed pertains to some mistake allegedly committed by the defendant-revisionist and as such that would come within the provision of Section 17(1)(c) of the Limitation Act. It is stated that the fraud was discovered by the plaintiff and thereafter they lodged an FIR on 31.7.2002 and charge-sheet was filed by the Enquiry Officer on 24.6.2003. 9. Countering the aforesaid submissions made by the learned counsel for the defendant-revisionist, Shri Prabodh Gaur, learned counsel for the plaintiff-respondents stated that the issue no. 1 framed by the court below pursuant to an application under Order 7 Rule 11 CPC was not an issue that could be considered on the basis of a reading of the plaint alone. Learned counsel has contended that the matter would come under the provisions of Section 17(1)(a) of the Limitation Act. He contends that the point of time from which period of limitation begins to run is a question of fact which can be decided after evidence. He has referred to paragraph nos. 34 and 35 of the plaint to state that the defendants had admitted their guilt and liability before the authority concerned. He states that the process of generating cheques that were encashed was a complex process and therefore fraud cannot be detected easily. It is contended that the plaintiff is not natural person who can derive the knowledge instantly. It could only rely on due process which, in the facts and circumstances of the case, is the disciplinary enquiry which concluded by imposing the penalty of dismissal on the defendant-respondent on 11.11.2005. It is stated that the fraud was discovered after affording full opportunity given to the defendants during the enquiry proceedings, on conclusion of which it can be said that the discovery of fraud took place. It is stated that the fraud was discovered after affording full opportunity given to the defendants during the enquiry proceedings, on conclusion of which it can be said that the discovery of fraud took place. Moreover, it is stated that the defendants will not suffer any prejudice in case the suit continues. 10. Learned counsel for the parties have uniformly submitted that Article 113 of the Schedule to the Limitation Act, 1963 would be applicable in the facts of the case. 11. Section 17 of the Limitation Act is as follows: "17. Moreover, it is stated that the defendants will not suffer any prejudice in case the suit continues. 10. Learned counsel for the parties have uniformly submitted that Article 113 of the Schedule to the Limitation Act, 1963 would be applicable in the facts of the case. 11. Section 17 of the Limitation Act is as follows: "17. Effect of fraud or mistake.— (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,— (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which— (i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order: Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.” 12. A perusal of the entire plaint reveals that there is a guarded disclosure of dates pertaining to disciplinary proceedings initiated against the defendant-revisionist. In paragraph no. 17, it is stated that the Assistant Manager of UTI, Varanasi had stated during his examination after he had taken charge of at par account reconciliation of UTI, Varanasi from July 2001 onwards that he had noticed serious discrepancies. It is not stated that when did that examination of the Assistant Manager had taken place. In paragraph no.26 of the plaint, it is stated that in the first week of January 2002, it came to notice that several cheques were missing from the office. One Shri Kiran Vohra, the then Manager of UTI, Varanasi, during his visit to New Delhi in the last week of January 2002 and first week of February 2002, reported the matter of missing cheques to the Zonal Manager and Deputy Zonal Manager. On 25.2.2002 some important evidence was lost. In para 27 it is stated that the aforesaid facts conclusively establishes that the defendant no. 1 had deliberately concealed the loss of missing cheques from the zonal office. 13. In paragraph no. 35 of the plaint it has been stated that the defendant no. 2 had admitted his involvement in the fraudulent withdrawal and that due to heavy losses in the share market, he indulged in the fraudulent encashment of at par cheques. He is also alleged to have stated that the defendant no.1 the then Branch Manager was also involved in this matter. However, no date has been mentioned in the plaint that when the defendant no. 2 had admitted his involvement. In paragraph no. 37 it has been stated that the investigation revealed that the defendant no. He is also alleged to have stated that the defendant no.1 the then Branch Manager was also involved in this matter. However, no date has been mentioned in the plaint that when the defendant no. 2 had admitted his involvement. In paragraph no. 37 it has been stated that the investigation revealed that the defendant no. 1 deliberately tampered the paid file, misplaced/destroyed the paid cheques and fund commitment register and produced bogus reconciliation statement before the statutory auditor and deliberately not provided the necessary records and papers up to June 2001 either to the auditors or to the officers who had taken over the charge of at par reconciliation after July 2001. Again in this paragraph, no dates have been mentioned and no specifics have been stated that when did the investigation conclude. 14. In paragraph no. 39 of the plaint it is alleged that an FIR dated 31.7.2002 has been filed against the defendants and that the plaintiffs had served a charge-sheets on the defendant no. 1 and 2. The defendant no. 1 was arrested by CBI on 24.7.2003. It is stated that on 30.11.2004 the Enquiry Officer submitted his report which clearly implicated the defendant nos. 1 and 2 for defrauding the UTI for the aforesaid amounts. It is not mentioned in this paragraph that when did the plaintiffs serve the charge-sheet on the defendant nos. 1 and 2. 15. However, from perusal of para 39, a fact that emerges is that the plaintiffs had discovered the alleged fraud which led to the lodging of an FIR dated 31.7.2002 against the defendants. 16. The period of limitation of the suit aforesaid which is based on the alleged fraud of the defendant would not begin to run until the plaintiff discovered the fraud or the mistake or could, with reasonable diligence, have discovered it. The lodging of the FIR on 31.7.2002 is an acknowledgment by the plaintiff of having discovered the fraud. In the Wharton's Law Lexicon (16th Edition), the word 'Discover' is defined as follows: "Discover, means simply to find out, and applies to the discovery of an error in law and an error in fact. …......" 17. In the Concise Oxford English Dictionary (South Asia Edition, 12th Edition), the word 'Discover' has been defined as follows: "discover-v. 1 find unexpectedly or during a search. become aware of. …......" 17. In the Concise Oxford English Dictionary (South Asia Edition, 12th Edition), the word 'Discover' has been defined as follows: "discover-v. 1 find unexpectedly or during a search. become aware of. 2 be the first to find or observe (a place, substance, or scientific phenomenon)..............." 18. A perusal of the plaint reveals that the plaintiffs had become aware or rather, they found out that the alleged fraud did take place prior to the lodging of the FIR dated 31.07.2002. There are exhaustive references in the plaint that the investigations were done at various levels into the alleged fraud, which led to lodging of the FIR. Therefore, the FIR dated 31.07.2002 had been filed against the defendants on discovery of the fraud. Moreover, in paragraph no.39 of the plaint, it has been mentioned that the defendant-revisionist was arrested by the CBI on 24.07.2003. It has further been stated in that paragraph that the Enquiry Officer had submitted his report on 30.11.2004. Therefore, in respect of the aforesaid suit, the time from which the period of limitation would begin to run is 31.07.2002 that is the date of the FIR. 19. Article 113 appears in Part X of the First Division of the Schedule of the Limitation Act, 1963 is as follows: PART X-SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD Description of Suit Period of limitation Time from which period begins to run 113. Any suit for which no period of limitation is provided elsewhere in this Schedule. Three years When the right to sue accrues 20. The time from which the period begins to run would be when the right to sue accrues and this period would have to be seen with reference to Section 17 of the Limitation Act, that is to say, for purpose of this case, the point of time when the fraud was discovered by the plaintiffs that led to the lodging of the FIR dated 31.7.2002. Therefore, 31.7.2002 would be the date on which the right to sue accrued to the plaintiffs. 21. The bar of limitation appears in Section 3 of the Limitation Act, 1963 provides that although limitation has not been set up as a defence, subject to the provisions of Sections 4 to 24 (inclusive), every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed. 21. The bar of limitation appears in Section 3 of the Limitation Act, 1963 provides that although limitation has not been set up as a defence, subject to the provisions of Sections 4 to 24 (inclusive), every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed. Thus, the courts are enjoined to dismiss the suit if it is made after the prescribed period even though limitation is not set up as a defence. The court below has recorded a submission allegedly made by the learned counsel for the plaintiff-respondent that the cause of action in filing the suit would accrue on 11.11.2005. The learned counsel for the defendant-revisionist has emphatically stated that no such submission was made by the learned counsel for the plaintiff-respondents and has referred to Ground No.(i) made in the memorandum of revision and has contended that it was for the court below to have independently applied its mind with regard to the time from which the prescribed period of limitation would begin to run. 22. The contention of the learned counsel for the defendant-revisionist appears to be correct. When Section 3 of the Limitation Act itself provides for dismissal of suit instituted after the prescribed period although limitation has not been set up as a defence, the submission of the learned counsel for the defendant-revisionist before the court below, if at all made, would be, at the most, a submission made by a counsel on a point of law regarding the period of limitation, and the same would not be binding on the defendant-revisionist. 23. In the case of Panna Lal Jain Vs. Jain Bank of India Ltd. reported in AIR 1938 Lahore 368, the Court considered the case of appellant judgment debtor where his counsel had waived the objection regarding limitation. After considering the relevant provisions of the Limitation Act (as it then stood), while noticing the contention of the counsel for the respondent that the appellant's counsel having waived the objection as to the limitation and therefore, the appellant therein was estopped from raising the objection, the Court held that there is obviously no estoppel and counsel's admissions on a point of law are not binding. 24. The contention of the learned counsel for the plaintiff-respondents that the issue no. 24. The contention of the learned counsel for the plaintiff-respondents that the issue no. 1 framed by the court below was not an issue which could be considered on the basis of a reading of the plaint alone, is not correct. The starting point of limitation has to be found out by the Court itself as that is the mandate of Section 3 of the Limitation Act, and that entails careful perusal of the plaint given the fact that the matter was considered under Order 7 Rule 11(d) of CPC. The Supreme Court in the case of Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee & Ors. reported in AIR 1964 SC 1336 held as follows: “(9) 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. ” 25. The erroneous decision of the court below on the issue of limitation has led it to assume jurisdiction which it does not have in view of the facts of the present case. Hence this court in exercise of its revisional powers can interfere in that conclusions as held by the Supreme Court in the case of Manindra (supra). 26. The judgment in the matter of Raghwendra Sharan Singh (supra) provides that a suit can be dismissed under the provisions of Order 7 Rule 11 of the CPC, if the same is barred by limitation and can be deducible from a bare reading of the plaint. As observed above, a bare reading of the plaint itself reveals that the plaintiff-respondents had discovered the commission of fraud by the defendant-revisionist prior to the lodging of the FIR dated 30.07.2002. 27. As observed above, a bare reading of the plaint itself reveals that the plaintiff-respondents had discovered the commission of fraud by the defendant-revisionist prior to the lodging of the FIR dated 30.07.2002. 27. Of course, there may be instances where on a bare reading of the plaint it cannot be found out whether a suit, appeal, or application are liable to be dismissed and, a consideration of the entire pleadings and evidence may be required for that purpose. However, the present case is not such a case. Here the starting point of limitation is evident from a bare reading of the plaint. 28. Moreover, just because the defendant-revisionist has allegedly admitted his guilt and liability before the authorities concerned, without there being any reference in the plaint with regard to the date on which the guilt or liability was admitted by the defendant-revisionist, it cannot be said that the suit is within limitation. Reliance by the learned counsel for the plaintiff-respondents on the date of the imposition of the penalty of dismissal on the defendant-revisionist on 11.11.2005, as being the date on which the cause of action for the suit arose, is misplaced and is not consonance with the provisions of Section 17 of the Limitation Act as has been discussed hereinabove, particularly in view of the finding recorded above that the plaintiff-respondents had discovered the fraud prior to the lodging of the FIR dated 30.07.2002. 29. In view of the facts and circumstances stated hereinabove, the revision succeeds and is allowed. Accordingly, the impugned order dated 28.7.2012 passed by the court below is set aside and the issue no. 1 is decided in the affirmative. The plaint is, therefore, rejected. No order as to costs.