[CASE NUMBER] [ENTITY] CIVILAPPLICATION(OJ)NO.1of2018 IN R/ADMIRALITYSUITNO.12of2018
[ENTITY] Versus [ENTITY] Appearance:
MRASVAKILforthePETITIONER(s)No. MR [ENTITY], SENIOR ADVOCATE ASSISTED BY MS PAURAMIBSHETHfortheRESPONDENT(s)No. CORAM:HONOURABLEMR.JUSTICE[ENTITY] Date:03/05/2018 IAORDER
1. Bywayofthisapplication,theapplicantwhois original defendant has prayed for rejection of theplaintunderOrder7Rule11(a)(d)ofthe [ACT] and has also prayedforcostinfavouroftheapplicant.
2. Thepartiesaredescribedaspertheirposition intheoriginalsuit.
3. Theplaintiffhaspreferredthepresentsuitfor followingclaims Sr. Particulars Amount(In No. USD)
1. PrincipalAmountdueas 975,600 pertheinvoice [CASE NUMBER]
2. Interest 326,965
3. LegalCosts 20,000 TotalAmountReceivable 1,322,565 UnitedStatesDollarsOneMillionThreeHundred TwentyTwoThousandFiveHundredSixtyFive only.
ADD:5%interestperannumonprincipalclaim of USD 975,600 from the date of the present suittillitspaymentand/orrealization.
4. This Court by an order dated 06.04.2018 passed anorderofarrest ofthedefendantvessel and the present application is filed as indicated hereinabove, for rejection of the plaint as provided under [SECTION] of the [ACT].
5. HeardMr.[ENTITY],learnedadvocateforthe applicantdefendant and Mr. [ENTITY], learnedsenioradvocateassistedbyMs.[ENTITY].
6. Mr. [ENTITY], learned counsel appearing for the defendanthascontendedasunder
1) That as stated in the plaint, the plaintiff companyisincorporatedunderlawsofBritish Virgin Islands. Mr. [ENTITY], learned counsel forthedefendanthasfurthertakenthisCourt throughtheavermentsmadeintheplaint,more particularlyparas3,6,7,10,11and24.
2) Mr. [ENTITY] contended that in para 3 of the plaint, the plaintiff has mentioned that the [CASE NUMBER] plaintiff provided bunkers to the vessel [ENTITY]li formerlyknown [ENTITY]. It was pointed out that as stated in para 3 of the plaint, it is the case of the plaintiff thatthesaidvesselwassupplied bunkers at the request of the said vessel through the Allied Maritime INC, who were authorised representatives of erstwhile owners of the vessel,i.e.,CitrusShippingCorp.Mr.[ENTITY] contended that the plaintiff has stated that thevesselhas undergonechangeinnameand ownership with a sole aim to defeat plaintiff's claim and claims of other identicallysituatedcreditors.
3) It was further contended that as averred in para6oftheplaint,itisclearlymentioned by the plaintiff that the bunkers were supplied as per the contract on or around 18.01.2012.
4) Mr. [ENTITY] further pointed out the averments made in para 7 of the plaint and contended that the plaintiff has relied upon three clauses pertaining to lien, arbitration and applicable law as provided in the contract which is also annexed at AnnexureD to the suit.
5) Mr.[ENTITY] the plaint, the plaintiff has clearly mentioned that on 29.02.2012, the erstwhile [CASE NUMBER] ownersofthevesselacknowledgedandadmitted the outstanding amount for supply of bunkers tothedefendantvessel.
6) Mr. [ENTITY], referring to the emails dated 29.03.2012atExhibitFtothesuitcontended thataspertherecordasitstandstoday,the lastdateofacknowledgmentis29.03.2012and also referred to the earlier correspondences which is on record dated 27.03.2012, 07.03.2012, 07.03.2012, 01.03.2012, 29.02.2012.
7) Mr. [ENTITY] contended that plaint is ex facie timebarred.Mr.[ENTITY]contendedthatwhenthe order dated 06.04.2018 was passed by this Court,itwasnotbroughttothenoticethat the cause of action even as stated in the plaint has arisen in the year 2012 and therefore,thesuitisbarredbylimitation.
8) Mr. [ENTITY] further contended that as provided undersection11oftheLimitationAct,1963, (hereinafter referred to as "[ACT]"
forthesakeofbrevity), [ACT], i.e.,thecountry oftheforumwouldapplyontheapplicability oftheprinciples oflexforiandtherefore, it was contended that as provided under [SECTION] to the [ACT], the limitation as provided under the [ACT] would be 3 years. Mr. [ENTITY] [CASE NUMBER] contended that as the last acknowledgment is dated 29.03.2012andhence,thesuitistime barred.
9) Mr. [ENTITY] has relied upon the following judgments
1. [PRECEDENT]
2. R.A. Dickie & C. (Agencies) Ltd. vs. The Municipal Board, Benares & Anr., AIR1956Cal216
3. Rm.Ar.Ar.Rm.Ar. [PRECEDENT] Relyingontheaforesaidjudgements,itwas contended that as per the applicability of [SECTION] of the [ACT], which wouldapply,thesuitistimebarred.
10) Mr. [ENTITY] contended that even if the contention raised in plaint is examined and evenasstatedinpara24inparticular,even if [ACT] is applied, the present suit is filed on 06.04.2018 and the last acknowledgment is dated 29.03.2012 and therefore also the last date available under English law would be 28.03.2018 and therefore,admittedly,theplaintisexfacie timebarred.
11) Referringtothecontentionsraisedinpara 24,para2aswellpara4oftheplaint, it [CASE NUMBER] wascontendedthatthereisnomentionofthe applicability of the [ACT] and only for the first time, in reply to the present application,theplaintiffhastriedtoputa new case by referring to [SECTION] of the Act,whichisdiagonallyopposite towhatis statedinthesuit.
12) ItwasfurthercontendedbyMr.[ENTITY] merecleverdraftingwouldnotgivelimitation to the suit and the plaintiff has merely statedfraudwithoutanybasiswhichhasbeen considered as main reason for passing the order of arrest even by this Court as is evident from para 2 of the order dated 06.04.2018.
13) Mr.[ENTITY]hascontendedthatasprovidedin Order7Order7Rule11(a)(d),thisCourtcan lookintosuchissueatthethresholdandnip thebudandhastolookonlyattheplaintand thedocuments.However,itwascontendedthat while deciding the application under [SECTION], the Court should not look to the averments made in the reply or written statement andtheavermentsaremadewithan attempttoimprove,whichisnotpermissible.
Mr.[ENTITY] has relied upon the following judgmentstobuttresshisargument
1) [PRECEDENT] - [PRECEDENT]
[CASE NUMBER]
2) (1998) 2 SCC 70 - [PRECEDENT]
3) [PRECEDENT] - [PRECEDENT]
4) (2004)3SCC137 [PRECEDENT].
5) [PRECEDENT]
Referring to the aforesaid judgments, it was contended by Mr. [ENTITY] that in facts of the case,thesuitisexfacietimebarred.
14) On the aforesaid ground, it was contended byMr.[ENTITY] barred.Itwascontendedthatplaintiffwhile approachingthisCourthasstated inpara24 of the plaint that they are governed by [ACT] and even if that is considered,thesuitisbeyondtheperiodof6 yearsasprovidedundersection5ofthesaid Act. Mr. [ENTITY] contended that as such, the suit is governed by [SECTION] of the [ACT] for3 yearsandtherefore,thesuitistimebarred.
15) It was contended by Mr. [ENTITY] that effort oftheplaintiffintheplainttosaythatthe change of ownership is to deprive the plaintifffromrecoveryofitsmaritimeclaim, [CASE NUMBER] ifreadclosely,thesamewouldnotsavethe limitation. Itwascontendedthatitisnot stated intheplaintaboutalleged fraudand [ACT] and for the first time it is pleaded in reply to the present application. It was furthercontendedthatavermentsoffraudare madeincontextofthechangeofownershipand submissions were focused on maritime claim aloneandnotLimitationActandthepleaof [SECTION] of the [ACT] is not averredintheplaint.
7. On the aforesaid grounds, it was contended by Mr. [ENTITY] that the application deserves to be allowedandthesuitdeservestoberejectedas thesameisexfacietimebarred.
8. Per contra, Mr. [ENTITY], learned senior counsel appearing for the plaintiff contended thattheapplicationisnotmaintainableandis liabletobedismissed.ItwascontendedbyMr. [ENTITY] that the question of limitation is mixed question of law and fact and till the evidence is led, such determination is not possible.
9. Referringtocontentsofpara24oftheplaint, it was contended by Mr. [ENTITY] that the bunkers were supplied as per the contract and parties had agreed to be governed by law of England.Itwasfurthercontendedthatexclusion [CASE NUMBER] of any other law is clearly provided and the parties have voluntarily chosen to the law of England and there is an express agreement between the parties and more particularly as provided under clause 22 (1) of the contract. It was further contended that whether the limitationactofEnglandwouldapplyorIndian [ACT] would apply is a question which requires to be determined after leading of evidence.
10. It was contended by Mr. [ENTITY] that the judgmentsrelieduponbythelearnedcounselfor the defendant to canvass the argument of lex foriarenotapplicableandthesamewouldalso requireleadingofevidence.Itwascontendedby Mr.[ENTITY]thatneitherpartiesareresidents ofIndiaandassuch,bothofthemareresident of foreign country. Referring to the Equasis reportwhichisonrecord,itwascontendedthat theyarenotlocatedinIndiaandsuchafactor would be a fact and law and could not be adjudicated at this stage. It was further submitted that the judgment of the Madras High CourtinthecaseofMuthukakniMudaliar(supra) is in context with [SECTION] of the old limitation actandthesamewould notapplyto thecaseonhand.Itwasalsosubmittedthatthe judgmentsofCalcuttaHighCourtinthecaseof RA. Dickie and Co. (Agencies) Ltd. (supra) and MadrasHighCourtinthecaseofRm.Ar.Ar.Rm.Ar.
[CASE NUMBER] RamanathanChettiar(supra)alsodealwithother aspect of special law of limitation and its impactofsavingclauseandthejudgmentofthe Madras High Court is in relation to the exclusion of time. Mr. [ENTITY] contended that therefore,inthefactsofthiscase,itisnot correct to state that English law would not applyanditisamixedquestionoflawandfact which can be determined only at the time of trial.
11. Mr. [ENTITY] in order to further buttress his argument on the aspect that it is a mixed question of law and fact and evidence is required and has relied upon the judgments in [PRECEDENT], [PRECEDENT], [PRECEDENT]. Reported in [PRECEDENT] by Mr. [ENTITY] that the said aspects are requiredtobetriedandexfacieitcannotbe saidthatthesuitisbarred.
12. Itwascontendedthattheplaintiffhaspleaded fraud in the reply to the present application andthedateofknowledgeoffraudisamatter [CASE NUMBER] ofevidenceandtoday,itcannotbesaidthatit isbarredbylimitationanditwillhavetobe triedandcannotbedecidedinthisapplication.
13. On the aforesaid grounds therefore, it was contended by Mr. [ENTITY] that the application deservestobedismissedandthesuitcannotbe termed as having being filed beyond the period oflimitation.
14. Mr. [ENTITY], learned counsel appearing for the defendant in further arguments referred to thejudgmentsoftheApexCourtinthecaseof N.V. Srinivasa Kurthy and Ors. Vs. Mariyamma (Dead) by proposed Lrs. and Ors. reported in (2005)5SCC548and[ENTITY]andKotechaProperty vs. State Bank of lndia Staff Association reportedin(2005)7SCC510andsubmittedthat the aforesaid two judgments are referred and relieduponbytheApexCourtinthejudgmentof [ACT]). Mr. [ENTITY] contended that in the judgment of [ENTITY] and Kotecha Property (supra), considering the facts of that case, the Hon'ble Supreme Court has come to the conclusion that the plaint is notliabletoberejected.
15. Mr.[ENTITY]furtherreferringtopara7,14,16,16 and19ofthejudgmentoftheApexCourtinthe case of [ENTITY] (supra) contended that it is apparent from the reading of the said judgment that the same is on demurrer. It was [CASE NUMBER] however further contended that it becomes apparent from reading that the plaint can be rejected and on the contrary, the Hon'ble SupremeCourt hasobserved thatitcanbedone if it is apparent. Mr. [ENTITY] further contended thateventhejudgmentoftheApexCourtinthe case of Satti Paradesi Samadhi and Pillayar Temple (supra) is on facts of this case. Relyinguponthejudgment ofthisCourtinthe case of [PRECEDENT] [ENTITY] reportedin2007(2)GLR921,itwascontended by Mr. [ENTITY] that this Court has taken a view thattheplaintcanberejectedonthegroundof limitation.
16. Mr. [ENTITY] further contended that for the first time in reply to the application in para 3, allegationoffraudismade,however,itisnot shown that how [SECTION] would apply and the same is not in support of limitation. It was contendedbyMr.[ENTITY]intheentireplaint fraud is not pleaded and even in the cause of action,itisnotstatedbytheplaintiff that it has arisen because of fraud. Referring to contents of the plaint and more particularly para24,itwascontendedbyMr.[ENTITY] isspecificallypleadedthatthecauseofaction hasarosein2012.Itwasreiteratedthatinthe entire plaint fraud is not pleaded and therefore, the contention of fraud cannot be acceptedascorrectandinlaw,theplaint can [CASE NUMBER] berejected.Mr.[ENTITY]furthercontendedthatin the whole suit and more particularly in the cause of action, fraud is not alleged. It was contended that in the plaint the case of the plaintiff is that the vessel has undergone changeinnameandownershipwithasoleaimto defeattheplaintiff'sclaimandclaimsofother identicallysituatedcreditorsandthatthesaid registered owners of vessel are alteregos and has only stated that only incorporated with an intention to defraud their creditors, however, inthecauseofaction,nofraudisallegedand the cause is nonpayment of price of bunkers suppliedtothevessel.ItwascontendedbyMr. [ENTITY] that it is not alleged discovery of alleged fraud which has given cause to the plaintiff tofilethissuitandintheplaint, thereisnomentionoffraud.Itwasallegedby Mr. [ENTITY] that in para 24 of the plaint, the plaintiff could have pleaded fraud, further by clever drafting clear and apparent attempt is madetoimprovise thecasewhichnowcannotbe done and it is apparent from the plaint that fraud is not the cause of action. It was therefore contended that in the entire suit, there is no plea of fraud and therefore, the contention that same requires evidence to be adduced is not sustainable and cannot be accepted.Itwascontendedthatnopartofcause ofaction isbasedonfraud,however, incause of action, it is clearly stated that same has [CASE NUMBER] arisenin2012.
17. Mr. [ENTITY] further contended that even if the questionwhichlawwouldbeapplied,evenifit is considered that the English law would apply accordingtotheversionoftheplaintiffinthe plaint,evenifitistakenasitis,theperiod of 6 years would expire on 28.03.2018, whereas theplaintisfiledon06.04.2018andtherefore, ex facie, the suit is beyond the time of limitation. It was contended that there is no further acknowledgment and therefore, even assumingthatEnglishlawwouldapply,thesuit is time barred. Mr. [ENTITY] has further relied uponthejudgmentoftheApexCourtinthecase ofAlconElectronicsPvt.Ltdvs.CelemS.A.of FIS 34320 Roujan, France & Ors. reported in (2017) 2 SCC 253, [ENTITY] & Ors. vs. S.V.V. Somiah & Ors. reported in AIR 1964 SC 227, [PRECEDENT] and [PRECEDENT] to buttresshisargument.
18. It was contended by Mr. [ENTITY] that solely relying upon the averments made in the plaint, none of the three submissions advanced by the plaintiffmaketheplaintwithinlimitation.It [CASE NUMBER] wascontendedthatitisnotthateverycasehas tocomefortrial,however,exfacie,itcanbe verywellconcludedthatsuitisbeyondtimein thepresentcaseandthesamecanberejectedas prayed.Ontheaforesaid,itwascontendedthat theapplicationdeservestobeallowedasprayed for.
19. No other or further submissions were made by learnedcounselappearingfortheparties.
20. Before considering the submissions made by the learned counsel appearing for the parties, it would be appropriate to refer to the relevant contentionsandsubmissionsmadeintheplaint, whichareessentialtobenotedfordecidingthe presentcontroversy "3. The Plaintiff's entitlement to the outstanding sums arise by reason of the Plaintiff having provided bunkers to the [CASE NUMBER] MV MariePaule). The said vessel was suppliedbunkersattherequestofthesaid vessel through Allied Maritime INC, who were authorized representatives of erstwhile ownersofthevessel i.e.Citrus Shipping Corp. Thereafter, to defeat the claimofthePlaintiff,thevesselhasbeen changedthenameandownershiptwice:
a. [ENTITY], during February 2014 registered owner of the vessel was Ermis TradingSA.
b. [ENTITY]/i, since December 2015 registered owner of the vessel is [ENTITY] ShippingLP.
[CASE NUMBER] It is submitted that the vessel has undergonechangeinnameandownershipwith sole aim to defeat plaintiff's claim and claims of other identically situated creditors. The said registered owners of the vessel are alteregos and enjoy identity and commonality of interest and functional integrity with each other, and are in law and effect, one entity, only incorporated with an intention to defraud their creditors. The same is evident from the Equasis Report. It is submitted that even otherwise the Vessel [ENTITY]li (IMO No.9438016)(exnameMVMariePaule)isin rem responsible for the outstanding paymentsoftheplaintifftowardssupplyof bunkers which were used by her during her voyages.
"10. The Plaintiff submits that all the transaction documents read along with the General Terms and Conditions of Supply together constitute the agreement between the Plaintiff and the Vessel [ENTITY] (IMONo.9438016)(exnameMVMariePaula) and/or master and/or owners and/or charterersandormanagersand/oroperators and/oranyoneauthorizedbytheowners.
11. On 29th February 2012, the erstwhile owners of the vessel acknowledged and admitted the outstanding amount for the supply madeandassuredthePlaintiff that the payments will be shortly made. They also informed the Plaintiff that due to financial difficulties the company was unable to pay the outstanding. A copy of the email trail dated 29the February 2012 till29thMarch2012isproducedherewith.
24. No part of the cause of action is barredbylimitationasthecauseofaction arosein2012,whentheinvoiceforsupply of bunkers fell due. The Plaintiff's General Terms and Conditions for sale of [CASE NUMBER] theMaritimeFuelprovides thatthesupply was governed by English Law. The [ACT], [SECTION] provides that"Anactionfoundedonsimple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued". Under the law governing the terms of supply, the Plaintiff is entitled to proceed against theDefendantVessel."
21. In view of the aforesaid submissions and contentions raised in the plaint, which is the basecaseoftheplaintiff,itisevident that in para 3 of the plaint, it is averred by the plaintiffthatthedefendantvesselwassupplied bunkers at the request of the said vessel through its authorized representatives and in ordertodefeattheclaimoftheplaintiff,the vesselhasundergonechangeofownershiptwice. Itisalsoevidentfromthecontentionraisedin para 10 of the plaint as well as taking into considerationotheravermentsmadeintheplaint thattheclaimwhichismadeinthepresentsuit is based on the supply of bunkers to the defendantvesselongeneraltermsandconditions of supply more particularly as averred in para 10oftheplaint.Relyingupontheemaildated 29.03.2012,theplaintiffhascontendedthatthe erstwhileownersofthevesselhaveacknowledged and admitted the outstanding amount for supply madeandassuredtheplaintiffthatthepayments will be shortly made. The said categorical statement made in para 11 of the plaint [CASE NUMBER] thereforeclearlyestablishesthefactthatthe last date of acknowledgment of the dues by erstwhileownersisdated29.03.2012. Thereis nothingintheplaint aswellasthedocuments to show that any subsequent acknowledgment is made by the erstwhile owners of the defendant vessel. Therefore, the last date of reckoning to determine the limitation aspect would be 29.03.2012. Even in para 24 of the plaint, while describing the cause of action, the plaintiffhasbaseditsclaimthatthecauseof action arosein2012, whichcansafely beread as 29.03.2012 as on the said date, last acknowledgmentwasmadebytheerstwhileowners andthecauseofactionhasarisenonthebasis oftheinvoiceforsupplyofbunkerswhichfell due.Therefore,evenifitisconsideredthat as both the parties are foreign parties and keepingaside theaspectoflexforiasargued byMr.[ENTITY],learnedcounselforthedefendant and applying [ACT], as averredinpara24oftheplaint,theperiodof limitationis6years.
22. The plaint, if read as it is, as observed hereinabove,theacknowledgmentofdebtmadeby erstwhile owners was lastly on 29.03.2012 and even the document which is referred to at Exhibit F also clearly establishes the fact of such acknowledgment. Even if 29.03.2012 is taken into consideration as the last date of [CASE NUMBER] reckoning for determining the period of limitation,theperiodof6yearsasper[SECTION] of the [ACT], would expire on 28.03.2018. Admittedly, the plaint was registered before this Court on 06.04.2018 andtherefore,itisbeyond28.03.2018andthus, beyondtheperiodoflimitationprescribedeven under [SECTION] of the [ACT]. The aforesaid conclusion can be culled out merelybybarereadingoftheavermentsmadeby the plaintiff in the plaint itself and therefore, the suit is time barred as rightly averredbythedefendant.
23. In [ENTITY] (supra), the Hon'ble Apex Court has considered the plea of demurrer is raised by the contesting respondent. While referring totheprovisionsofOrder7Rule11 of the [ACT] and more particularly clause (d) thereof, the Hon'ble ApexCourthasobservedthus "14.TheprincipleunderlyingClause(d)of OrderVIIRule11isnodifferent.Wewill refer here to a recent decision of this Court rendered in [ENTITY] and Kotecha Property vs. State Bank of India Staff Association (2005) 7 SCC 510 where it was heldasunderinpara10ofthereport: "[SECTION] speaks of suit, as appears from the statementintheplainttobebarredby any law. Disputed questions cannot be decided at the time of considering an applicationfiledunderOrder7Rule11 [CASE NUMBER] [SECTION] in those cases only where the statementmadebytheplaintiffinthe plaint, without any doubt or dispute shows that the suit is barred by any lawinforce."
16. It was emphasized in para 25 of the reports that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of [SECTION] [ACT]. The principle is, therefore, well settled that in order to examine whether the plaint is barredbyanylaw,ascontemplatedbysub [SECTION] [ACT], the avermentsmadeintheplaintalonehaveto beseenandtheyhavetobeassumed tobe correct.Itisnotpermissibletolookinto the pleas raised in the written statement or to any piece of evidence. Applying the said principle, the plea raised by the contesting respondents that the Company Petitionwasbarredbylimitationhastobe examinedbylookingintotheavermentsmade in the Company Petition alone and any affidavit filed in reply to the Company Petition or the contents of the affidavit filedinsupportofCompanyApplicationNo. 113 of 1995 filed by the respondents seeking dismissal of the Company Petition cannotatallbelookedinto.
15. Paragraphs 14 and 21 of the Company Petitionreadasunder: "14. Even the action on the part of respondent Nos. 2 and 3 to use company's funds would amount to fraud on the statute. They have clearly played fraud onSection 77ofthe Act and it is also settled law that the partywhohascommittedfraudcouldnot beallowedtoretainthefruitsofthe fraudulent action perpetrated bythem.
[CASE NUMBER] Onthisprinciplealsostatusquoante should be restored so that respondent Nos.2and3donotgetbenefitofthe fraudplayeduponthestatute."
"21. The petitioners further say that though the share transfers were effected in the year 1982, the petitionerscouldnothavedetectedthe fraud earlier, but they came to know about the fraud in detail when the specific criminal complaint was filed bysomeinterestedpersons,theoffice bearers of the Union of the Company beforetheCriminalCourtatNaroland they came to know by or about in the monthofMay,1987.Heretoannexedand marked Annexure I is the copy of the said complaint. Thereafter they enquiredintothematterandcollected whateveradditionalmaterialavailable. Petition No. 1 gave notice dated 14.6.1987.However,respondents2to11 wastedtoomuchtimeincorrespondence and thereafter this petition is filed immediately."
19.Apleaoflimitationcannotbedecided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in [SECTION] [ACT] would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which [ENTITY] [CASE NUMBER] ([PRECEDENT] decided on8.11.2005 and itwasheld: "8. After hearing counsel for the [CASE NUMBER] parties, going through the plaint, application under [SECTION] [ACT] and the judgments of the trial courtandtheHighCourt,weareofthe opinionthatthepresentsuitcouldnot be dismissed as barred by limitation withoutproperpleadings,framingofan issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the readingofthepaintitcannotbeheld thatthesuitisbarredbytime."
This principle would be equally applicable toaCompanyPetition.Therefore,unlessit becomes apparent from the reading of the CompanyPetitionthatthesameisbarredby limitation the petition cannot be rejected [SECTION]"
24. However, considering the facts of the case on hand, as observed hereinabove, on examining whether the plaint is barred by any law sic. limitation law, even if the averments made in the plaint alone are seen and assumed to be correct, then even at the stage of application [SECTION],itcanbeheld thattheplaintisbarredbylimitationasitis apparentfromthebarereadingoftheaverments made in the plaint in the case on hand as observedhereinabove. Therefore,evenapplying the ratio laid down by the Apex Court in the case of [ENTITY] (supra), the present suitisbarred bylimitation. Eveninthecase ofBalasariaConstructions(P)Ltd.(supra),the SupremeCourthasconsideredtheaspectofOrder [CASE NUMBER] 7Rule11quathelimitationonthefactsofthe saidcase.
25. Even as held by the Apex Court in the case of [PRECEDENT] under [SECTION] of [ACT] if conditionsenumeratedinthesaidprovisionare fulfilled.TheApexCourthasobservedthus "7. TheplaintcanberejectedunderOrder VIIRule11ifconditionsenumeratedinthe said provision are fulfilled. It is needless to observe that the power under OrderVIIRule11,[ACT]canbeexercisedby the Court at any stage of the suit. The relevantfactswhichneedtobelookedinto for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, thecourtshouldexercisepowerunderOrder VIIRule11,[ACT].Sincethepowerconferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under [SECTION] of [ACT] to the exercise of power of rejection of plainthavetobestrictlyadheredto.The avermentsoftheplainthavetobereadas a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless toobservethatthequestionastowhether thesuitisbarredbyanylaw,wouldalways depend uponthefacts andcircumstancesof each case. The averments in the written statementaswellasthecontentionsofthe defendant are wholly immaterial while consideringtheprayerofthedefendantfor rejection of the plaint. Even when, the [CASE NUMBER] allegationsmadeintheplaintaretakento becorrectasawholeontheirfacevalue, iftheyshowthatthesuitisbarredbyany law, or do not disclose cause of action, theapplicationforrejectionofplaintcan be entertained and the power under [SECTION] of [ACT] can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliestsothatboguslitigation willend attheearlierstage."
26. Itwouldbeappropriatetorefertothejudgment of this court in the case of [ENTITY] v. Nanduben Shamjibhai Sorathiya through [PRECEDENT]. This Court while considering the plea of [SECTION], relyinguponthejudgment oftheApexCourtin [PRECEDENT] (Dead)byproposedL.Rs.ReportedinAIR2005SC 2897 as well as decision of Apex Court in the case of [PRECEDENT] has clearly held that considering the averments in the plaint, it is found that the suit is time barred and the plaintandthesuitcanberejectedinexercise ofpowerunderorder7Rule11ofthe[ACT].
27. Thecontentionraisedbythelearnedcounselfor the plaintiff that limitation is a mixed questionoflawandfactandasrelieduponthe ratiolaiddownbytheApexCourtinthecaseof [CASE NUMBER] Satti Paradesi Samadhi and Pillayar Temple (supra) are on different factual matrix. Considering the ratio laid down by the Apex CourtinthecaseofBalasariaconstructions(P) Ltd.(supra), whichinfactisreferredtoand relied upon by the Apex Court in the later judgmentofRameshB.Desai(supra),thereisno absolutebarinconsideringanapplicationunder Order7Rule11andiftheplaintitselfclearly establishesthefactasaverredbytheplaintiff thatthesuitisbarredbylimitation,theplea oftheothersideunderOrder7Rule11(a)(d0 can be considered and allowed by this Court. However, if it is apparent from the plaint itself, as in the case on hand, the suit is filed after expiry of 6 years even if [ACT] is applied, such plea can be considered as without referring to any other aspect,fromtheplaintitself,itcanbeculled out that the plaint is registered and suit is filedafteraperiodofsixyears. ThisCourt in the case of [PRECEDENT] [ENTITY] reported in 2007(2) GLR 921, has clearlyheldthatwhenitappearsfromthevery pleadingsforundisputedfactsfromtheplaint, theplaintcanberejectedevenatthepretrial stage.
28. Even in the judgment of the Apex Court in the case of [ENTITY] & Ors. (supra),itisclearlyheldthatlimitationisa [CASE NUMBER] rule of procedure and the same cannot be extended by any analogy or reference to the proceedings.Evenatthecostofrepetition,it deservestobenotedthatevenifthelastdate, i.e., 29.03.2012 is taken into reckoning, the period of limitation even as per the agreement of applicability of [ACT] between the plaintiff and the erstwhile owners would expire on 28.03.2018. Reading of the averments in the plaint, it is an admitted position that no fraud is alleged. For the firsttime,inreplytothepresentapplication, in para 4(a), it is averred by the plaintiff that [SECTION] of the [ACT] would apply, however, no such fraud is pleadedinthesuitandasrightlycontendedby Mr.[ENTITY],thesuitisbasedontheinvoiceof bunker supplied by the plaintiff to the erstwhile owners and the suit claim is also based on the invoice of the bunker dated 02.03.2012. Even while describing and stating cause of action, in para 24 of the plaint, it clearlytranspiresthatthesuitisbasedonthe invoiceforsupply ofbunkers felldueandthe cause of action arose in 2012. Thus, taking intoconsiderationtheplaintasitis,thereis noallegationoffraudatall.Ononehand,the plaintiffhascontendedthatEnglish[ACT]wouldapplyandinreplytotheapplication, theyhaveresorted to[SECTION]ofthe[ACT]. Such plea cannot be [CASE NUMBER] raised in a reply to the present application filedbytheplaintiff.
29. Considering the factual matrix of the case on hand,fromtheplaint,itcanbeculledoutthat the last acknowledgment of the erstwhile owner is dated 29.03.2012 and the present suit is filed on 06.04.2018 and even by applying the EnglishLimitationlaw,thesuitistimebarred andtherefore,thepresentplaintdeservestobe [SECTION].
30. In light of the aforesaid therefore, from the facts as stated in the plaint itself, it can conclusively be established that the suit is barred by limitation. On the contrary, the facts of this case clearly borne out that the suit is barred by limitation even as per the avermentsmadeinpara11and24oftheplaint and mere clever drafting would not give limitation to the suit. Merely by making general statement that the ownership was transferred with an intention to defraud their creditors, is without any basis and it is rightly contended on behalf of the defendant that clever drafting would not give limitation tothesuit.
31. In facts of this case therefore, even the contention raised by the plaintiff that limitationbeingmixedquestionoflawandfact ineverycasecanbedecidedonlyafterevidence [CASE NUMBER] isadduced. However,asheldbythisCourtin [ENTITY] (supra), if from the averments of plaint itself, it can be establishedthatthesuitisbeyondthetimeof limitation,itcanbenippedinthebudandthe suitcanberejectedunderorder7Rule11and suchfactsdoesariseinthecaseonhand.
32. Mr. [ENTITY], learned counsel appearing for the plaintiffaswellasthelearnedcounselforthe parties have also raised contentions on the basis that as both the parties are foreign parties and that the present suit is filed in India and as per the principles of lex fori, [ACT] would apply, however, in view of the aforesaid findings, it isnotnecessarytodevolveanyfurtheronthe principles of lex fori as even otherwise, by application of provisions of English Law as agreed by the parties, i.e., the plaintiff and the erstwhile owners, the suit is beyond the periodof6yearsandistimebarred. Inview of the aforesaid therefore, the judgments referred to and relied upon above by the plaintiff and defendant on the said aspect are notnecessarytobedealtwith.
33. In view of the above, the application is allowed. The suit is held to be barred by limitation and the same therefore is liable to berejectedunder order7Rule11(a)(d)ofthe [CASE NUMBER] [ACT]. Resultantly, the order of arrest also standsvacated.Nocosts.
([ENTITY],J) bjoy FURTHERORDER After the order is pronounced, Ms. [ENTITY],learnedadvocatepraysforstayofthisorder toenablehertochallengethisorder. Thesameis opposed by learned advocate Mr. [ENTITY]. However,infactsofthiscase,thisorderisstayed till11.05.2018.
([ENTITY],J) bjoy