1 CRA NO.96/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.96/2010 1) Colgate-Palmolive (India) Ltd Colgate Palmolive Research Centre, Hiranandani Gardens, Main Road, Pawai, Mumbai – 400 076. 2) The Managing Director, Colgate Palmolive Research Centre, Hiranandani Gardens, Main Road, Pawai, Mumbai – 400 076. 3) The Vice President (Sales) Colgate Palmolive Research Centre, Hiranandani Gardens, Main Road, Pawai, Mumbai – 400 076. Applicants by their Authorized Signatory Ameya Joshi, Age: nil occu.Service, r/o as above. - APPLICANTS (orig.Defts.) VERSUS Rajendra s/o Vinayakrao Ayachit, Age:45 Yrs., occu. Business, (Prop.of M/s Raj Sales Corporation, Latur, r/o Signal Camp, Latur.) - RESPONDENT (orig.Plaintiff) ***** Mr.SP Deshmukh, Advocate for Applicants; Mr.CR Deshpande, Advocate for Respondent. ----- 2 CRA NO.96/2010 CORAM : K.U.CHANDIWAL, J. DATE : 17th NOVEMBER, 2011. ORAL JUDGMENT: 1) Heard. Rule. Rule made returnable forthwith. 2) The parties are referred as per their original status. The plaintiff filed a suit for settlement of accounts and recovery of amount being Special Civil Suit No.212/2008 before the learned Civil Judge, Senior Division, at Latur. An application, below Exhibit-14, in terms of Order VII Rule 11(a)(d) of CPC, was moved by the defendants, praying that the suit of the plaintiff to be rejected for the reasons stated in the application and basically on the ground that the suit is barred by limitation. 3) The learned Judge, on appreciating the facts and the documents on record, by order dated 4th February, 2010, rejected the said application, and hence the defendants (revision applicants herein) have preferred this civil revision application, questioning the said order of the learned trial Court. 4) The legal position, that has been canvassed by both the learned Counsel, needs to 3 CRA NO.96/2010 be put in a condensed form, as under - (a) The Law of Limitation is founded on public policy. The idea is, that every legal remedy must be kept alive for legislatively fixing the period of time ( 1998 7 SCC 123); (b) Clause (b) of Order VII Rule 11 of CPC speaks of suit, as it appears from the statement in the plaint, to be barred by any law; (c) The disputed questions cannot be decided at the time of considering the application filed under Order VII Rule 11 of CPC; (d) Clause (d) of Order VII applies in the cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute, shows that the suit is barred by any law in force; (e) The pleadings in the plaint are germane, pleas taken by the defendant, are wholly irrelevant at that stage ( Saleem Bhai and Ors. Vs. State of Maharashtra and Ors.- 2003 (2) Mah.L.J. 529); (f) The application for rejection of the 4 CRA NO.96/2010 plaint can be filed, if the allegations made in the plaint even if taken to its face value and taken to be correct in their entirety, appear to be barred by any law; (g) The question, as to whether a suit is barred by limitation or not, would, therefore, depend upon the facts and circumstances of each case (Popat and Kotecha Property Vs. State Bank of India Staff Association – (2005) 7 SCC 510 4) Now, in order to appreciate the plaint allegations, it is for the plaintiff to establish and indicate that the action contemplated by him gave him a cause of action to file a suit and his action was perfectly within limitation and not barred by any such law, to invite spectrum of Order VII Rule 11 sub-clause (d) CPC. 5) Para 6 of the plaint informs, that the settlement was arrived at the office of the defendant at Mumbai on 12.11.2002. The document of settlement indeed as per the pleading was 12.11.2002. The plaintiff accepted the amount towards the full and final settlement of the claim towards the defendant-company. He asserted in the plaint, that such settlement was under undue influence and misrepresentation and same is 5 CRA NO.96/2010 void and not binding on him. There wasno injunction against the plaintiff to make such assertions. However, the further part of the pleading provides other avenues in the matter. The stockistship of the plaintiff was terminated on 10th May, 2003, it was within the knowledge of the plaintiff, as could be seen in the notice of Mr.PT Dhage dated 18.6.2003. 6) Reading the plaint, as a whole, and after hearing both the learned Counsel for the parties, it is explicit that there was no business transaction between the plaintiff and the defendants after settlement of accounts and termination of the stockistship dated 12.11.2002 or 10.5.2003. 7) Having understood this position, let us revert to letter dated 24th January, 2005 tendered on 28th January, 2010 below Exhibit-45/1 by the plaintiff. The recitals in defendants' letter, for the purposes of present issue, are - "after setting-off the applicable invoice value against Rs.1,73,46,184.62, if there is any balance amount, please give us details of cheques/DDs, (date and amount), the reason for having issued those cheques/DDs, in whose favour those chques/DDs were issued and the encashment particulars of the same.” 6 CRA NO.96/2010 8) Reading this reply letter from any corner and angle, it does not save the limitation as the plaintiff desired before the learned Judge. It does not constitute acknowledgment of liability. The letter is inconsequential for the period of limitation. Again this letter is not forming a part of the plaint and the annexures, as the annexures are at Exhibit-4 and the letter dated 24.1.2005 is produced on 28th January, 2010. Curiously, in the plaint, there is no averment of such communication dated 24th January, 2005 to give effect of any saving of limitation in favour of the plaintiff. 9) The cause of action, referred in paragraph 10, reads as under, - “10. - The last date of cause of action is 8.12.2005 when the plaintiff received reply from the defendants." This informs that a legal notice was purportedly issued on 31.10.2005 to the defendants calling upon it to render and settle the amount and to pay amount due and outstanding from the defendant. The defendant replied the said notice on 3rd December, 2005 which was received by the plaintiff on 8th December, 2005.” 10) The legal position is, by issuance of notice or reply, it will not save the limitation, 7 CRA NO.96/2010 as the plaintiff desired in para 10 of the plaint. The plaintiff was consciously aware of the transaction between the parties were settled on 12.11.2002 and ultimately terminated in 2003, as clearly referred in the plaint. The plaintiff, as could be seen, had issued notice dated 16.6.2003 through Advocate PT Dhage calling upon the defendants to explain the anomalies and discrepancies and the defendants failed to comply the same. If this is again taken to be a cause of action, the plaintiff was required to take action within three years from 16.6.2003. However, the plaintiff has filed the suit on 1st December, 2008. 11) It was also contended that the law of Limitation is a mixed question of fact and law and for that purpose, Mr. Deshpande relied to the judgment in the matter of C.Natrajan Vs. Ashim Bhai and Anr. - (2007) 14 SCC 183 (Date of decision 11.10.2007). In the said case, the Apex Court referred to the facts, in particular, and informed, framing of an issue of limitation and taking of evidence was imperative. This judgment would not be applicable to the facts of the present case, as reading the pleading as a whole, as referred herein before, the plaintiff did not deal with and answer the point of limitation to bring the suit within the said frame. 8 CRA NO.96/2010 12) The overall survey, reading plaint and annexures, illustrate the claims between the parties are settled in the year 2002 or at the most in the year 2003(on 10th May, 2003). Consequently, the suit should have been filed lastly up to 12th November, 2005. The provisions of Order VIII Rule (a) to (d) CPC are in the field to put an end and to prohibit the claims which are barred by law. The plaintiff had no cause of action on the date of suit. 13) Taking these aspects into consideration, the application below Exhibit-14 moved by the defendant ought to have been allowed. Consequently, the Civil Revision Application is allowed. 14) The order is stayed up to 9th January, 2012, on the statement of Mr.Deshpande, that the plaintiff will not till then make any progress in the suit proceedings, is accepted. sd/- (K.U.CHANDIWAL) JUDGE bdv/