1 SNS IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.202 OF 2009 Parasram M. Hasani ...Applicant. v. Jairam Chhatmal Sidwani ...Respondent. Mr.P.R.Arjunwadkar, adv. for the Applicant. Mr. Dnyaneshwar Deshmukh, adv. for the respondent. CORAM : J.H.Bhatia, J. DATE : 29th September, 2010 P.C.: 1 Heard the learned counsel for the parties. 2 To state in brief, the respondent/plaintiff had agreed to purchase certain shop situated at Ulhasnagar from the defendant/revision applicant for consideration of Rs.48 lac on 15.5.2001. It was oral agreement. On the same day, he paid Rs. 51,000/- to the defendant without obtaining any receipt or any other written document. Respondent/plaintiff being the businessman, he believed his words and went on making the payments from time to time. According to him, from 15.5.2001 to 14.6.2001 he had paid an amount of Rs.10.66 lac for which he did not obtain receipts and believed the defendant's words. According to him, having received that 2 money, later on, in the year 2001 itself the defendant told him that he would not sell his shop and assured to return the money. Assurances were repeated from time to time. On 12.3.2003 defendant assured that whenever he would get the money, he would make the payment in presence of one Bansilal chairman of Sidhunagar Vyapari Mahamandal. Thereafter also, he continued to make assurances but did not make the payment. On 19.1.2008 plaintiff again requested him for payment of the money. On that day, defendant for the first time flatly refused to return the money and also gave threats to him, therefore, plaintiff lodged a report with the police on 21.1.2008 and also complaints to various authorities. In his statements before the police and again in his reply dated 17.3.2008, defendant admitted to have received the money of Rs.10.25 lac but refused to return the money and insisted that he was willing to sell the property subject to payment of interest on the balance amount. The plaintiff filed Special Civil Suit No.181 of 2008 for recovery of amount of Rs.10.66 lac. 3 On behalf of the defendant, application was filed before the trial Court that the suit is ex-facie barred by the limitation and, therefore, the plaint be rejected under Order 7 Rule 11. The trial Court heard the parties and after referring to the certain authorities of 3 this Court and the Supreme Court held that in view of the allegations made in the plaint, it can not be said that plaint itself shows that suit is barred by the limitation. The trial Court came to conclusion that in view of the given facts and circumstances, question of limitation is mixed question of law and facts and that can not be decided at this stage but that can be decided only when the suit is tried. With these observations, application came to be rejected. That order is challenged in the present revision application. 4 As per order 7 Rule 11 CPC, plaint shall be rejected where it does not disclose a cause of action; where the relief claimed is undervalued and on being required by the Court to correct the valuation within the time, plaintiff fails to do so; where the relief claimed is properly valued but requisite Court-fee stamp is not paid and where suit appears from the statement of the plaint to be barred by any law. On reading the plaint in the present case, it appears that the whole agreement was oral. Even though it was contract for sale of shop for Rs.48 lac and though the plaintiff had paid an amount of Rs. 10.66 lac according to him, and Rs.10.25 lac even according to the admission of the defendant, plaintiff had not obtained any receipts from him. It means plaintiff fully relied on the words of the defendant. 4 In the plaint, plaintiff has contended that in the year 2001, defendant told him that he would not sell the property but he would refund the money and he went on giving assurances and such assurances were given from time to time. He believed his assurances but finally defendant refused to make payment for the first time on 19.1.2008. Even today before this Court the learned counsel for the defendant/revision applicant makes a statement that defendant has received amount of Rs. 10.25 lac but he is not willing to refund that money. Whether he had given assurances to refund the money from time to time as pleaded in the plaint is a question of fact. As whole of the agreement and further assurances were oral, which could be proved by leading oral evidence ,at this stage, it can not be said that plaint itself shows that suit is barred by the limitation. It is a mixed question of fact and law, which needs to be tried and Court may finally take a decision on this point. In Kamala & Ors. v. K.T. Eshwara Sa & Ors. AIR 2008 SC 3174, the Supreme Court quoted with approval from earlier judgment of two Judges bench in Balasaria Construction Private Ltd. Vs. Hanuman Seva Trust and Ors. (2006) 5 SCC 658 and reiterated legal position stated therein. In Balasaria Construction, Their 5 Lordships observed thus: “8 After hearing counsel for the parties, going through the plaint, application under Order 7, Rule 11(d), CPC and the judgments of the trial Court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an is sue 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 reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial Court that a plaint cannot be rejected under Order 7, Rule 11(d) of the Code of Civil Procedure.” 5 The trial Court has considered the legal position and the facts while rejecting application made by the defendant. In view of the facts pleaded in the plaint and the legal position settled by the Supreme Court, I find no illegality or irregularity in the said order. 6 For the aforesaid reasons, revision application stands dismissed. (J.H.BHATIA, J.) 6