Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2514 OF 2020
(Arising out of SLP (C) No. 30209/2017)
Shakti Bhog Food Industries Ltd. ...Appellant(s)
Versus
The Central Bank of India & Anr. ...Respondent(s)
With
CIVIL APPEAL NO. 2515 OF 2020
(Arising out of SLP (C) No. 30210/2017)
J U D G M E N T
A.M. Khanwilkar, J.
CIVIL APPEAL NO. 2514 OF 2020
(Arising out of SLP (C) No. 30209/2017)
1. Leave granted.
2. This appeal takes exception to the judgment and order
dated 2.1.2017 passed by the High Court of Delhi at New Delhi
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2020.06.05
16:28:59 IST
Reason:
(for short, “the High Court”) in R.S.A. No. 391/2016, whereby the
High Court affirmed the decision of the Court of Civil Judge–05,
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Central District, Tis Hazari Courts, Delhi, dated 6.1.2016 in C.S.
No. 950/2014 allowing the application filed by the
respondents/defendants for rejection of the plaint under Order
VII Rule 11 of the Code of Civil Procedure, 1908 (for short, “the
CPC”), instituted by the appellant/plaintiff. The Additional
District & Sessions Judge, Central, Tis Hazari Courts, Delhi, vide
order dated 23.7.2016 in R.C.A. No. 61794/2016 had also
affirmed the order of rejecting the plaint. The appellant had filed
the stated suit on 23.2.2005 for a decree for rendition of true and
correct accounts in respect of the interest/commission charged
and deducted by the respondentBank relating to current
account No. CCM 20225 of the appellant for the period between
1.4.1997 and 31.12.2000 and also for recovery of the excess
amount charged by the respondentBank consequent to rendition
of accounts with interest at the rate of 18% per annum from the
date of deduction including interest pendente lite realization of
the amount and future interest.
3. The plaint came to be rejected by the trial Court under
Order VII Rule 11(d) of the CPC on the ground that it was barred
by law of limitation, as it was filed beyond the period of three
years prescribed in Article 113 of the Limitation Act, 1963 (for
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short, “the 1963 Act”), as applicable to the present case, from the
date when the right to sue accrued to the appellant in October,
2000. The entire discussion of the trial Court in that regard can
be traced to paragraphs 10 and 11, which read thus:
‘‘10. As stated above the plaintiff by way of present
suit has sought two reliefs i.e. rendition of account
and repayment of excess money. Limitation Act,
1963 does not provide any specific article with
regard to time period within which accounts can be
sought by party from its bank. As such, Article 113
of Limitation Act came into picture which provides a
limitation period of three years for suits for which no
limitation period is provided, from the date when
right to sue accrues.
11. In the present case in hand, as per averments
made by the plaintiff in his plaint, the facility was
availed by the plaintiff from the defendants till
October 2000. Further as per averments made in the
plaint the alleged amount so charged by the
defendant from the plaintiff, in excess from agreed
amount, was till October, 2000. As such, at best can
be said right to sue accrues in favour of the plaintiff
in October, 2000. Considering the law as stated in
above paragraph, plaintiff could have filed the
present suit i.e. for rendition of account and
repayment of excess amount till October 2003. ...”
After so observing, the trial Court considered the submission of
the appellant that the cause of action had accrued to the
appellant only upon rejection of the representation by the
respondentBank entailing in refusal or denial of liability,
communicated to the appellant vide letters dated 19.9.2002 and
3.6.2003 and after the final legal notice was served upon the
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respondents on 7.1.2005. That contention has been rejected by
adverting to the decision of the same High Court in C.P. Kapur
1
, wherein it is held that exchange of
vs. The Chairman & Ors.
correspondence between the parties cannot extend the limitation
period for institution of a suit, once the right to sue had accrued,
which in this case had accrued in October, 2000, as has been
asserted even in the plaint. Whereas, the suit was filed in
February, 2005 beyond the period of three years from the date on
which right to sue accrued to the appellant, as prescribed in
Article 113 of the 1963 Act. The view so taken by the trial Court
commended to the District Court in first appeal and also the High
Court in second appeal, which judgment is the subject matter of
challenge in the present appeal.
4. We have heard Mr. Nischal Kumar Neeraj, learned counsel
for the appellant and Mr. Anuj Jain, learned counsel for the
respondents.
5. Be it noted that the appellant had relied on Articles 2, 3 and
22 of the 1963 Act to urge that the suit filed in February, 2005
was within limitation. This plea, however, did not impress the
trial Court, the first appellate Court or the High Court. The
1 (2013) 198 DLT 56
5
Courts proceeded on the basis that Article 113 is attracted in the
facts of the present case, as the reliefs claimed by the appellant
were not covered under any specific Article with regard to time
period within which accounts can be sought by party from its
bank, as noted by the trial Court in paragraph 10 of its judgment
reproduced above.
6. The central question is: whether the plaint as filed by the
appellant could have been rejected by invoking Order VII Rule
11(d) of the CPC? Indeed, Order VII Rule 11 of the CPC gives
ample power to the Court to reject the plaint, if from the
averments in the plaint, it is evident that the suit is barred by
any law including the law of limitation. This position is no more
res integra . We may usefully refer to the decision of this Court in
2
. In
Ram Prakash Gupta vs. Rajiv Kumar Gupta & Ors.
paragraph Nos. 13 to 20 of the reported decision, the Court
observed as follows:
“ As per Order 7 Rule 11, the plaint is liable to
13.
be rejected in the following cases:
“( a ) where it does not disclose a cause of
action;
( b ) where the relief claimed is undervalued,
and the plaintiff, on being required by the
court to correct the valuation within a
2 (2007) 10 SCC 59
6
time to be fixed by the court, fails to do
so;
( c ) where the relief claimed is properly
valued but the plaint is written upon
paper insufficiently stamped, and the
plaintiff, on being required by the court to
supply the requisite stamp paper within a
time to be fixed by the court, fails to do
so;
( d ) where the suit appears from the
statement in the plaint to be barred by
any law;
( e ) where it is not filed in duplicate;
( f ) where the plaintiff fails to comply with the
provisions of Rule 9.”
14. In Saleem Bhai v. State of Maharashtra
[(2003) 1 SCC 557] it was held with reference to
Order 7 Rule 11 of the Code that
“ 9 . … the relevant facts which need to be
looked into for deciding an application
thereunder are the averments in the
plaint. The trial court can exercise the
power … at any stage of the suit — before
registering the plaint or after issuing
summons to the defendant at any time
before the conclusion of the trial. For the
purposes of deciding an application under
Clauses ( a ) and ( d ) of Rule 11 of Order 7
CPC, the averments in the plaint are
germane; the pleas taken by the defendant
in the written statement would be wholly
irrelevant at that stage,…” (SCC p. 560,
para 9).
15. In I.T.C. Ltd. v. Debts Recovery Appellate
Tribunal [(1998) 2 SCC 70] it was held that the basic
question to be decided while dealing with an
application filed under Order 7 Rule 11 of the Code
is whether a real cause of action has been set out in
the plaint or something purely illusory has been
stated with a view to get out of Order 7 Rule 11 of
the Code.
16. “The trial court must remember that if on a
meaningful—no formal—reading of the plaint it is
manifestly vexatious and meritless in the sense of
7
not disclosing a clear right to sue, it should exercise
its power under Order 7 Rule 11 CPC taking care to
see that the ground mentioned therein is fulfilled. If
clever drafting has created the illusion of a cause of
action, [it has to be nipped] in the bud at the first
hearing by examining the party searchingly under
Order 10 CPC.”
(See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC
467], SCC p. 468.).
17. It is trite law that not any particular plea has
to be considered, and the whole plaint has to be
read. As was observed by this Court in Roop Lal
Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487],
only a part of the plaint cannot be rejected and if no
cause of action is disclosed, the plaint as a whole
must be rejected.
18. In Raptakos Brett & Co. Ltd. v. Ganesh
Property [(1998) 7 SCC 184] it was observed that the
averments in the plaint as a whole have to be seen
to find out whether Clause ( d ) of Rule 11 of Order 7
was applicable.
19. In Sopan Sukhdeo Sable v. Asstt. Charity
[(2004) 3 SCC 137] this Court held thus:
Commr.
(SCC pp. 14647, para 15)
“ 15 . There cannot be any
compartmentalisation, dissection,
segregation and inversions of the language of
various paragraphs in the plaint. If such a
course is adopted it would run counter to
the cardinal canon of interpretation
according to which a pleading has to be read
as a whole to ascertain its true import. It is
not permissible to cull out a sentence or a
passage and to read it out of the context in
isolation. Although it is the substance and
not merely the form that has to be looked
into, the pleading has to be construed as it
stands without addition or subtraction or
words or change of its apparent grammatical
sense. The intention of the party concerned
is to be gathered primarily from the tenor
and terms of his pleadings taken as a whole.
At the same time it should be borne in mind
that no pedantic approach should be
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adopted to defeat justice on hairsplitting
technicalities.”
20. For our purpose, Clause ( d ) is relevant. It
makes it clear that if the plaint does not contain
necessary averments relating to limitation, the same
is liable to be rejected. For the said purpose, it is the
duty of the person who files such an application to
satisfy the court that the plaint does not disclose
how the same is in time. In order to answer the said
question, it is incumbent on the part of the court to
verify the entire plaint. Order 7 Rule 12 mandates
where a plaint is rejected, the court has to record
the order to that effect with the reasons for such
order.”
On the same lines, this Court in Church of Christ Charitable
Trust & Educational Charitable Society vs. Ponniamman
3
Educational Trust , observed as follows:
“10 … It is clear from the above that where the plaint
does not disclose a cause of action, the relief claimed is
undervalued and not corrected within the time allowed by
the court, insufficiently stamped and not rectified within
the time fixed by the court, barred by any law, failed to
enclose the required copies and the plaintiff fails to
comply with the provisions of Rule 9, the court has no
other option except to reject the same. A reading of the
above provision also makes it clear that power under
Order 7 Rule 11 of the Code can be exercised at any stage
of the suit either before registering the plaint or after the
issuance of summons to the defendants or at any time
before the conclusion of the trial.
11. This position was explained by this Court in
Saleem Bhai vs. State of Maharashtra , (2003) 1 SCC 557,
in which, while considering Order 7 Rule 11 of the Code,
it was held as under: (SCC p. 560, para 9)
“9. A perusal of Order 7 Rule 11 CPC
makes it clear that the relevant facts
which need to be looked into for deciding
an application thereunder are the
3 (2012) 8 SCC 706
9
averments in the plaint. The trial court
can exercise the power under Order 7 Rule
11 CPC at any stage of the suit — before
registering the plaint or after issuing
summons to the defendant at any time
before the conclusion of the trial. For the
purposes of deciding an application under
clauses (a) and (d) of Rule 11 of Order 7
CPC, the averments in the plaint are
germane; the pleas taken by the defendant
in the written statement would be wholly
irrelevant at that stage, therefore, a
direction to file the written statement
without deciding the application under
Order 7 Rule 11 CPC cannot but be
procedural irregularity touching the
exercise of jurisdiction by the trial court.”
It is clear that in order to consider Order 7 Rule 11, the
court has to look into the averments in the plaint and the
same can be exercised by the trial court at any stage of
the suit. It is also clear that the averments in the written
statement are immaterial and it is the duty of the Court
to scrutinize the averments/pleas in the plaint. In other
words, what needs to be looked into in deciding such an
application are the averments in the plaint. At that stage,
the pleas taken by the defendant in the written statement
are wholly irrelevant and the matter is to be decided only
on the plaint averments. These principles have been
reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh
Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. vs.
Vessel M.V. Fortune Express , (2006) 3 SCC 100.
12. It is also useful to refer the judgment in T.
Arivandandam vs. T.V. Satyapal , (1977) 4 SCC 467,
wherein while considering the very same provision i.e.
Order 7 Rule 11 and the duty of the trial court in
considering such application, this Court has reminded
the trial Judges with the following observation: (SCC p.
470, para 5)
“5. … The learned Munsif must remember
that if on a meaningful – not formal –
reading of the plaint it is manifestly
vexatious, and meritless, in the sense of
not disclosing a clear right to sue, he
should exercise his power under Order 7,
Rule 11 C.P.C. taking care to see that the
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ground mentioned therein is fulfilled. And,
if clever drafting has created the illusion of
a cause of action, nip it in the bud at the
first hearing by examining the party
searchingly under Order 10, C.P.C. An
activist Judge is the answer to
irresponsible law suits. The trial courts
would insist imperatively on examining
the party at the first hearing so that bogus
litigation can be shot down at the earliest
stage. The Penal Code is also resourceful
enough to meet such men, (Chapter XI)
and must be triggered against them.”
It is clear that if the allegations are vexatious and
meritless and not disclosing a clear right or material(s) to
sue, it is the duty of the trial Judge to exercise his power
under Order 7 Rule 11. If clever drafting has created the
illusion of a cause of action as observed by Krishna Iyer
J., in the above referred decision, it should be nipped in
the bud at the first hearing by examining the parties
under Order 10 of the Code.”
We may also advert to the exposition of this Court in Madanuri
4
. In paragraph 7 of
Sri Rama Chandra Murthy vs. Syed Jalal
the said decision, this Court has succinctly restated the legal
position as follows:
“7. The plaint can be rejected under Order 7 Rule 11 if
conditions enumerated in the said provision are fulfilled.
It is needless to observe that the power under Order 7
Rule 11, CPC can be exercised by the Court at any stage
of the suit. The relevant facts which need to be looked
into 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,
the court should exercise power under Order 7 Rule 11
CPC. Since the power conferred on the Court to terminate
civil action at the threshold is drastic, the conditions
enumerated under Order 7 Rule 11 CPC to the exercise of
4 (2017) 13 SCC 174
11
power of rejection of plaint have to be strictly adhered to.
The averments of the plaint have to be read as 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 to
observe that the question as to whether the suit is barred
by any law, would always depend upon the facts and
circumstances of each case. The averments in the written
statement as well as the contentions of the defendant are
wholly immaterial while considering the prayer of the
defendant for rejection of the plaint. Even when the
allegations made in the plaint are taken to be correct as a
whole on their face value, if they show that the suit is
barred by any law, or do not disclose cause of action, the
application for rejection of plaint can be entertained and
the power under Order 7 Rule 11 CPC 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
earliest so that bogus litigation will end at the earlier
stage.”
Keeping in mind the well settled legal position, we may now
proceed to analyse the averments in the plaint, as filed by the
appellant, to discern whether it was a fit case for rejection of the
plaint under Order VII Rule 11(d) of the CPC. As noticed from
the trial Court judgment, it is evident that the trial Court did not
make any attempt to analyse the plaint in the manner predicated
in the aforesaid decisions. Even the District Court dealing with
first appeal and the High Court with second appeal omitted to do
so. It is the bounden duty of the Court to examine the plaint as a
whole and not selected averments therein. For that, we need to
advert to the averments in the plaint. Paragraphs 8 to 15 of the
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plaint, which according to us, are the relevant averments, read as
follows:
‘‘8. That the facility as referred to in the foregoing paras
was extended with effect from 01.04.1997 and somewhere
in the month of July, 2000 it was noticed by the Plaintiff
that the Defendants were charging interest/commission
@ Rs.4/ per thousand rupees on local cheques and
drafts in an arbitrary manner in violation of the
assurance given to the Plaintiff.
9. That after the detection of the above
overcharging of interest/commission the Plaintiff
sent a letter to the Defendants on 21.07.2000
complaining about the overcharging and thereafter
the interest/commission was charged as per
assurance given.
10. That the amount overcharged as
commission/interest was not refunded to the Plaintiff and
the Plaintiff sent the following letters addressed to the
Bank i.e. General Manager and Senior Manager indicating
therein that amount overcharged should be refunded to
the Plaintiff with interest thereon:
Letter dated 12.10.2000, 24.10.2000, 30.10.2000,
7.11.2000, 24.12.2000, 01.03.2001, 28.03.2001,
22.5.2001 and 20.06.2001. In all the above letters
requests were made to clarify as to how the commission
were calculated and deducted from the Plaintiff.
11. That the Assistant General Manager, Sh. P.S.
Bawa of Regional OfficeB, Delhi vide letter dated
9.7.2001 informed the Plaintiff that the comments of
the Branch Office have been invited on the
representation of the Plaintiff in respect of the local
cheques/DDs discounted during the relevant period
and the matter will be decided as early as possible. No
progress was made in the matter and the Plaintiff had
to submit letter dated 31.10.2001 to the Hon’ble
Finance Minister, Govt. of India, New Delhi.
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12. That the Defendants have charged interest for some
time for the actual number of days for the Defendants
remained out of funds.
13. That vide letter dated 08.05.2002, the Senior
Manager informed the Plaintiff that the cheques were
being purchased at the prevailing rates. That reply
was given to sidetrack the real issue in respect of
which letter dated 09.07.2001 was received from Shri
P.S. Bawa, Assistant General Manager of Regional
Office as referred to in the foregoing paras .
14. That, thereafter, the Plaintiff sent letters dated
12.07.2002, 22.09.2002, 24.3.2003 alongwith which the
details of the proposed/estimated excess amount charged
were given and it was requested that a sum of
Rs.31,57,484/ approximately appears to have been
charged in excess of what should have been actually
charged and the exact amount should be calculated and
refunded to the Plaintiff. No reply was given by the Bank
to these letters.
15. That Senior Manager of the Defendant No. 2
vide letter dated 19.09.2002 had informed that
everything was done according to rules and the
matters need not to be pursued any further and
thereafter the Plaintiff sent another letter dated
03.06.2003 .”
(emphasis supplied)
Again, in paragraph 28 of the plaint, it is stated as follows:
“28. That the cause of action to file the suit accrued in
favour of the Plaintiff and against the Defendants when
the illegal recoveries were noticed and letter dated
21.07.2000 was sent to the Defendants to clarify as to
how the interest was being calculated and recovered and
on various other dates when the letters were sent to the
Defendants with request for refund of the excess amounts
charged and on 9.7.2001 when assurance for proper
calculation and refund was conveyed to the Plaintiff and
on 8.5.2002, 12.7.2002 and 22.9.2002 when requests
were again made to settle the matter on 19.9.2002,
3.6.2003 and the cause of action arose on 23.12.2003
when the legal notice was served upon the Defendant and
on 28.12.2003 when the reply to the notice was received
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and finally on 07.01.2005. When the legal notice for
rendition of accounts was served upon the Defendants
and the cause of action still subsists as the accounts
have not been rendered so far nor the excess amount
charged has been refunded by the Defendants.”
From the averments in the plaint, if read as a whole, it would
appear that the assertion of the appellant is that the respondents
had extended financial facility with effect from 1.4.1997 till
October, 2007, but somewhere in the month of July, 2000, the
appellant noticed that the respondents were unilaterally charging
interest/commission at the rate of Rs.4 per thousand rupees on
local cheques and drafts in an arbitrary manner in violation of
the assurance given to the appellant. Immediately thereafter, the
appellant wrote to the respondentBank vide letter dated
21.7.2000 for taking corrective steps in the matter. Then
correspondence ensued between the parties in that regard and
the appellant was assured by the Regional Office of the
respondentBank that an appropriate decision will be taken at
the earliest. The relevant assertion in that regard is found in
paragraph 11 of the plaint, wherein it is mentioned that the
Assistant General Manager Shri P.S. Bawa of Regional OfficeB,
Delhi, vide letter dated 9.7.2001 informed the appellant that
comments from the concerned Branch Office have been invited
15
and appropriate decision will be taken on its representation as
early as possible. Thereafter, on 8.5.2002, the Senior Manager of
the respondentBank informed the appellant that the cheques
were being purchased at the prevailing rates; which plea,
according to the appellant, was to deviate from the position
stated by the Assistant General Manager of Regional Office in his
letter dated 9.7.2001 referred to earlier. Resultantly, the
appellant wrote to the officials of the respondentBank vide
letters dated 12.7.2002, 22.9.2002 and 24.3.2003. Notably, it is
averred in paragraph 15 of the plaint that the Senior Manager of
the respondentBank vide letter dated 19.9.2002 had informed
the appellant that everything was being done in accordance with
the rules and the appellant need not pursue the matter any
further. It is asserted that despite this intimation, the appellant
continued to correspond with the respondentBank with a
sanguine hope that the issue will be resolved at the appropriate
level by the Bank and finally issued a legal notice on 28.11.2003,
which was duly responded to by the respondentBank vide
Advocate’s letter dated 23.12.2003. Nevertheless, the appellant
gave another legal notice on 7.1.2005 and thereafter, proceeded
to file the subject suit in February, 2005.
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7. All these events have been reiterated in paragraph 28 of the
plaint, dealing with the cause of action for filing of the suit.
Indeed, the said paragraph opens with the expression “the cause
of action to file the suit accrued in favour of the plaintiff and
against the defendants when the illegal recoveries were noticed
and letter dated 21.7.2000 was sent to the defendants to clarify
as to how the interest was being calculated.” This averment
cannot be read in isolation. As aforesaid, on reading the plaint
as a whole, it is seen that the gravamen of the case made out in
the plaint is that the appellant noticed the discrepancy in July,
2000 and immediately took up the matter with the officials of the
respondentBank at different levels and in response, the
Assistant General Manager of Regional Office of the Bank had
communicated in writing to the appellant vide letter dated
9.7.2001 that its representation was being examined and
comments of the Branch Office have been invited and after
receipt thereof the matter will be decided as early as possible. As
no further communication was received by the appellant, it had
to make a representation to the Finance Minister, Government of
India, vide letter dated 31.10.2001 and presumably because of
that, the appellant received a communication from the Senior
17
Manager vide letter dated 8.5.2002 informing the appellant that
the cheques were being purchased at the prevailing rates. This
stand taken by the Senior Manager was to sidetrack the issue
pending consideration before the Assistant General Manager,
Regional Office referred to in his letter dated 9.7.2001. The case
made out by the appellant is that no communication was
received by the appellant from the Assistant General Manager,
Regional Office and instead, for the first time it was informed vide
letter dated 19.9.2002 sent by the Senior Manager of the
respondentBank, that all actions taken by the Bank are as per
the rules and, therefore, the appellant need not correspond in
this regard any further. This response of the Bank could also be
regarded as a firm denial or refusal by the authorised official of
the Bank, giving rise to cause of action to sue the Bank.
8. Thus understood, the letter dated 8.5.2002 sent by the
Senior Manager of the respondentBank, at best, be reckoned as
accrual of the cause of action to the appellant to sue the
respondentBank. It is then stated that the appellant received a
communication dated 19.9.2002, informing the appellant that it
should not carry on any further correspondence with the Bank
18
relating to the subject matter. Until then, the appellant was
having a sanguine hope of favourable resolution of its claim
including by the Regional Office of the respondents. The
appellant, therefore, had to send a legal notice on 28.11.2003, to
which the Bank responded on 23.12.2003. Reckoning these
dates, the plaint filed on 23.2.2005 was within limitation, as
stated in paragraph 28 of the plaint. Resultantly, the question of
rejecting such a plaint under Order VII Rule 11(d) of the CPC did
not arise.
9. The expression used in Article 113 of the 1963 Act is “when
the right to sue accrues”, which is markedly distinct from the
expression used in other Articles in First Division of the Schedule
dealing with suits, which unambiguously refer to the happening
of a specified event. Whereas, Article 113 being a residuary
clause and which has been invoked by all the three Courts in this
case, does not specify happening of particular event as such, but
merely refers to the accrual of cause of action on the basis of
which the right to sue would accrue.
10. Concededly, the expression used in Article 113 is distinct
from the expressions used in other Articles in the First Division
19
dealing with suits such as Article 58 (when the right to sue “ first ”
accrues), Article 59 (when the facts entitling the plaintiff to have
the instrument or decree cancelled or set aside or the contract
rescinded “ first ” become known to him) and Article 104 (when the
plaintiff is “ first ” refused the enjoyment of the right). The view
taken by the trial Court, which commended to the first appellate
Court and the High Court in second appeal, would inevitably
entail in reading the expression in Article 113 as – when the right
to sue (first) accrues. This would be rewriting of that provision
and doing violence to the legislative intent. We must assume that
the Parliament was conscious of the distinction between the
provisions referred to above and had advisedly used generic
expression “when the right to sue accrues” in Article 113 of the
1963 Act. Inasmuch as, it would also cover cases falling under
Section 22 of the 1963 Act, to wit, continuing breaches and torts.
11. We may usefully refer to the dictum of a threeJudge Bench
of this Court in Union of India & Ors. vs. West Coast Paper
5
. , which has had an occasion to examine the
Mills Ltd. & Anr
expression used in Article 58 in contradistinction to Article 113 of
5 (2004) 2 SCC 747
20
the 1963 Act. We may advert to paragraphs 19 to 21 of the said
decision, which read thus:
“19. Articles 58 and 113 of the Limitation Act read thus:
| Description of suit | Period of<br>limitation | Time from which<br>period begins to<br>run | |
|---|---|---|---|
| 58. | To obtain any<br>other declaration. | Three<br>years | When the right to<br>sue first accrues. |
| * | * | * | |
| 113. | Any suit for which<br>no period of<br>limitation is<br>provided elsewhere<br>in this Schedule. | Three<br>years | When the right to<br>sue accrues. |
20. It was not a case where the respondents prayed for
a declaration of their rights. The declaration sought for by
them as regards unreasonableness in the levy of freight
was granted by the Tribunal.
21. A distinction furthermore, which is required to be
noticed is that whereas in terms of Article 58 the period of
three years is to be counted from the date when “the right
to sue first accrues”, in terms of Article 113 thereof, the
period of limitation would be counted from the date “when
the right to sue accrues”. The distinction between
Article 58 and Article 113 is, thus, apparent inasmuch
as the right to sue may accrue to a suitor in a given
case at different points of time and, thus, whereas in
terms of Article 58 the period of limitation would be
reckoned from the date on which the cause of action
arose first, in the latter the period of limitation would
be differently computed depending upon the last day
.”
when the cause of action therefor arose
(emphasis supplied)
12. Similarly, in
Khatri Hotels Private Limited & Anr. Vs.
6
Union of India & Anr. , this Court considered the expression
6 (2011) 9 SCC 126
21
used in Article 58 in contradistinction to Article 120 of the old
Limitation Act (the Indian Limitation Act, 1908). In paragraph
24, the Court noted thus:
“24. The Limitation Act, 1963 (for short “the 1963 Act”)
prescribes time limit for all conceivable suits, appeals,
etc. Section 2( j ) of that Act defines the expression “period
of limitation” to mean the period of limitation prescribed
in the Schedule for suit, appeal or application. Section 3
lays down that every suit instituted, appeal preferred or
application made after the prescribed period shall,
subject to the provisions of Sections 4 to 24, be dismissed
even though limitation may not have been set up as a
defence.
If a suit is not covered by any specific article,
then it would fall within the residuary article. In other
words, the residuary article is applicable to every kind
of suit not otherwise provided for in the Schedule .”
(emphasis supplied)
The distinction between the two Articles (Article 58 and Article
120) has been expounded in paragraphs 27 to 30 of the reported
decision, which read thus:
“27. The differences which are discernible from the
language of the above reproduced two articles are:
( i ) The period of limitation prescribed under
Article 120 of the 1908 Act was six years whereas
the period of limitation prescribed under the 1963
Act is three years and,
( ii ) Under Article 120 of the 1908 Act, the
period of limitation commenced when the right
to sue accrues. As against this, the period
prescribed under Article 58 begins to run when
the right to sue first accrues.
28. Article 120 of the 1908 Act was interpreted by the
Judicial Committee in Bolo v. Koklan [(192930) 57 IA
325: AIR 1930 PC 270] and it was held: (IA p. 331)
22
“There can be no ‘right to sue’ until there is an
accrual of the right asserted in the suit and its
infringement, or at least a clear and unequivocal
threat to infringe that right, by the defendant
against whom the suit is instituted.” The same
view was reiterated in Annamalai Chettiar v.
Muthukaruppan Chettiar [ILR (1930) 8 Rang 645]
and v.
Gobinda Narayan Singh Sham Lal Singh
[(193031) 58 IA 125] .
29. In Rukhmabai v. Lala Laxminarayan (AIR 1960 SC
335), the threeJudge Bench noticed the earlier
judgments and summed up the legal position in the
following words: ( Rukhmabai case [AIR 1960 SC 335, AIR
p. 349, para 33)
“ 33 . … The right to sue under Article 120 of the
[1908 Act] accrues when the defendant has
clearly or unequivocally threatened to infringe
the right asserted by the plaintiff in the suit.
Every threat by a party to such a right, however
ineffective and innocuous it may be, cannot be
considered to be a clear and unequivocal threat
so as to compel him to file a suit. Whether a
particular threat gives rise to a compulsory
cause of action depends upon the question
whether that threat effectively invades or
jeopardizes the said right .”
30. While enacting Article 58 of the 1963 Act, the
legislature has designedly made a departure from the
language of Article 120 of the 1908 Act. The word “first”
has been used between the words “sue” and “accrued”.
This would mean that if a suit is based on multiple
causes of action, the period of limitation will begin to run
from the date when the right to sue first accrues. To put
it differently, successive violation of the right will not give
rise to fresh cause and the suit will be liable to be
dismissed if it is beyond the period of limitation counted
from the day when the right to sue first accrued.”
(emphasis supplied)
Notably, the expression used in Article 113 is similar to that in
Article 120, namely, “when the right to sue accrues”. Hence, the
23
principle underlying this dictum must apply proprio vigore to
Article 113.
13. It is well established position that the cause of action for
filing a suit would consist of bundle of facts. Further, the factum
of suit being barred by limitation, ordinarily, would be a mixed
question of fact and law. Even for that reason, invoking Order
VII Rule 11 of the CPC is ruled out. In the present case, the
assertion in the plaint is that the appellant verily believed that its
claim was being processed by the Regional Office and the
Regional Office would be taking appropriate decision at the
earliest. That belief was shaken after receipt of letter from the
Senior Manager of the Bank, dated 8.5.2002 followed by another
letter dated 19.9.2002 to the effect that the action taken by the
Bank was in accordance with the rules and the appellant need
not correspond with the Bank in that regard any further. This
firm response from the respondentBank could trigger the right of
the appellant to sue the respondentBank. Moreover, the fact
that the appellant had eventually sent a legal notice on
28.11.2003 and again on 7.1.2005 and then filed the suit on
23.2.2005, is also invoked as giving rise to cause of action.
Whether this plea taken by the appellant is genuine and
24
legitimate, would be a mixed question of fact and law, depending
on the response of the respondents.
14. Reverting to the argument that exchange of letters or
correspondence between the parties cannot be the basis to
extend the period of limitation, in our opinion, for the view taken
by us hitherto, the same need not be dilated further. Inasmuch
as, having noticed from the averments in the plaint that the right
to sue accrued to the appellant on receiving letter from the Senior
Manager, dated 8.5.2002, and in particular letter dated
19.9.2002, and again on firm refusal by the respondents vide
Advocate’s letter dated 23.12.2003 in response to the legal notice
sent by the appellant on 28.11.2003; and once again on the
follow up legal notice on 7.1.2005, the plaint filed in February,
2005 would be well within limitation. Considering the former
events of firm response by the respondents on 8.5.2002 and in
particular, 19.9.2002, the correspondence ensued thereafter
including the two legal notices sent by the appellant, even if
disregarded, the plaint/suit filed on 23.2.2005 would be within
limitation in terms of Article 113.
25
15. The respondents had relied on the exposition of this Court
7
in Boota Mal vs. Union of India , S.S. Rathore vs. State of
8
,
Madhya Pradesh Venkappa Gurappa Hosur vs. Kasawwa
9
C/o Rangappa Kulgod , and Kandimalla Raghavaiah &
10
and of
Company vs. National Insurance Company & Anr.
Delhi High Court in C.P. Kapur (supra), to buttress the above
argument, which, as aforesaid, is unavailable in light of the
averments in the plaint under consideration. Suffice it to observe
that going by the averments in the plaint, the argument of the
respondents that the appellant had placed reliance on the
correspondence to get extension of the limitation period, is
untenable. The averments in the plaint, however, are very
explicit to the effect that the grievance of the appellant about
unilateral charging of interest/commission by the respondent
Bank was firmly denied or refused by the Senior Manager of the
respondentBank vide letter dated 8.5.2002 and in particular
letter dated 19.9.2002 and again by Advocate’s letter on
23.12.2003, giving rise to cause of action and accrual of right to
sue.
7 AIR 1962 SC 1716
8 (1989) 4 SCC 582
9 (1997) 10 SCC 66
10 (2009) 7 SCC 768
26
16. The respondents had also relied on the dictum of this Court
11
in Fatehji And Company & Anr. vs. L.M. Nagpal & Ors. .
Indeed, in that case, this Court upheld the order of rejection of
plaint on the finding that the suit was barred by limitation under
Article 54 of the 1963 Act, in the fact situation of that case. The
Court was dealing with a suit for specific performance of a
written agreement of sale dated 2.7.1973 and as per the terms,
the performance of the contract was fixed for 2.12.1973. In that
background, the Court noted that the subsequent letters
exchanged between the parties cannot be the basis to extend the
period of limitation. Moreover, the Court dealt with the case
governed by Article 54 of the 1963 Act, which stipulates the
timeline for commencement of period of limitation, being the date
fixed for the performance, or, if no such date is fixed, when the
plaintiff has notice that performance is refused. In cases
governed by Article 113 of the 1963 Act, such as the present
case, however, what is required to be noted is – “when the right
to sue accrues” (and not when the right to sue “ first ” accrues).
11 (2015) 8 SCC 390
27
17. Similarly, in the case of Hardesh Ores (P) Ltd. vs. Hede
12
, this Court upheld the order of rejection of
and Company
plaint under Order VII Rule 11 of the CPC concerning a suit for
injunction in reference to Article 58, which expressly postulates
that time from which period begins to run is when the right to
sue “ first ” accrues. The argument of the appellant therein to
apply Article 113 of the 1963 Act has been noted in paragraph 33
and rejected. In that view of the matter, the exposition in this
decision will be of no avail to the respondents.
18. Reverting to the decision in Kandimalla Raghavaiah
(supra), the Court interpreted Section 24A of the Consumer
Protection Act, 1986, which defines the period of limitation to be
within two years from the date on which the cause of action had
arisen. In light of that provision, the Court noted that the cause
of action in respect of subject insurance policy arose on
22/23.3.1988, when fire in the godown took place, damaging the
tobacco stocks hypothecated with the Bank in whose account the
policy had been taken by the appellant therein. In other words,
the stipulation in Section 24A of the Consumer Protection Act,
1986 is analogous to the time frame specified in other Articles
12 (2007) 5 SCC 614
28
covered under First Division of the Schedule to the 1963 Act
regarding suits relating to accounts; and not similar to Article
113, which envisages three years’ time from the period when the
right to sue accrues (and not when the right to sue “ ”
first
accrues).
19. As regards Boota Mal (supra) and The East and West
Steamship, Georgetown, Madras vs. S.K. Ramalingam
13
Chettiar , the Court was dealing with a case relating to Article
31 of the old Limitation Act, which provided that the time from
which period begins to run, is when the goods sought to be
delivered. Even these decisions will be of no avail to the fact
situation of the present case, which is governed by Article 113 of
the 1963 Act and for the reasons already recorded hereinbefore.
20. Similarly, in S.S. Rathore (supra), the Court was dealing
with a case governed by Article 58 of the 1963 Act, which
specifically provides that time begins to run when the right to sue
“ first ” accrues. In Ram Prakash Gupta (supra), the Court dealt
with a case governed by Article 59 of the 1963 Act, which
provides that the suit could be filed when the facts entitling the
13 AIR 1960 SC 1058
29
plaintiff to have the instrument or decree cancelled or set aside or
the contract rescinded “ first ” become known to him. The Court
opined that the knowledge mentioned in the concerned plaint
could not be termed as inadequate and incomplete. The Court
reversed the judgment of the Civil Judge and the High Court
rejecting the plaint. This Court also noted that while deciding the
application under Order VII Rule 11 of the CPC, few lines or
passage from the plaint should not be read in isolation and the
pleadings ought to be read as a whole to ascertain its true
import. Even in that case, the trial Court and the High Court
had failed to advert to the relevant averments, as stated in the
plaint, which approach was disapproved by this Court. In the
present case, as noticed earlier, the trial Court had failed to
advert to and analyse the averments in the plaint, but selectively
took notice of the assertion in the plaint in question that the
appellant became aware about the discrepancies in July, 2000,
and then proceeded to reject the plaint being barred by law of
limitation having been filed in February, 2005.
21. Taking overall view of the matter, therefore, we are of the
considered opinion that the decisions of the trial Court, the first
appellate Court and the High Court in the fact situation of the
30
present case, rejecting the plaint in question under Order VII
Rule 11(d) of the CPC, cannot be sustained. As a result, the
same are quashed and set aside.
22. In view of the above, this appeal succeeds and the plaint
stands restored to the file of the trial Court to its original number
for being proceeded in accordance with law. All contentions
available to both parties are kept open including the issue of
limitation to be decided alongwith other issues on the basis of
plea taken in the written statement and the evidence produced by
the parties in that behalf uninfluenced by the observations made
in the present judgment on factual matters. There shall be no
order as to costs. Pending interlocutory applications, if any, shall
stand disposed of.
CIVIL APPEAL NO. 2515 OF 2020
(Arising out of SLP (C) No. 30210/2017)
1. Leave granted.
2. In the present appeal, the factual narration in the plaint is
similar in material respects, if not identical to the plaint in the
companion appeal arising from SLP(C) No. 30209/2017. To wit,
it is apposite to reproduce relevant averments from the plaint in
question, which read as follows:
31
“8. That the facility as referred to in the foregoing paras
was extended with effect from the month of November,
1997 to December, 1999 and somewhere in the month of
July, 2000 it was noticed by the plaintiff that the
defendants were charging interest/commission @ Rs.4/
per thousand rupees on local cheques and drafts in an
arbitrary manner in violation of the assurance given to
the plaintiff.
9. That after the detection of the above
overcharging the interest/commission the plaintiff
sent a letter to the defendants on 21.7.2000
complaining about the overcharging and thereafter
the interest/commission was charged as per
assurance given .
10. That the amount overcharged as
commission/interest was not refunded to the plaintiff and
the plaintiff sent the following letters addressed to the
Bank i.e. General Manager and Senior Manager indicating
therein that the amount overcharged should be refunded
to the plaintiff with interest thereon:
Letter dated 12.10.2000, 24.10.2000, 30.10.2000,
7.11.2000, 24.12.2000, 01.03.2001, 28.03.2001,
22.05.2001 and 20.06.2001.
In all the above letters requests were made to clarify as
to how the commission was calculated and deducted from
the plaintiff.
11. That the Assistant General Manager, Sh. P.S.
Bawa of Regional OfficeB, Delhi vide letter dated
9.7.2001 informed the plaintiff that the comments of
the Branch Office have been invited on the
representation of the plaintiff in respect of the local
cheques/DDs discounted during the relevant period
and the matter will be decided as early as possible. No
progress was made in the matter and the plaintiff had
to submit letter dated 31.10.2001 to the Hon’ble
Finance Minister, Govt. of India, New Delhi .
12. That the defendants have charged interest for some
time for the actual number of days for the defendants
remained out of funds.
32
13. That vide letter dated 08.05.2002, the Senior
Manager informed the plaintiff that the cheques were
being purchased at the prevailing rates. That reply
was given to sidetrack the real issue in respect of
which letter dated 09.07.2001 was received from Sh.
P.S. Bawa, Assistant General Manager of Regional
Office as referred to in the foregoing paras .
14. That, thereafter, the plaintiff sent letters dated
12.07.2002, 22.07.2002, 24.03.2003 along with which
the details of the proposed/estimated excess amount
charged were given and it was requested that a sum of
Rs.5,39,902/ approximately appears to have been
charged in excess of what should have been actually
charged and the exact amount should be calculated and
refunded to the plaintiff. No reply was given by the bank
to these letters.
15. That Senior Manager of the defendant No.2 vide
letter dated 19.09.2002 had informed that everything
was done according to rules and the matters need not
to be pursued any further and thereafter the plaintiff
.
sent another letter dated 3.06.2003
16. That the excess amounts have been
recovered/charged from the plaintiff in an arbitrary
manner, in utter violation of the assurances, rules,
regulations and established cannons of business
dealings; and inspite of the protracted correspondence
made from 21.07.2000 to 03.06.2003, the defendants
have failed to account for or to justify the recovery of
amounts made in an arbitrary manner by citing any
rules, regulations or any other authority.
xxx xxx xxx
18. That thereafter, the plaintiff got a legal notice
served upon the defendant vide registered letter No.6672
dated 03.12.2003 containing all the details relating to the
transactions as could be gathered from the books of
accounts of the plaintiff.
19. That reply to the above noted notice was sent by
the defendants through Sh. Sanjeev Kumar Gupta,
Advocate, vide letter dated 23.12.2003 wherein averments
relating to the excess charges were denied and it was
stated that the interest was charged on DD/cheques as
per Central Officer Circular No. C09495; 233 upto
33
01.12.1999 and thereafter as per Circular No.
CO/OPR/SCHGS/CIR/LET/20002001 dated
18.08.2000.”
(emphasis supplied)
Again, in paragraph 28, it is stated as follows:
“28. That the cause of action to file the suit accrued in
favour of the plaintiff and against the defendants when
the illegal recoveries were noticed and letter dated
21.07.2000 was sent to the defendants to clarify as to
how the interest was being calculated and recovered and
on various other dates when the letters were sent to the
defendants with request for refund of the excess amounts
charged and on 9.7.2001 when assurance for proper
calculation and refund was conveyed to the plaintiff and
on 8.5.2002, 12.7.2002 and 22.9.2002 when requests
were again made to settle the matter on 19.9.2002,
3.6.2003 and their cause of action arose on 28.12.2003
where the legal notice was served upon the defendant and
on 23.12.2003 when the reply to the notice was received
and finally on 08.01.2005 when the legal notice for
rendition of accounts was served upon the defendants
and the cause of action still subsists as the accounts
have not been rendered so far nor the excess amount
charged has been refunded by the Defendants.”
3. We have considered the factual position in the present case,
which is similar to the facts in the companion appeal. Therefore,
for the reasons stated in the judgment in companion appeal
arising from SLP(C) No. 30209/2017, even this appeal should
succeed on the same terms. Accordingly, this appeal is also
allowed and the impugned judgment and order of the trial Court,
the first appellate Court and the High Court in second appeal are
set aside and the plaint is restored to the file of the trial Court to
be disposed of on the same terms as indicated in the companion
34
appeal (arising from SLP(C) No. 30209/2017). There shall be no
order as to costs. Pending interlocutory applications, if any, shall
stand disposed of.
..................................J.
(A.M. Khanwilkar)
..................................J.
(Indira Banerjee)
..................................J.
(Dinesh Maheshwari)
New Delhi;
June 05, 2020.