Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA No. 6769/2008 in CS(OS) No. 844/2008
Date of Decision : 02.02.2010
Schenker India Pvt. Ltd. …… Plaintiff
Through: Mr. V. K. Gupta,
Advocate.
Versus
Sirpur Paper Mills Ltd. …… Defendant
Through: Mr. Anil Gera, Advocate.
CORAM :
HON’BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
V.K. SHALI, J.
1. This order shall dispose of the application filed by the
plaintiff bearing no. 6769/2008 under Section 151 CPC of
the Limitation Act for condoning the delay of 204 days in
refiling the suit.
2. Briefly stated the facts of the case are that the plaintiff filed
a suit against the defendant for damages of
Rs.5,00,00,000/- and for permanent injunction. It was
alleged, in the suit that the plaintiff is a wholly owned
subsidiary of Schenker AG, Germany and is engaged in the
business of logistics. The plaintiff was alleged to have been
carrying on business at international and domestic freight
CS(OS) No.844/2008 Page 1 of 8
transporters as air cargo, shipping, chartering,
consolidation, forwarding, customs clearing and travel
agents etc. It is alleged that the plaintiff came and talked
to the defendant at its office in Delhi on 09.09.2005. The
defendant vide an e-mail on the same date sought to
engage the services of the plaintiff for providing such
logistic facilities. The defendant accepted shipment made
in respect of the following goods
a. Material-Second Hand paper machine
b. Container requirement etc.
3. The sum and substance of the transaction between the
plaintiff and the defendant was that the defendant is
running a paper mill at Sirpur (Hyderabad) and in the
course of its business it had purchased heavy duty
machine from Germany and the same was to be
transported by the plaintiff from Germany to India finally at
Sirpur. During the course of this transaction there were
allegations and counter allegations of breach of various
obligations on the part of respective sides. The case of the
defendant was that the plaintiff had not released some
containers which necessitated filing of a suit for injunction
against the plaintiff as a consequence of which though the
machinery was released by the plaintiff to the defendant,
however, the plaintiff claimed that in the process they were
defamed on account of various e-mail and other acts of
commission and omission on the part of the defendant. It
CS(OS) No.844/2008 Page 2 of 8
is also alleged by the plaintiff that the defendant had with a
view to pressurize and blackmail the plaintiff filed a
criminal complaint under Section 200 Cr.P.C. for
registration of an FIR under various provisions of the IPC
against the plaintiff and its Managing Director, Delhi. The
Plaintiff alleges that the said complaint was dismissed vide
th
order dated 24 March, 2007 as a consequence of which
the plaintiff claimed a sum of Rs.76,03,821/- along with
the interest @12% from the defendant which was allegedly
not at all paid by the defendant to the plaintiff. On the
conspectus of these broad facts, the plaintiff chose to file
the present suit for recovery of damages of
Rs.5,00,00,000/- against the defendant. It also sought
decree of mandatory injunction for restraining the
defendant from causing any damage or harming the
goodwill of the plaintiff. The suit in paragraph 96
contained the cause of action clause as under:
“96. That the cause of action arose on
09.09.2005 when the defendant first wrote to
the plaintiff for the shipment from Neustadt of
Sirpur. The cause of action arose on every
date that the plaintiff subsequently
communicated to the defendant in connection
with the shipments. The cause of action again
arose on every occasion when the demand for a
sum of Rs.76,03,821/- was made on the
defendant and the defendant instead of paying
the due sum, started to level and impute false
allegations on the plaintiff with an intent to
disrepute the plaintiff in the market so that it
suffers in its business. The cause of action
again arose when the defendant did not return
bare containers to the plaintiff on time and
CS(OS) No.844/2008 Page 3 of 8
forced the plaintiff to agree to their demands
for returning containers. The
cause of action further arose on 27.03.2006
when the plaintiff filed a false criminal case,
devoid of merits, against the plaintiff filed a
false criminal case, devoid of merits, against
the plaintiff to coerce, blackmail and take
undue advantage of plaintiff. The cause of
action further arose on 24.03.2006 when the
false and baseless complaint filed by the
defendant was dismissed by the learned
ACMM. The cause of action is continuous one
and subsists as the defendant is continuing
with its malafide intent of ill-reputing and
harming image and goodwill of the plaintiff and
causing loss in business.”
th
4. The matter was listed for the first time on 6 May, 2008
when the Court asked the learned counsel for the plaintiff
to examine the position regarding the maintainability of the
suit in the light of the provisions of Limitation Act. The
th
matter was adjourned to 28 May, 2008 on which date
further time was sought by the learned counsel for the
plaintiff and the matter was adjourned to 03.09.2008
thereafter adjournments were sought by the learned
counsel for the plaintiff. On 22.09.2008 the IA bearing no.
6769/2009 under section 151 CPC seeking condonation of
delay in refiling the plaint but it was renotified for
10.11.2008. On 10.11.2008 notice was issued to the
defendant whereupon the pleadings of the said IA have
been completed and the matter has been listed today for
consideration of the said IA to see as to whether the present
suit is maintainable in the light of the provisions of the
Limitation Act.
CS(OS) No.844/2008 Page 4 of 8
5. The learned proxy counsel for the plaintiff has submitted
that Mr. Aman Vachher is busy in Supreme Court in some
long cause matter, and therefore, requests for an
adjournment.
6. A perusal of the order sheet shows that notice on the main
suit has still not been issued and almost two years have
elapsed and the question of maintainability of the suit itself
on the anvil limitation is still to be dealt with. I find myself
unable to accede to the request of the learned counsel for
the plaintiff for adjournment of the matters.
7. I have heard the learned counsel for the defendant as well
as the learned proxy counsel for the plaintiff and proceeded
ahead to decide the matter.
8. The issue which needs to be considered is two fold. First,
whether the suit which was filed on 09.10.2007 on the
basis of averments purported to have been made in the
plaint with regard to cause of action was within limitation
and if not whether the period of 204 days which the
plaintiff has taken in re-filing the suit can be condoned by
this Court in exercise of the inherent powers under Section
151 CPC.
9. A perusal of the entire suit and the prayer of the plaintiff
essentially shows that the said suit is for the recovery of
damages of Rs.5,00,00,000/- for which the period of
limitation which has been prescribed under Article 74 or 79
is one year from the date of libel or one year from the date
CS(OS) No.844/2008 Page 5 of 8
of distress. The plaintiff himself in his cause of action
para states that the said cause of action accrues to the
plaintiff for the first time on 26.03.2006. If the period of
limitation is to be reckoned from 27.03.2006 the said
period of limitation of one year would come to end on
26.06.2007 while as admittedly the plaint has been filed by
the plaintiff on 09.10.2007, and therefore, on the face of it
the suit of the plaintiff with regard to its main relief of
claiming damages under tort law is barred by limitation.
10. It may be further pertinent to mention here that although
the delay which a party may cause in filing an appeal or an
application can be condoned under Section 5 of the
Limitation Act but Section 3 clearly bars the filing of a suit
or entertaining a suit which is hit by limitation. Section 5
of the Limitation Act does not apply to the suit as the word
“suit” is omitted by the legislature in the language of the
said section. Therefore, delay in filing the suit cannot be
condoned by invoking Section 5 of the Limitation Act, much
less the same can be done by resorting to Section 151 of
the CPC.
11. In addition to this, it may be pertinent here to mention that
a suit is said to be instituted in terms of the Section 3 (2) of
the Limitation Act only when it is instituted in an ordinary
case where the plaint is presented to a proper officer. A
plaint is presented to a proper officer only if it is having
appropriate ad-valorem court fees paid on the same or in
CS(OS) No.844/2008 Page 6 of 8
case the appropriate Court fees on the suit is not paid,
there is an application under Section 149 CPC seeking
enlargement of time to pay deficient court fees.
12. In the instant case, the contention of the learned counsel
for the plaintiff is that the suit was presented originally on
09.10.2007. Objections were raised regarding the
maintainability of the suit because proper ad valorem court
fees was not paid. The learned counsel for the defendant
in his reply to the application filed by the plaintiff under
Section 151 CPC has raised a ground of non-payment of ad
valorem court fees so as to urge that originally filing of the
suit on 09.10.2007 itself could not be treated as valid filing,
therefore, suit was barred by limitation. The plaintiff has
sought to give an explanation that the court fees was
actually paid to the clerk for purchase of court fees who on
account of inadvertent mistake has forgotten to purchase
the same. This explanation does not help the plaintiff to
bring the suit within limitation. Further, the refiling has
been done after 204 days which clearly shows that there
was a complete negligence on the part of the plaintiff by not
filing the suit in time but even the refiling which is
normally to be done within a period of one week, according
to the High Court Practice and Direction, it has been done
after 204 days, which is again exceeding the stipulated
period of one week, the entire period will be counted
towards original delay, if the filing is done after more than
CS(OS) No.844/2008 Page 7 of 8
one week or so that the initial filing is assumed to have
been done on the day when the refilling is done. If this
format is followed then the filing in this case is not
assumed to have been done on 09.10.2007 but 204 days
latter and this delay of 204 days cannot be condoned. The
explanation which has been furnished by the plaintiff is
totally unbelievable.
13. I am of the considered opinion that since the suit is for
recovery of Rs. 5,00,00,000/- it should have been filed
within a period of one year from the date of accrual of
cause of action and if calculated the same on the basis of
the averments made by the plaintiff in the plaint then the
said period of limitation have would come to an end on
26.03.2007. Since the suit itself has not been filed within
the period of limitation, subsequent period of 204 days
cannot be condoned and the suit is dismissed as barred by
limitation. All the pending IAs are also dismissed.
V.K. SHALI, J.
February 02, 2010
KP
CS(OS) No.844/2008 Page 8 of 8
+ IA No. 6769/2008 in CS(OS) No. 844/2008
Date of Decision : 02.02.2010
Schenker India Pvt. Ltd. …… Plaintiff
Through: Mr. V. K. Gupta,
Advocate.
Versus
Sirpur Paper Mills Ltd. …… Defendant
Through: Mr. Anil Gera, Advocate.
CORAM :
HON’BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
V.K. SHALI, J.
1. This order shall dispose of the application filed by the
plaintiff bearing no. 6769/2008 under Section 151 CPC of
the Limitation Act for condoning the delay of 204 days in
refiling the suit.
2. Briefly stated the facts of the case are that the plaintiff filed
a suit against the defendant for damages of
Rs.5,00,00,000/- and for permanent injunction. It was
alleged, in the suit that the plaintiff is a wholly owned
subsidiary of Schenker AG, Germany and is engaged in the
business of logistics. The plaintiff was alleged to have been
carrying on business at international and domestic freight
CS(OS) No.844/2008 Page 1 of 8
transporters as air cargo, shipping, chartering,
consolidation, forwarding, customs clearing and travel
agents etc. It is alleged that the plaintiff came and talked
to the defendant at its office in Delhi on 09.09.2005. The
defendant vide an e-mail on the same date sought to
engage the services of the plaintiff for providing such
logistic facilities. The defendant accepted shipment made
in respect of the following goods
a. Material-Second Hand paper machine
b. Container requirement etc.
3. The sum and substance of the transaction between the
plaintiff and the defendant was that the defendant is
running a paper mill at Sirpur (Hyderabad) and in the
course of its business it had purchased heavy duty
machine from Germany and the same was to be
transported by the plaintiff from Germany to India finally at
Sirpur. During the course of this transaction there were
allegations and counter allegations of breach of various
obligations on the part of respective sides. The case of the
defendant was that the plaintiff had not released some
containers which necessitated filing of a suit for injunction
against the plaintiff as a consequence of which though the
machinery was released by the plaintiff to the defendant,
however, the plaintiff claimed that in the process they were
defamed on account of various e-mail and other acts of
commission and omission on the part of the defendant. It
CS(OS) No.844/2008 Page 2 of 8
is also alleged by the plaintiff that the defendant had with a
view to pressurize and blackmail the plaintiff filed a
criminal complaint under Section 200 Cr.P.C. for
registration of an FIR under various provisions of the IPC
against the plaintiff and its Managing Director, Delhi. The
Plaintiff alleges that the said complaint was dismissed vide
th
order dated 24 March, 2007 as a consequence of which
the plaintiff claimed a sum of Rs.76,03,821/- along with
the interest @12% from the defendant which was allegedly
not at all paid by the defendant to the plaintiff. On the
conspectus of these broad facts, the plaintiff chose to file
the present suit for recovery of damages of
Rs.5,00,00,000/- against the defendant. It also sought
decree of mandatory injunction for restraining the
defendant from causing any damage or harming the
goodwill of the plaintiff. The suit in paragraph 96
contained the cause of action clause as under:
“96. That the cause of action arose on
09.09.2005 when the defendant first wrote to
the plaintiff for the shipment from Neustadt of
Sirpur. The cause of action arose on every
date that the plaintiff subsequently
communicated to the defendant in connection
with the shipments. The cause of action again
arose on every occasion when the demand for a
sum of Rs.76,03,821/- was made on the
defendant and the defendant instead of paying
the due sum, started to level and impute false
allegations on the plaintiff with an intent to
disrepute the plaintiff in the market so that it
suffers in its business. The cause of action
again arose when the defendant did not return
bare containers to the plaintiff on time and
CS(OS) No.844/2008 Page 3 of 8
forced the plaintiff to agree to their demands
for returning containers. The
cause of action further arose on 27.03.2006
when the plaintiff filed a false criminal case,
devoid of merits, against the plaintiff filed a
false criminal case, devoid of merits, against
the plaintiff to coerce, blackmail and take
undue advantage of plaintiff. The cause of
action further arose on 24.03.2006 when the
false and baseless complaint filed by the
defendant was dismissed by the learned
ACMM. The cause of action is continuous one
and subsists as the defendant is continuing
with its malafide intent of ill-reputing and
harming image and goodwill of the plaintiff and
causing loss in business.”
th
4. The matter was listed for the first time on 6 May, 2008
when the Court asked the learned counsel for the plaintiff
to examine the position regarding the maintainability of the
suit in the light of the provisions of Limitation Act. The
th
matter was adjourned to 28 May, 2008 on which date
further time was sought by the learned counsel for the
plaintiff and the matter was adjourned to 03.09.2008
thereafter adjournments were sought by the learned
counsel for the plaintiff. On 22.09.2008 the IA bearing no.
6769/2009 under section 151 CPC seeking condonation of
delay in refiling the plaint but it was renotified for
10.11.2008. On 10.11.2008 notice was issued to the
defendant whereupon the pleadings of the said IA have
been completed and the matter has been listed today for
consideration of the said IA to see as to whether the present
suit is maintainable in the light of the provisions of the
Limitation Act.
CS(OS) No.844/2008 Page 4 of 8
5. The learned proxy counsel for the plaintiff has submitted
that Mr. Aman Vachher is busy in Supreme Court in some
long cause matter, and therefore, requests for an
adjournment.
6. A perusal of the order sheet shows that notice on the main
suit has still not been issued and almost two years have
elapsed and the question of maintainability of the suit itself
on the anvil limitation is still to be dealt with. I find myself
unable to accede to the request of the learned counsel for
the plaintiff for adjournment of the matters.
7. I have heard the learned counsel for the defendant as well
as the learned proxy counsel for the plaintiff and proceeded
ahead to decide the matter.
8. The issue which needs to be considered is two fold. First,
whether the suit which was filed on 09.10.2007 on the
basis of averments purported to have been made in the
plaint with regard to cause of action was within limitation
and if not whether the period of 204 days which the
plaintiff has taken in re-filing the suit can be condoned by
this Court in exercise of the inherent powers under Section
151 CPC.
9. A perusal of the entire suit and the prayer of the plaintiff
essentially shows that the said suit is for the recovery of
damages of Rs.5,00,00,000/- for which the period of
limitation which has been prescribed under Article 74 or 79
is one year from the date of libel or one year from the date
CS(OS) No.844/2008 Page 5 of 8
of distress. The plaintiff himself in his cause of action
para states that the said cause of action accrues to the
plaintiff for the first time on 26.03.2006. If the period of
limitation is to be reckoned from 27.03.2006 the said
period of limitation of one year would come to end on
26.06.2007 while as admittedly the plaint has been filed by
the plaintiff on 09.10.2007, and therefore, on the face of it
the suit of the plaintiff with regard to its main relief of
claiming damages under tort law is barred by limitation.
10. It may be further pertinent to mention here that although
the delay which a party may cause in filing an appeal or an
application can be condoned under Section 5 of the
Limitation Act but Section 3 clearly bars the filing of a suit
or entertaining a suit which is hit by limitation. Section 5
of the Limitation Act does not apply to the suit as the word
“suit” is omitted by the legislature in the language of the
said section. Therefore, delay in filing the suit cannot be
condoned by invoking Section 5 of the Limitation Act, much
less the same can be done by resorting to Section 151 of
the CPC.
11. In addition to this, it may be pertinent here to mention that
a suit is said to be instituted in terms of the Section 3 (2) of
the Limitation Act only when it is instituted in an ordinary
case where the plaint is presented to a proper officer. A
plaint is presented to a proper officer only if it is having
appropriate ad-valorem court fees paid on the same or in
CS(OS) No.844/2008 Page 6 of 8
case the appropriate Court fees on the suit is not paid,
there is an application under Section 149 CPC seeking
enlargement of time to pay deficient court fees.
12. In the instant case, the contention of the learned counsel
for the plaintiff is that the suit was presented originally on
09.10.2007. Objections were raised regarding the
maintainability of the suit because proper ad valorem court
fees was not paid. The learned counsel for the defendant
in his reply to the application filed by the plaintiff under
Section 151 CPC has raised a ground of non-payment of ad
valorem court fees so as to urge that originally filing of the
suit on 09.10.2007 itself could not be treated as valid filing,
therefore, suit was barred by limitation. The plaintiff has
sought to give an explanation that the court fees was
actually paid to the clerk for purchase of court fees who on
account of inadvertent mistake has forgotten to purchase
the same. This explanation does not help the plaintiff to
bring the suit within limitation. Further, the refiling has
been done after 204 days which clearly shows that there
was a complete negligence on the part of the plaintiff by not
filing the suit in time but even the refiling which is
normally to be done within a period of one week, according
to the High Court Practice and Direction, it has been done
after 204 days, which is again exceeding the stipulated
period of one week, the entire period will be counted
towards original delay, if the filing is done after more than
CS(OS) No.844/2008 Page 7 of 8
one week or so that the initial filing is assumed to have
been done on the day when the refilling is done. If this
format is followed then the filing in this case is not
assumed to have been done on 09.10.2007 but 204 days
latter and this delay of 204 days cannot be condoned. The
explanation which has been furnished by the plaintiff is
totally unbelievable.
13. I am of the considered opinion that since the suit is for
recovery of Rs. 5,00,00,000/- it should have been filed
within a period of one year from the date of accrual of
cause of action and if calculated the same on the basis of
the averments made by the plaintiff in the plaint then the
said period of limitation have would come to an end on
26.03.2007. Since the suit itself has not been filed within
the period of limitation, subsequent period of 204 days
cannot be condoned and the suit is dismissed as barred by
limitation. All the pending IAs are also dismissed.
V.K. SHALI, J.
February 02, 2010
KP
CS(OS) No.844/2008 Page 8 of 8