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For limitation under Art. 113 it has to be seen when the right to sue accrues, not when the right to sue "first" accrues: SC

The SC on June 05, 2020 {Shakti Bhog Food Industries Ltd. vs The Central Bank of India & Anr.} held that it is well established position that the cause of action for filing a suit would consist of bundle of facts. Further, it was held that 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.

It was held by the Bench, comprising of Justice A.M. KHANWILKAR, Justice INDIRA BANERJEE & Justice DINESH MAHESHWARIthat 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. It was held 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. It was also held that this firm response from the respondent ­Bank could trigger the right of the appellant to sue the respondent­ Bank. It was held that 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. It was held that whether   this   plea   taken   by   the   appellant   is   genuine   and legitimate, would be a mixed question of fact and law, depending on the response of the respondents.

The central question before the SC was: whether the plaint as filed by the appellant could have been rejected by invoking Order VII Rule 11(d) of the CPC?  

The SC held as noticed from the trial Court judgment, it is evident that the trial Court did not make any attempt to analyse the plaint as per law. It was held that even the District Court dealing with first appeal and the High Court with second appeal omitted to do. It was held that it is the bounden duty of the Court to examine the plaint as a whole and not selected averments therein. 

The argument was raised before the SC that mere sending of letters cannot extend the period of limitation, and number of judgments were also referred. The SC held that Art 113 is differently worded, and also dealt & distinguished all the judgments cited by the respondents.

The SC negated   the   argument   that   exchange   of   letters   or correspondence   between   the   parties   cannot   be   the   basis   to extend the period of limitation. It was held by the SC that 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.

The SC held that 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). 

It was held that in the present case, 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.

It was held that taking overall view of the matter, therefore, the SC is 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 present case, rejecting the plaint in question under Order VII Rule 11(d) of the CPC, cannot be sustained.   As a result, the same were quashed and set aside. The appeal stood allowed.

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