Bombay High Court
Colgate-Palmolive (India) Ltd vs Corporation on 17 November, 2011
Bench: K.U. Chandiwal
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.
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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/
