Calcutta High Court
Mstc Ltd vs Export Credit Guarantee ... on 7 November, 2022
ORDER SHEET
O-4 & 5
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVL JURISDICTION
[COMMERCIAL DIVISION]
IA No. GA/4/2022
In
CS/109/2021
MSTC LTD.
VERSUS
EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD.
IA No. GA/3/2022
In
CS/109/2021
MSTC LTD.
VERSUS
EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LIMITED
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 7th November, 2022.
Appearance:
Mr. Ratnanko Banerjee, Sr. Adv.
Mr. Bomi Patel, Adv.
Mr. Soumalya Ganguli, Adv.
Mr. Naval Sharma, Adv.
Mr. Saket Satapathy, Adv.
Ms. Priyal Shah, Adv.
For the Applicant/Original Defendant.
Mr. Anindya Kumar Mitra, Sr. Adv.
Ms. Noelle Banerjee, Adv.
Mr. Dipak Dey, Adv.
Mr. Dipanjan Dey, Adv.
For the Plaintiff/Respondent.
Re: IA No. GA/3/2022:
The Court :- This is an application under the provisions of Order 7 Rule
11 of the Code of Civil Procedure, 1908 taken out by the sole defendant in this
suit inter alia for rejection of plaint and/or dismissal of suit. The defendant says
that the repudiation of plaintiff's claim by the defendant took place on 14th May,
2010. The plaintiff thereafter approached the National Consumer Forum (NCF) on
26th November, 2010. The said National Consumer Forum (NCF) by an order
dated 16th April, 2014 dismissed the claim so made by the plaintiff without any
order as to costs with liberty to the plaintiff to approach the Civil Court or any
other forum having the jurisdiction to get redressal of the grievance and the
plaintiff was also permitted to seek help on the limitation point in terms of the
judgment reported in (1995) 3 SCC 583 (Laxmi Engineering Works-Vs-P.S.G.
Industrial Institute). Being aggrieved by and dis-sastisfied with the order of
NCF, the plaintiff approached the Honble Supreme Court by filing civil appeal
bearing No(s). 7327-7362 of 2014. The civil appeals were filed before the Hon'ble
Supreme Court on 30th June, 2014. The said civil appeals were ultimately
disposed of by an order dated 24th November, 2015. It will appear from the said
order dated 24th November, 2015 read in consonance with the previous orders
passed therein that the civil appeals were disposed of with the observations that
it is open for the parties to get the disputes resolved through the arbitration.
The defendant further submits that in terms of the said order dated
24th November, 2015 the plaintiff approached the Permanent Machinery of
Arbitration (PMA) on 13th January, 2016. The matter was heard from time to time
by PMA and ultimately was adjourned sine die by an order dated 24th November,
2017. Challenging the said order, the plaintiff filed an appeal before the Law
Secretary & Appellate Authority, Ministry of Law and Justice, Department of
Legal Affairs. The said appeal was dismissed on 22nd May, 2018 as not
maintainable. All on a sudden the plaintiff issued a pre-institution mediation
notice under the provisions of Section 12A of the Commercial Courts Act, 2015
on 29th January, 2021 which was duly replied by the defendant through its
advocate vide letter dated 24th February, 2021. Ultimately the plaintiff instituted
the above suit on or about 31st May, 2021. The defendant says that the suit is
barred by limitation and the plaint also does not disclose any cause of action.
On the ground of limitation the defendant says that the claim was repudiated in
2010. The issue thereafter was taken before the NCF and ultimately before the
Supreme Court when the order dated 24th November, 2015 was passed. The
plaintiff then approached the PMA and after expiry of about six years from the
order of the Supreme Court dated 24th November, 2015, instituted the above suit.
The suit as framed is governed by the provisions of Article 44(b) of the Limitation
Act, 1963 and as such has to be filed within three years from the date of accrual
of the cause of action, if any. The accrual of cause of action, if any, of the instant
case arose with the repudiation of the claim in 2020. Even if the benefit of the
continuance of the proceeding before the NCF and the Supreme Court is availed
for having proceeded before a Court within jurisdiction then also the suit has
been instituted much beyond three years from 24th November, 2015. The
defendant has relied upon two judgments reported in (2020) 7 SCC 366
(Dahiben-Versus-Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through
Legal Representatives And Others) and that reported in (2004) 3 SCC 172
(Pearlite Liners (P) Ltd.-Versus-Manorama Sirsi).
This application was taken up for hearing from time to time and was
decided to be heard without affidavits only by looking at the plaint and the
documents annexed thereto.
Responding to the arguments made by the defendant, it is submitted
on behalf of the plaintiff that no argument that the plaint does not disclose any
cause of action has been advanced by the defendant though point taken in the
petition. The only argument advanced is that the suit is barred by limitation. The
two judgments cited by the defendant according to the plaintiff does not answer
the point that the provisions of Order 7 Rule 11 of the Code of Civil Procedure,
1908 applies when an exclusion is claimed under Section 14 of the Limitation
Act, 1963. It is also submitted by the plaintiff that by disobeying the order of the
Hon'ble Supreme Court, the plaintiff could not have filed the suit and as such
had proceeded before the PMA, but after finding that no remedy is forthcoming
before PMA on being advised the plaintiff has instituted the above suit. The suit
was instituted after issuing notice for pre-institution mediation. The plaintiff is
also entitled to benefit of the orders passed by the Hon'ble Supreme Court
suspending the operation of limitation between 15th March, 2020 and 28th
February, 2020. The plaint according to the plaintiff discloses cause of action.
The defence of the defendant in the suit is also not to be considered while
deciding a demurrer application. The defendant has invited this Court to look
into its defence to rerject the plaint which is impermissible in law.
However, due to paucity of time, hearing could not be completed.
Let this application which is otherwise a chamber matter be taken up
with the other applications on 16th November, 2022 under the heading "New
Motion".
(ARINDAM MUKHERJEE, J.)
snn
