Calcutta High Court
Emars Mining & Construction Pvt. ... vs Rail Pal Logistics Private ... on 21 June, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
CS 99 of 2016
IA No. GA 2 of 2023
Emars Mining & Construction Pvt. Ltd.
Versus
Rail Pal Logistics Private Limited
Mr. Suman Dutt
Mr. Paritosh Sinha
Mr. Saubhik Choudhury
Ms. Meenakshi Manot
Ms. Tapasika Bose
... for the plaintiff.
Mr. Rishad Medora
Mr. Prantik Garai
Mr. Meghajit Mukherjee
Ms. Priyanka Sharma
... for the defendant.
Hearing concluded on : 16.05.2023
Judgment on : 21.06.2023
2
Krishna Rao, J.:
1.
The defendant had filed the present application under Order 7, Rule 11
of the Code of Civil Procedure, 1908, praying for rejection of plaint on
the ground that the suit filed by the plaintiff for recovery of money is
barred by limitation.
2. Mr. Rishad Medora, learned Advocate representing the defendant
submits that as per the claim of the plaintiff a sum of Rs. 1,20,99,
274/- became due and payable and owing by the defendant to the
plaintiff on March 31st, 2011 and suit was filed only on April 5, 2016.
3. Mr. Medora submits that prior to filing the present suit, the plaintiff
has filed a petition under Sections 433 and 434 of the Companies Act,
1956 before the Hon'ble High Court being CP No. 834 of 2013 and in
the said petition, the plaintiff had relied upon the balance confirmation
issued by the defendant on September 8, 2010. He further submits that
the balance confirmation was till March 31, 2010 and the said winding
up petition was filed on December 18, 2013. He further informed this
Court that the Company Petition filed by the plaintiff was permanently
stayed by an order dated August 3, 2015.
4. Mr. Medora submits that the cause of action of the plaintiff has arisen
in the year 2009 and thus ex-facie suit filed by the plaintiff is barred by
limitation. He further submits that the plaintiff is not entitled to any
exclusion of time under the Limitation Act, 1908 for the time during
which the Company Petition was pending before the Company Court.
5. Mr. Medora submits that in the case of money suit, the period of
limitation is of three years from the date on which the said amount has
become due and according to the plaintiff, in Company Petition, the
said amount had become due and payable on March 31, 2010 and the
instant suit has been filed only on March 31, 2016 i.e. beyond the
period of three years from March 31, 2010 and thus the suit filed by
the plaintiff is barred by limitation.
6. Mr. Medora submits that Section 14 of The Limitation Act is not
applicable in the present case and has relied upon the following
decisions:
a. 1950 SCC 766 (Yeswant Deorao Deshmukh -vs-
Walchand Ramchand Kothari).
b. (2019) 10 SCC 750 (Jignesh Shah and Another -vs-
Union of India and Another).
c. (2021) 8 SCC 481 (Laxmi Pat Surana -vs- Union
Bank of India and Another).
d. AIR 2003 Del 252 (Anil Pratap Singh Chauhan -vs-
M/s Onida Savak Ltd. etc.).
7. Mr. Suman Dutt, learned Advocate representing the plaintiff submits
that the point of limitation is a mixed question of law and fact and as
such in the application filed by the plaintiff under Order VII Rule 11,
this Court cannot decide the point of limitation.
8. Mr. Dutt submits that in the month of January' 2014, the defendant
had filed a Money Suit No. 1825 of 2014 against the plaintiff for
recovery of an amount of Rs. 2,47,05,000/- from the plaintiff. Mr. Dutt
further submits that the defendant has admitted and acknowledged the
plaintiff's right, in the opposition of winding up petition in respect of
the said claim by wrongfully adjusting it with the purported above
mentioned money suit. He submits that the defendant has filed the said
money suit prior to filing of the opposition in the Company Petition.
9. Mr. Dutt further submits that the adjustment of the claim of the
plaintiff is evident from the affidavit-in-opposition in the winding up
proceeding filed by the defendant and thus the adjustment tantamount
to set off the claim of the plaintiff which in turn is an acknowledgement
under Section 18 of the Limitation Act, 1963. Mr. Dutt submits that for
the first time, the defendant had claimed the amount by filing Money
Suit No. 1825 of 2014 which was filed in the month of January' 2014
and thus the suit filed by the plaintiff is within the limitation period.
10. Mr. Dutt submits that till the filing of winding up application, there has
been no denial of the defendant's obligation to return the money to the
plaintiff. He submits that on reading of the agreement pleaded in
paragraphs 6(a) to (e), 8(i) and 8 (iii) and 9 to show that as on 31st
March, 2011, the plaintiff's claim is admitted.
11. Mr. Dutt submits that in paragraphs 6 and 7 of the plaint, the
plaintiff's claim in the suit has been denied as not payable on the
ground that a sum of Rs. 1.62 Crore is payable to the defendant by the
plaintiff and thus there is a case of acknowledgement under Section 18
of the Limitation Act, 1963. He submits that the defendant has
acknowledged the jural relationship between the parties as on the date
of such acknowledgement i.e. January, 2014 thus the limitation stands
extended for a further period of three years from January, 2014. He
further submits that in addition to the plaint in M.S. No. 1825 of 2014,
the defendant in the affidavit-in-opposition of the winding up petition
affirmed on 13th February, 2014 has acknowledged the claim of the
plaintiff, thus the suit is well within the period of limitation.
12. Heard the learned counsel for the respective parties, perused the
materials on record and the judgments relied by the petitioner.
13. In the present application, the only question whether the suit filed by
the plaintiff is barred by limitation or not. The plaintiff has filed the suit
against the defendant for recovery of an amount of Rs. 2,95,22,230/-
along with interest. As per the case of the plaintiff, the plaintiff is in the
business of mining, trading and export of Iron Ore. In the usual course
of business, the plaintiff requires railway rakes on regular basis for
transportation of Iron Ore from the mines to diverse ports in India from
where such iron ore is shipped for export. Some of these mines are
located in the State of Orrisa.
14. The Indian Railways have come up with several Wagon Investment
Schemes under which parties were awarded the facilities of guaranteed
supply of Railway Rakes. Under the then extent Wagon Investment
Scheme propounded by the Indian Railways, the defendant had agreed
to supply railway rakes and the plaintiff was interested that such
railway rakes could be placed for the usage of the plaintiff for
transportation of iron ore from the designated site in the State of Orrisa
to diverse ports for statement. In the month of February, 2009, the
plaintiff and the defendant have entered into an agreement for supply
of Railway rakes for transportation of the plaintiff's irone ore or from
earmarked mines in the State of Orrisa to designated ports when the
same would be unloaded and transferred to ship for export.
15. As per the agreement between the parties, both the parties have acted
upon and the plaintiff had placed advance requisition orders to the
defendant and on the basis of which rakes were supplied by the
defendant. The parties maintained a running and continuous account
in respect of the dealing and transactions relating to supply of the
rakes to the plaintiff under the said agreement. After the adjustment of
all monies received by the defendant from the plaintiff from time to time
again the consideration for the racks, a sum of Rs. 1,20,99,274/-
became due, payable and owing by the defendant to the plaintiff as on
March 31, 2011.
16. By letters dated November 16, 2011 and April 30, 2012, the plaintiff
has called upon the defendant to make payment of the above-
mentioned amount but the defendant has not given any reply to the
said notices. The plaintiff had also issued statutory notice dated
October 3, 2013 under Section 434 of the Companies Act calling upon
the defendant to pay the said amount. The defendant has not given any
reply to the said notice and accordingly the plaintiff has filed a
Company Petition before this Court under Sections 433, 434 and 439 of
the Companies Act, 1956. On August 3, 2015, the Hon'ble Company
Court had passed the following order:
"In this case, the petitioner has not relied on any
subsequent communication from the company to the
petitioner acknowledging receipt of the mail of January
19, 2011 where the petitioner asserted that it's
advanced remained with the company. In the absence
of such subsequent correspondence being relied upon
by the petitioner, it cannot be assessed on the basis of
the material no placed as to whether the claim of the
petitioner would be barred by limitation. Suffice it to say
that on the basis of the material disclosed, it does not
appear that the claim could have been pursued in
December, 2013 in respect of a deposit made in the year
2009 and which had been acknowledged by a
statement of company issued on September 8, 2010.
The claim of the petitioning creditor is relegated to
a suit. C.P. No. 834 of 2013 is permanently stayed."
17. The Supreme Court in the case of Jignesh Shah and Another
(Supra), held that:
"21. The aforesaid judgments correctly hold that a
suit for recovery based upon a cause of action that is
within limitation cannot in any manner impact the
separate and independent remedy of winding up
proceeding. In law, when time begins to run, it can only
be extended in the manner provided in the Limitation Act.
For example, an acknowledgement of liability under
Section 18 of the Limitation Act would certainly extend
the limitation period, but a suit for recovery, which is a
separate and independent proceeding distinct from the
remedy of winding up would, in no manner, impact the
limitation within which the winding up proceeding is to
be filed, by somehow keeping the debt alive for the
purpose of winding up proceeding."
18. The above judgment relied by the Supreme Court in the case of
Lakshmi Pat Surana (supra).
19. In view of the above judgments, the plaintiff cannot take the benefit of
exclusion of time during which the company petition was pending.
20. Order VII, Rule 6 of the Code of Civil Procedure, 1908 reads as follows:
"Rule 6: Grounds of Exemption from limitation law:
Where the suit is instituted after the expiration of
period prescribed by the law of limitation, the plaint
shall show the ground upon which exemption from such
law is claimed:
(PROVIDED that the court may permit the plaintiff to
claim exemption from the law of limitation on any
ground not set out in the plaint, if such ground is not
inconsistent with the grounds set out in the plaint)."
21. In the present case, the plaintiff has not disclosed about the suit filed
by the defendant against the plaintiff being M.S. No. 1825 of 2014
before the learned 2nd Civil Judge (Senior Division) at Alipore claiming
an amount of Rs. 1,62,00,000/- along with interest an amount of Rs.
85,05,000/- total amounting to Rs. 2,47,05,000/- in the month of
January, 2014 and the said claim is in connection with the same
transaction between the plaintiff and the defendant.
22. The defendant has filed the said suit against the plaintiff specific on the
ground that:
"4. The defendant failed and neglected to load or intent
for any rack whatsoever during the month of January
2011. Hence, the defendant became liable to pay
Rs.1.62 crores to the plaintiff the entire minimum
guaranteed for the month of January 2011.
,
6. On or about October 3, 2013, to avoid payment of
Rs.1.62 crores the defendant wrongfully and illegally
claim a refund of Rs.1,20, 99, 275/-."
23. From the aforesaid averments, it is clear that the defendant had also
filed a suit claiming an amount from the defendant in the year 2014
and now the plaintiff has filed the suit claiming an amount of Rs.
1,20,99,275/- along with interest and thus this Court is of the view
that though the plaintiff cannot take the benefit of exclusion of time
spent in the company petition but as per the claim raised by the
defendant in M.S. No. 1825 of 2014, there involved a mix question of
law and fact and as such at this stage, it would not be proper to
dismiss the suit on the ground of limitation as there is a claim and
counter claim of both the parties are pending for adjudication.
24. In the circumstances mentioned above G.A. 2 of 2023 is thus
dismissed.
(Krishna Rao, J.)
