Schenker India Pvt. Ltd. vs Sirpur Paper Mills Ltd.
2010 Latest Caselaw 562 Del

*             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

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

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

order dated 24th 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

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."

4. The matter was listed for the first time on 6th 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

matter was adjourned to 28th 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.

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

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

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

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