Delhi High Court
M/S Kamawal Housing Pvt. Ltd. vs V.P. Tyagi & Ors. on 9 December, 2015
Author: Badar Durrez Ahmed
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 09.12.2015
+ FAO (OS) No. 367/2015 & CM No. 12138/2015
M/S KAMAWAL HOUSING PVT. LTD. .... Appellant
versus
V.P. TYAGI & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Arvind Chaudhary, Advocate.
For the Respondents : Mr Arjun Singh Bhati, Advocate
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This appeal is directed against the order dated 07.05.2015 passed
by a learned Single Judge of this Court whereby the defendant/appellant's
application under Order VII Rule 11 CPC being IA No. 18280/2014,
raised on the point of limitation, was rejected. At the same time, while
framing issues in the suit, the learned Single Judge did not frame any
issue on limitation in the following manner:-
"This Court has already answered the application under
Order VII Rule 11 CPC dismissing the plea of limitation
sought to be set up by the defendant. No such separate
issue on limitation has been framed."
2. We have heard the counsel for the parties. We may point out that
the consideration of an application under Order VII Rule 11 CPC is based
entirely on the averments made in the plaint and on the basis of
documents accompanying the plaint without any reference to the defence
taken by the defendant in the written statement. Therefore, to conclude
that because the plea of limitation for the purposes of Order VII Rule 11
CPC has been rejected, no issue of limitation can be framed based upon
the averments made in the plaint and the written statement when a
specific plea is raised on limitation, is not correct in our view.
3. From a reading of the pleadings, we find that a specific plea with
regard to limitation has been raised by the defendant, inter-alia, in
paragraph 1 of the Preliminary Objections contained in the written
statement.
4. The learned counsel for the respondents/plaintiffs submitted that
earlier a winding up petition had been filed by the respondents/plaintiffs
before the Company Court. The winding up petition was dismissed as
withdrawn by virtue of the order dated 14.05.2012. The said order passed
in the company petition bearing No. 304/2008 reads as under:-
"Today, Mr Arvind Chaudhary, learned counsel for the
respondent states that the respondent without prejudice to
its rights and contentions has no objection to the status
quo order dated 4th November, 2008 being continued by
this Court for a period of one year provided the petitioner
files recovery proceedings in accordance with law within
a period of four weeks.
Mr Vivek Singh, learned counsel for the
petitioners, on instructions of Mr V.P. Tyagi, petitioner
no. 1 who is personally present in Court, accepts the
aforesaid offer provided the time spent in prosecution the
present petition along with the aforesaid period of four
weeks is excluded while computing the period of
limitation for the recovery proceedings. Learned counsel
for the respondent has no objection to the same.
The aforesaid statements made by both the counsel
are accepted by this Court and both the parties are held
bound by the same.
Accordingly, with the consent of the parties, the
present petition is disposed of with a direction to the
petitioner to file recovery proceedings in accordance with
law within a period of four weeks. The interim status quo
order dated 4th November, 2008 passed by this Court
shall continue for a period of one year. It is made clear
that the status quo order would either be continued or
discontinued or varied or modified by the competent
court. It is clarified that in the event the suit is not filed
within a period of four weeks, the status quo order dated
4th November, 2008 shall stand vacated.
Needless to say, this order is without prejudice to
the rights and contentions of both the parties. Further, the
competent court is directed to decide the matter without
being influenced by any observations of this Court.
The amount of Rs. 50,000/- deposited by the
petitioner shall be refunded to the petitioner along with
interest, if any. For this purpose, list the matter before the
Registrar on 25th May, 2012.
With the aforesaid observations, the present
petition and pending applications stand disposed off."
(underlining added)
5. On the basis of the said order, the learned counsel for the
respondents submitted that the appellant had conceded on the point of
limitation. Therefore, no issue with regard to limitation could be raised.
The learned counsel for appellant draws our attention to the said order
and particularly to the second paragraph where it has been stated that the
offer made was that the time spent in prosecuting the winding up petition
along with another period of 4 weeks could be excluded "while
computing the period of limitation for the recovery proceedings." It is
submitted by the learned counsel for the appellant that the concession was
for exclusion of the time spent in the Company Court and a further period
of 4 weeks and was not a concession with regard to entire period of
limitation as such, which in any event, had to be computed after
excluding the said period in the said paragraph. The learned counsel for
the appellant submitted, and we entirely agree with the said submission,
that the period of limitation was yet to be computed for the purpose of
recovery proceedings. And, that period had to be computed by the court
in which the recovery proceedings were initiated.
6. Coming back to the impugned order, the learned Single Judge had
not framed an issue on limitation merely because the plea taken in the
application under Order VII Rule 11 CPC was rejected. In our view, the
correct approach in law, if a specific plea had been taken with regard to
limitation in the plaint and the same is disputed by the defendant in the
written statement, is that an issue would have to be framed. In fact, even
if the plea of limitation is not taken by any of the parties, it is incumbent
upon the court to examine whether a particular suit is within limitation or
not.
7. Consequently, we allow this appeal to the extent of framing the
following additional issue:-
"1. Whether the suit is within limitation? OPP."
8. This issue be treated as issue no. 1 and the existing issue nos. 1 to 4
be renumbered as issues no. 2 to 5, respectively.
9. The appeal stands allowed to the aforesaid extent. The cost of Rs.
10,000/- also stands waived off.
BADAR DURREZ AHMED, J
DECEMBER 09, 2015 SANJEEV SACHDEVA, J
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