Rahul Mohindra vs Shiv Naresh Sports Pvt Ltd
2015 Latest Caselaw 7542 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Order delivered on: 5th October, 2015

+                        CS (OS) No.296/2014

       RAHUL MOHINDRA                                     ..... Plaintiff
                   Through           Mr.Deepak Khadaria, Adv.

                         versus

       SHIV NARESH SPORTS PVT LTD              ..... Defendant
                    Through Mr.Hrishikesh Baruah, Adv. with
                            Mr.Hemant Raj & Mr.Parth
                            Goswami, Advs.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

I.A. No.15818/2014 (u/o VII R.11 (d) CPC, by defendant)

1. By way of this order I propose to decide the above said application filed by the defendant under Order VII Rule 11(d) read with Section 151 CPC.

2. The plaintiff filed the suit for recovery of Rs.96,91,319/- against the defendant. It is stated in the plaint that the plaintiff is the sole proprietor of the firm, namely, M/s Mohinder Pal Mohindra engaged in the business of development and civil construction as a Civil Contractor, Building and Roads (B&R). The defendant was represented through Mr.Shiv P. Singh, Managing Director of the defendant-Company and stated himself as an enlisted Contractor with CPWD/PWD and offered the work order as a sub-contractor for

execution of the civil work and ancillary work with respect to the construction of base work for tracks in various stadiums in Delhi for the purpose of Commonwealth Games, 2010. The said offer was made by the defendant to the plaintiff in August, 2009. It was represented to the plaintiff that the said work was awarded to the defendant through PWD/CPWD and other Departments of Delhi. It was stated by him that the said work of civil construction and ancillary work was to be completed for Commonwealth Games, 2010.

3. It is further stated that there were many works to be carried out by the plaintiff, which were ultimately completed in the month of March, 2010. Inspite of making the payment, the Managing Director of the defendant threatened the plaintiff on 27th October, 2010 from his Mobile No.9810037870 not to demand the payment at all. The plaintiff thereafter filed various applications under RTI with the Department/PWD to enquire about the status of payment made by the department to the defendant. By letter dated 25th November, 2010, it was informed to the plaintiff that various payments were made by the department to the defendant regarding the running bills raised by the defendant in respect of Thyagraj Stadium. The plaintiff also received the information under the RTI Act on the same date that certain payments were released by the department to the defendant pertaining to Chhatrasal Stadium.

4. The case of the plaintiff is that despite of having received the payment, the defendant did not pay the amount which was due as on 9th September, 2010 to the tune of Rs.68,89,940.53/-. On this amount, the plaintiff had calculated the rate of interest @ 12% per annum from 9th September, 2010 till 9th September, 2013 for a sum of

Rs.24,80,379/- and also the interest from 9th September 2013 till 28th January, 2014, i.e. four months and 20 days, to the tune of Rs.3,21,000/-. Thus, the suit for total composite amount of Rs.96,91,319/- has been filed by the plaintiff. In para 26 of the plaint, various dates of cause of action accrued in favour of the plaintiff have been filed. The suit was filed before Court on 29th January, 2014.

5. Upon service, the defendant filed the present application under Order VII Rule 11(d) CPC. It is averred in the application that the work in the stadiums was completed in the month of March, 2010. Therefore, the limitation period would start from the month of March, 2010 and would end in March, 2013. The suit was filed on 29th January, 2014. Therefore, the same is barred by limitation. Learned counsel for the defendant has relied upon Article 18 of the Limitation Act in support of his submissions. Counsel has also relied upon the following judgments:-

(a) State of Orissa v. Adikanda Patra AIR 1999 Ori 112 (para 6 & 7);

(b) Ashok Kumar v. State of A.P. 2005 (5) ALD 584 (para 13);

(c) Minu F.D. Mehta v. Ratnasale Madavrao Vakil 2001 (1) Mh. LJ 881 (para 4, para 10 & 11);

(d) Bindra Builders v. Delhi Development Authority 2012 (192) DLT 565 (para 19-20).

6. In the present case, though the work was done on the instructions of the defendant and completed in March, 2010, the quantum of the work was never measured by the defendant despite various requests made by the plaintiff. The joint

measurement for determining the amount never took place and the plaintiff was constrained to raise the final bill on his own, in September, 2010, which was never responded by the defendant till February, 2011. Thus, it cannot be said that Article 18 would be applicable in the present case as the price was never determined/quantified unless the joint measurement was carried out and recorded by both the parties. In the present case, the final bill was raised in September, 2010 and the denial of payment came from the defendant's side in writing only on 2nd February, 2011.

7. The Supreme Court in Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express (2006) 3 SCC 100 has held, the averments in the plaint have to be taken to be true and the fact that the case of the plaintiff is weak and the chances of success bleak cannot weigh with the Courts while deciding the same. The defence raised by the defendant is to be ignored at the said stage. Rejection of the plaint is a serious matter as it non-suits the plaintiff and kills the cause of action. Therefore, without satisfaction of requirement of Order VII Rule 11 CPC, the plaint cannot be rejected. Reference in this regard can be made to a detailed discussion in the judgment of this Court in Sh. Gopal Johari v. Sh. Anup Diwan 2012 (131) DRJ

98. It was further held that at the stage of Order VII Rule 11 of the CPC, the Court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact.

8. The Division Bench of this Court in Decor India (P) Ltd. v. Delhi Stock Exchange Association Ltd., 2013(1) AD (Delhi) 456, wherein it was held as under:-

"23......... A cause of action would be the entire bundle of facts, if traversed by the opposite party, required to be proved to sustain a claim. But a cause of action to sue would be when the right to sue accrues i.e. a right is infringed or threatened to be infringed. The right to sue would not accrue at every time when the various facts constituting the cause of action come into being. The two are totally different concepts.

24. Article 113 of the Limitation Act, 1963 prescribes a limitation of three years. The commencement of the period of limitation is with reference to: When the right to sue accrues.

30. It is well-settled principle of law that where a bare reading of the plaint reveals that the suit is ex facie barred by limitation, without any further enquiry, then alone the Court can invoke the powers so as to arrive at the conclusion that the suit is barred by limitation. However, the same very issue of limitation if requires a fact finding enquiry alongside perusal of the plaint, then the same very question becomes a mixed question of fact and law which may require enquiry during the trial."

Thus, it was held that question of limitation is a mixed question of law and fact and ex facie on reading of the plaint, the suit cannot be held to be barred by limitation.

9. The leading decision on the subject is that of the Judicial Committee in Mt. Bolo v. Mt. Koklan, AIR 1930 PC 270, wherein Sir Binod Mitter observed as under:

"There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."

10. The judgments cited by the counsel for the defendant are not applicable to the facts of the present case. In all the judgments cited by the defendant, the price was determined/fixed by the parties for the applicability of Article 18 of the Limitation Act. In State of Orissa (supra), the work was done on 12 th January, 1976 and the measurement was also carried out on 13 th January, 1976 itself and recorded in the measurement book. Article 18 of the Limitation Act would be applicable if the price of the work done is determined. In any event, the Court had also applied Article 113 of the Limitation Act and it was only thereafter, that it was held that the suit appears to be barred by time after the evidence was recorded. It is a settled law that question of limitation may be a mix question of fact and law when ex facie reading of the plaint does not denote the same to be barred by time. In Balasaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors., (2006) 5 SCC 658, it was held that:-

"8. After hearing counsel for the parties, going through the plaint, application under Order VII Rule 11(d) CPC and the judgments of the trial Court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial Court that a plaint cannot be rejected under Order VII Rule 11(d) of the Code of Civil Procedure."

11. In Bindra Builders (supra), relied upon by the defendant, it is stated that the said case pertains to Arbitral Award and the objections were filed under Section 37. In that case, the work was completed and final bill was raised on 27 th December, 1982 and the Arbitration Clause was invoked on 30 th September, 1994 and further the plaintiff made its claim in May, 1996. It was in these circumstances that it was held that the claim was barred by limitation.

12. In the present case, after the completion of the work in March, 2010, various requests were made by the plaintiff calling upon the defendant and his engineering staff to come and prepare the final bill by taking joint measurement. It is the case of the plaintiff in the plaint that the defendant purposely avoided the joint measurement with the malafide intentions so as to delay the preparation of final bill. At last, after waiting for more than 5 months, the plaintiff was constrained to prepare the final bill and the same was sent to the defendant vide letter dated 9 th September, 2010. Therefore, it cannot be said that there is any delay from the part of the plaintiff either in submitting the final bill or raising the claim beyond limitation.

Therefore, in the present case, Article 18 would not be applicable as the total price was never fixed and it would depend on the joint measurements by the parties. Since, the price was never determined or fixed, Article 113 would be applicable. There is a fine distinction between Article 18 and Article 113 of the Limitation Act.

13. In the other two cases referred by the learned counsel for the defendant, being the judgment from Bombay High Court and Andhra Pradesh High Court, the price was fixed/quantified by the parties and therefore, Article 18 of the Limitation Act was invoked.

14. In the present case, Article 18 of the Limitation Act does not apply as the pre-condition for the application of Article 18 is that the price must be determined/fixed by the parties.

15. In view of the above said reasons and circumstances, the prayer made in the application cannot be allowed and the plaint cannot be rejected at the outset. However, the objection raised by the defendant about the limitation would remain intact, as the learned counsel for the plaintiff has no objection if the issues in this regard be framed.

The application is accordingly dismissed.

CS (OS) No.296/2014 From the pleadings, the following issues are framed:-

1. Whether the suit is barred by limitation? OPD

2. Whether there is any privity of contract between the parties? OPD

3. Whether the plaintiff has executed the work in two stadiums namely Thyagraj and Chhatrasal Stadium pertaining to base work consisting of WMM (Wet Mixed Macadum), BM (Bituminus Macadum) and BC (Bituminus Concrete) as per the formula provided by the plaintiff? OPP

4. Whether the defendant has made a part payment towards the mobilization of machineries as well as towards the work executed by the plaintiff? OPD

5. Whether the plaintiff is entitled to claim the payment as per

the final bill raised on 09.09.2010? OPP

6. Whether the plaintiff is entitled for a decree of sum of Rs.96,91,319/- alongwith interest, if any? OPP

7. Relief.

The parties shall file their lists of witnesses within four weeks from today. The plaintiff shall adduce evidence by way of affidavit(s) within eight weeks from today.

List before the Joint Registrar on 15th January, 2016.

(MANMOHAN SINGH) JUDGE OCTOBER 05, 2015