Delhi High Court
M/S Themisis Medicare Ltd. vs M/S. Dynamic Labels And Packaging on 20 February, 2025
$~63
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20.02.2025
+ CM(M) 352/2025 & CM APPL. 10381/2025 STAY
M/S THEMISIS MEDICARE LTD. .....Petitioner
Through: Mr. Vaibhav, Advocate
versus
M/S. DYNAMIC LABELS AND PACKAGING .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT (ORAL)
RAVINDER DUDEJA, J.
1. This is a petition under Article 227 of the Constitution of India
challenging the orders dated 24.08.2015 and 14.11.2024 passed by the
learned District Judge, North Rohini Courts in CS DJ/58736/2016
whereby the application under Order VII Rule 11 CPC filed by the
petitioner has been dismissed.
2. In a nutshell, the brief facts are that the respondent filed a suit
for recovery of Rs.11,72,883/- against the petitioner claiming that the
petitioner had placed purchase orders and after satisfactory
completion, the respondent raised bills. Despite partial payment,
Rs.8,62,413/- remained due to the respondent.
3. The petitioner filed written statement objecting to the
maintainability of the suit claiming that it was barred by limitation as
the business transactions took place between April 2010 and June
2011 but the suit was filed in October 2014.
4. The trial court framed the issue of limitation as a preliminary
issue, and after hearing arguments ruled that the decision on the
question of limitation requires evidence, thereby dismissing the
petitioner's objection.
5. Subsequently, the petitioner filed an application under Order
VII Rule 11 CPC for rejection of the plaint on the ground of
limitation. Trial court dismissed the application on 14.11.2024 relying
on its previous order dated 24.08.2015. Feeling aggrieved by both the
orders, petitioner has filed the present petition challenging the same.
6. Learned counsel for the petitioner submits that the business
transactions between the petitioner and the respondent took place
between April 2010 to June 2011. Thus, the suit having been filed by
the respondent in the month of October 2014 is filed much beyond the
prescribed period of limitation of three years. Therefore, the suit is
barred by limitation and ought to have been rejected by the trial court.
7. In para 4 of its plaint, the respondent had specifically averred
that the statement of account in respect of the total outstanding bill of
the defendant was sent to the defendant by speed post on 04.10.2011
for its confirmation but the defendant did not point out any
discrepancy in the statement regarding the outstanding amount. Thus,
having accepted the same in its email dated 11.10.2011, the defendant
acknowledged its liability to pay the dues and debts pending towards
the plaintiff, while stating that all the bills mentioned from April 2010
to June 2011 appear in the Hardwar records of their office and asked
the plaintiff to seek the payment from the head office of the defendant.
8. Learned counsel for the petitioner submits that there is no
unequivocal and unambiguous admission of the existing liability by
the petitioner in the referred email and that the trial court erroneously
interpreted the response as acknowledgment of subsisting liability
despite the absence of any express admission of liability. It is argued
that the email was sent by the petitioner as a response to the email sent
by the respondent but it nowhere acknowledges any liability.
9. On the basis of the objections in the written statement regarding
limitation, the trial court had framed a specific issue as to whether the
suit of the plaintiff was time barred. The said issue was taken up as a
preliminary issue. After hearing the parties, vide impugned order
dated 24.08.2015, the learned trial court was of the view that the
question of limitation would require evidence. The relevant para of the
order dated 24.08.2015 reads as under:-
"Having heard the submissions made by the Ld. Counsel for
the parties and after gone through the case file this court is of
the considered view that during the course of the arguments
the defendant has admitted the e-mail dt. 11.10.11 but he has
considered the e-mail dt.11.10.11 then the suit ought to have
been filed on or before 11.10.14 and the present suit has been
filed on 09.10.14. So far as the admissibility of the e-mail dt.
11.10.11 is concerned the same can only be decided after
leading the evidence of the parties. Therefore, at this stage, the
suit of the plaintiff cannot be dismissed by deciding that the
same is beyond period of limitation and the point of limitation
required evidence."
10. Admittedly, the order dated 24.08.2015 was never challenged
by the petitioner. Once the trial court already ruled that evidence was
required for the purpose of determination of the issue of limitation, it
is not understood as to why an application under Order VII Rule 11
CPC raking the same issue was filed again. The relevant paras of the
order dated 14.11.2024 read as under:-
"6.) Perusal of the record shows that in para 4 of the plaint, it is the
case of the plaintiff that vide e-mail dt. 11.l0.2011, defendant
acknowledged his liability. The suit, is filed on 09.10.2014 and the
same cannot be barred by limitation. It is settled law that at the
stage of rejection of plaint, only averments in the plaint are to be
seen (reliance is placed upon case titled as Saleem Bhai v. State of
Maharashtra, reported in(2003) I SCC 557, decided by the Hon'ble
Supreme Court).
7.) It is rightly contended by counsel for plaintiff that these
arguments have already been dealt with vide order dated
24.08.2015.
Further, limitation is a mixed question of law and facts and
issue no. 2 has already been framed regarding limitation on
21.04.2015. In considered opinion of this Court, the issue no. 2 will
be decided during final arguments in the suit after full evidence has
been led by the parties. The plaint cannot be rejected at this stage.
Application under Order 7 Rule 11 CPC is dismissed. However,
nothing stated in this order with effect the merits of the main
suit."
11. It seems that the petitioner deliberately raked up the issue of
limitation by filing an application under Order VII Rule 11 CPC so
that he would get a fresh limitation period to challenge the order, even
though he had not challenged the previous order dated 24.08.2015.
This seems to be an abuse of process of law.
12. Trial court has correctly ruled that the question of limitation in
the present case was a mixed question of law and fact to be decided
during final arguments after full evidence has been led by the parties. I
do not find any perversity or illegality in the said order.
13. There is no merit in the present petition. The petition is
therefore dismissed.
RAVINDER DUDEJA, J
FEBRUARY 20, 2025/ib
