The Commissioner vs M/S Chabbras Associates
2023 Latest Caselaw 6517 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 14TH DAY OF SEPTEMBER, 2023

                         BEFORE

          THE HON'BLE MR.JUSTICE S.G.PANDIT

       WRIT PETITION No.17695/2023 (GM-CPC)

BETWEEN:

THE COMMISSIONER
MYSURU CITY CORPORATION
MYSURU-570 022.
                                             ...PETITIONER
(BY SMT. GEETHA DEVI M.P., ADV.)


AND:

M/S. CHABBRAS ASSOCIATES
A REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICE AT NO.11-1/77/14
CHILKALGODA, SECUNDRABAD-560061
TELANGANA
REP. BY ITS POWER OF ATTORNEY HOLDER
MR. K SATHEESH.
                                           ....RESPONDENT


       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS IN COM. O.S.NO.109/2022 ON THE FILE OF THE
COMMERCIAL COURT AND II ADDL.DIST AND SESSION JUDGE
MUSURU AND SET ASIDE THE ORDER DATED 23.02.2023 ON
I.A.NO.VII FILED BY THE APPLICANT/DEFENDANT R/O VII RULE
11(D) IN COMPENSATION OS NO.109/2022 ON THE FILE OF THE
                             2
COMMERCIAL COURT AND II ADDL. DIST AND SESSION JUDGE
MYSURU AS PER ANNX-A.


     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 18/08/2023 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT MADE THE FOLLOWING:


                        ORDER

The petitioner/defendant in Com.O.S.No.109/2022

on the file of the Commercial Court and II Additional

District & Sessions Judge, Mysuru (for short, 'Trial

Court') is before this Court questioning the order

dated 23.02.2023 rejecting IA filed under Order VII

Rule 11 (d) of CPC.

2. Heard the learned counsel Smt.Geetha Devi

M. Papanna for petitioner-Mysuru City Corporation.

Perused the writ petition papers.

3. The respondent/plaintiff filed suit for recovery

of Rs.41,04,84,455/- along with interest at 12% per

annum from the defendant/petitioner herein. The plaint

was presented on 23.05.2022. On appearance, the

petitioner/defendant filed its written statement.

Thereafter, petitioner/defendant filed application under

Order VII Rule 11(d) of CPC on 09.12.2022 praying to

reject the suit as barred by limitation and also for non-

compliance of mandatory provisions of Section 482 of

the Karnataka Municipal Corporations Act, 1976 (for

short, '1976 Act'). The affidavit accompanying the

application would indicate that plaintiff sent notice dated

27.03.2015 to the defendant claiming compensation and

the plaintiff ought to have sought for adjudication of the

same within three years i.e., on or before 31.03.2018.

Further, it would also disclose that Section 482 of 1976

Act bars the suit without issuing prior notice of 60 days

along with the plaint of the suit. As the plaintiff has

failed to issue notice in terms of Section 482 of 1976

Act, the suit filed by respondent/plaintiff would not be

maintainable. The respondent/plaintiff opposed the said

application by filing objections stating that plaintiff

terminated the contract in terms of notice dated

31.08.2020. The cause of action for filing the suit arose

on 31.08.2020, the date on which contract was

terminated and not on 27.03.2015, as contended by

petitioner/defendant. The respondent/plaintiff in its

objections also stated that as on the date of issuing

notice dated 27.03.2015, the contract was in force and

the notice was issued claiming the pending bills as on

the said date. Further with regard to issuance of notice

under Section 482 of 1976, it is stated that notice dated

31.08.2020 is issued under Section 482 of 1976 Act.

Therefore, it prayed for dismissal of application filed

under Order VII Rule 11(d) of CPC.

4. The Trial Court under impugned order

rejected the application filed under Order VII Rule 11(d)

of CPC holding that the question of limitation would be a

mixed question of fact and law and that notice dated

31.08.2020 would be the notice under Section 482 of

1976 Act.

5. Learned counsel for the petitioner/defendant

would submit that the Trial Court committed an error in

rejecting application filed under Order VII Rule 11 (d) of

CPC. When on the face of it, it is shown that from the

date of issuing notice dated 27.03.2015, the suit

instituted in the year 2022 is clearly barred by time, the

trial Court committed an error in rejecting the

application for rejection of plaint. When the

petitioner/defendant has pointed out that

respondent/plaintiff had issued notice dated 27.03.2015

claiming the petitioner/defendant to settle its accounts,

on failure of petitioner/defendant to settle its claim, the

respondent/plaintiff ought to have filed suit within three

years from the said date. The suit filed after more than

7 years is clearly barred by time. Learned counsel would

submit that the Trial Court ought to have found out

whether the cause of action mentioned by the

respondent/plaintiff is the real cause of action, on

scanning the material on record. Learned counsel would

further submit that a reading of the entire plaint, it is

clear that suit filed is barred by time. Further, learned

counsel with regard to issuance of notice under Section

482 of 1976 Act would submit that finding of the Trial

Court that notice dated 31.12.2020 substantially

complies Section 482 of 1976 Act is totally erroneous,

since the provision mandates the issuance of notice of

60 days which has not been complied. Thus, learned

counsel for the petitioner/defendant placing reliance on

the judgments of the Hon'ble Apex Court in the case of

B AND T AG VS. MINISTRY OF DEFENCE1 and also

DAHIBEN VS. ARVINDBHAI KALYANJI BHANUSALI

(GAJRA) DEAD THROUGH LEGAL

REPRESENTATIVES AND OTHERS2 in support of

2023 SCC OnLine SC 657

(2020) 7 SCC 366

petitioner's contention that the suit is barred by

limitation, prays for allowing the writ petition.

6. Having heard the learned counsel appearing

for the petitioner and on perusal of the writ petition

papers, I am of the view that the Trial Court rightly

rejected the application filed by petitioner/defendant

under Order VII Rule 11(d) of CPC and I am of the view

that no ground is made out to interfere with impugned

order.

7. The suit is one for recovery of money. The

case of the respondent/plaintiff is that

respondent/plaintiff was entrusted the contract work by

petitioner/defendant. Further, plaintiff stated that

defendant was unable to give approvals in time for

execution of the contract work, due to which reason

plaintiff was made to suffer. The plaint would also

indicate that the plaintiff had issued letter dated

27.03.2015 requesting the defendant to pay the pending

bills. As the defendant failed to pay bills,

respondent/plaintiff was before this Court in CMP

seeking appointment of Arbitrator to resolve the dispute.

The said CMP was dismissed on 11.01.2019 holding that

there is no arbitration clause in the agreement.

Thereafter, respondent/plaintiff issued notice dated

31.08.2020 for settlement of the claims and terminated

the work. The cause of action at paragraph 27 of the

plaint would indicate that defendant entrusted work to

the plaintiff vide agreement dated 23.07.2010 and the

plaintiff terminated the work vide representation dated

31.08.2020. The cause of action is a bundle of facts and

cause of action cannot be determined taking a single

sentence from the plaint.

8. As held by the Hon'ble Apex Court in the case

of SHAKTI BHOG FOOD INDUSTRIES VS. CENTRAL

BANK OF INDIA3 and catena of decisions, limitation

would be a mixed question of fact and law. The decision

on the question of limitation would be depending on the

evidence and material that would be placed on record by

the parties. In the case on hand, the case of the

respondent/plaintiff is that under notice dated

27.03.2015 he had requested for payment of pending

bills and he terminated the contract only on 31.08.2020

by issuing a notice. In the interregnum,

respondent/plaintiff had also approached this Court by

filing CMP requesting to appoint Arbitrator to resolve the

dispute between the plaintiff and defendant, which was

rejected by this Court on 11.01.2019. Thus, whether the

cause of action to file suit arose on 27.03.2015 or on

dismissal of CMP by this Court or on notice dated

31.08.2020 terminating the contract would be a

question of fact, which requires recording of evidence.

AIR 2020 SC 2721

9. Learned counsel for the petitioner has placed

reliance on the B AND T AG (supra) as well as

DAHIBEN (supra) in support of contention that suit is

barred by limitation. The case of B AND T AG (supra)

was a case of appointment of Arbitrator and the Hon'ble

Apex Court held that Court ought to have made a

distinction between the plea that claims raised are

barred by limitation and the plea that the application for

appointment of an Arbitrator is barred by limitation. The

above decision would have no application to the facts of

the present case. In DAHIBEN (supra), the Hon'ble

Apex Court has observed that the Court has to find

whether the plaint discloses real cause of action or

illusory cause of action created by clever drafting. The

application of principles laid down by the Hon'ble Apex

Court would entirely dependent upon the facts of each

case. The principles laid down shall have to be applied

depending upon the facts which the Court deals. The

facts of the DAHIBEN (supra) is entirely different from

the facts of the present case. In the present case, it is a

simple case of money recovery and in the facts and

circumstances of the present case, to decide the

question of limitation, it requires recording of evidence.

10. The Trial Court based on the material has

rightly held that facts involved in the suit with regard to

limitation is a mixed question of fact and law and rightly

rejected the application filed under Order VII Rule 11 (d)

of CPC.

11. Section 482 of 1976 Act requires issuance of

notice against Corporation before filing the suit. It is the

contention of respondent/plaintiff that notice dated

31.12.2020 is the notice under Section 482 of 1976 Act.

Whether the said notice would be compliance of

requirement under Section 482 of 1976 shall also have

to be gathered on the material on record, after trial.

No ground is made out to interfere with impugned

order. Accordingly, writ petition stands rejected.

Sd/-

JUDGE

NC.

CT:bms