Karnataka High Court
M/S Shree Electronics vs M/S Bpl Limited on 22 February, 2024
Author: P.S. Dinesh Kumar
Bench: P.S. Dinesh Kumar
R.F.A No.2257/2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. P.S. DINESH KUMAR, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
R.F.A NO. 2257 OF 2023 (MON)
BETWEEN:
1. M/S SHREE ELECTRONICS
A REGISTERED PARTNERSHIP FIRM
HAVING ITS OFFICER AT NO.14
OPP. HALWASIA MARKET
LUCKNOW-226 001.
UTTAR PRADESH
REPRESENTED BY ITS PARTNER
SRI AMIT KUMAR SINGH
2. SMT. PUSHPA SINGH
W/O SRI KAUSHLENDRA SINGH
AGED ABOUT 60 YEARS
PARTNER OF M/S. SHREE ELECTRONICS
R/O NO.129, RAVINDRA PALLI
FAIZABAD ROAD
LUCKNOW-226 006.
UTTAR PRADES.
3. SRI. AMIT KUMAR SINGH
S/O SRI. KAUSHLENDRA SINGH
AGED ABOUT 46 YEARS
PARTNER OF M/S. SHREE ELECTRONICS
R/O NO.129, RAVINDRA PALLI
FAIZABAD ROAD
R.F.A No.2257/2023
2
LUCKNOW-226 006.
UTTAR PRADESH ...APPELLANTS
(BY SHRI. A.M. VIJAY, ADVOCATE)
AND:
M/S BPL LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
BPL WORKS, PALAKKAD-676 007.
KERALA AND ITS OFFICE AT NO.13
BPL TOWERS, KASTURBA ROAD
BENGALURU-560 001. ...RESPONDENT
(BY SHRI. DHANANJAY VIDYAPATI JOSHI, SENIOR ADVOCATE FOR
SMT. KAVITHA DAMODARAN, ADVOCATE AND
SHRI. H.U. VACHAN, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE
ORDER DATED 07.11.2023 PASSED ON I.A.NO.11 IN OS.NO.10380/1995
ON THE FILE OF THE LXXIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, MAYO HALL UNIT, BENGALURU, ALLOWING THE I.A.NO.11 FILED
UNDER ORDER 7 RULE 11 (d) OF CPC.
THIS RFA, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 29.11.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, CHIEF JUSTICE PRONOUNCED THE FOLLOWING:-
JUDGMENT
This appeal by the defendants is directed against Order
on I.A.No.11 filed under Order VII Rule 11(d) of the
CPC, dated November 07, 2023 in O.S. No.10380/1995
passed by the LXXIII, Additional City Civil Judge, Bangalore
rejecting the counter-claim.
2. For the sake of convenience, parties shall be
referred as per their status before the Trial Court.
3. Heard Shri. A.M.Vijay, learned Advocate for the
appellants/defendants and Shri. Dhanajay Joshi, learned
Senior Advocate for the respondent/plaintiff.
4. Brief facts of the case are, plaintiff, BPL Ltd has
brought O.S. No.10380/1995 for recovery of Rs.12,46,625/-
from the defendants. Defendants were given 'BPL Gallery' to
promote sale of plaintiff's products. During the course of
business, defendants became liable to pay the decreetal sum.
The suit has been decreed ex parte. Defendants'
Miscellaneous Petition under Order IX Rule 13 of the CPC has
also been dismissed. On appeal, this Court in MFA
No.1629/2020, set-aside the ex parte judgment and restored
the suit on the file of the Trial Court. Defendants filed a
counter-claim against plaintiff for recovery of sum of
Rs.1,21,58,162/- along with interest. The learned Trial Court
has rejected the counter-claim under Order VII Rule 11(d) of
CPC on the ground that the counter claim was barred by law
of limitation. Aggrieved, defendants have preferred this
appeal.
5. Shri. A.M.Vijay, for the defendants, in substance,
submitted that the learned Trial Judge has failed to consider
that, initially, on 21.03.2011 an ex-parte decree was passed
in the instant suit and it was challenged in MFA No.
1629/2020. This Court1 allowed the said appeal and remitted
the matter to the Trial Court for fresh disposal. The
defendants could not have filed their counter claim earlier.
Therefore, the impugned order rejecting the counter claim is
bad in law.
6. Shri. Joshi, for the plaintiff, arguing in support of
the impugned order, submitted that the cause of action as
per the counter claim arose on 07.04.1995 and therefore,
defendants ought to have filed the suit for recovery within a
period of three years. The learned Trial Judge has rightly
dated 24.07.2023
rejected the counter claim on the ground that it is barred by
law of limitation.
7. We have carefully considered rival contentions and
perused the records.
8. Undisputed facts of the case are, plaintiff's suit
has been decreed on 21.03.2011. Defendants have filed their
Miscellaneous Petition under Order IX Rule 13 of the CPC in
2011. Ultimately, the suit has been restored vide order dated
24.07.2023 in MFA No.1629/2020.
9. Plaintiff's suit is for recovery of Rs.12,46,625/-.
Defendants' counter claim is for Rs.1,21,58,162/-. The cause
of action mentioned in the counter claim is 05.04.1995.
Admittedly, the counter claim is also for recovery of money.
In the absence of plaintiff's suit, the defendants ought to
have brought their suit within three years from the date of
cause of action, which would expire in 1998.
10. Surprisingly, the defendants have urged thus as a
ground of appeal:
"15. The Learned Trial Judge has failed to appreciate the
provisions of Section 3(b)(ii) of the Limitation Act as per
which a Counter Claim shall be deemed to have been
instituted on the date when such a Counter Claim is made in
court. Having regard to this legal position, the Trial Court
ought to have ruled in favour of the Appellants that the date
of reckoning for the purposes of limitation with respect to the
Counter Claim should be the date when the same was
presented i.e., 01.09.2023."
11. Section 3(b)(ii) of the Limitation Act, 1963 reads
thus:
"(b) any claim by way of a set off or a counter claim,
shall be treated as a separate suit and shall be deemed to
have been instituted--
(i) xxxx
(ii) in the case of a counter claim, on the date on which
the counter claim is made in court."
12. Thus, it is clear that a counter claim shall be
deemed to have been instituted on the date it is made in the
Court.
13. Admittedly, defendants' counter claim is filed
Court in 2023 and it is hopelessly barred by time. This being
unambiguous, no exception can be taken to the order passed
by the learned Trial Judge.
14. Resultantly, this appeal must fail and it is
accordingly, dismissed.
No costs.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
SPS
