Rajasthan High Court - Jodhpur
Rajasthan State Ware Housing ... vs Ratan Lal Nagori (2024:Rj-Jd:23799) on 24 May, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:23799] (1 of 4) [CFA-18/1993]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 18/1993
Rajasthan State Ware Housing Corporation, near Rambagh
Circle, Bhawani Singh Road, Jaipur through its Managing
Director.
----Appellant
Versus
Ratan Lal Nagori, Govt. Contractor, S/o Shri Ganpat Rai nagori,
Nagori Bhawan, Opposite Ganesh Talkies, Sriganganagar.
----Respondent
For Appellant(s) : Mr. DD Thanvi
Mr. Amit Vyas
For Respondent(s) : Mr. Sandeep Soni.
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
24/05/2024
1. Heard the parties.
2. The sole respondent Ratan Lal Nagori, a government
contractor brought a suit bearing Civil Suit No.29/1997 against the
appellant Rajasthan State Warehousing Corporation for recovery
of due money against the performance of contract work done by
the plaintiff respondent.
3. Rajasthan State Warehousing Corporation appeared in the
suit and filed an application for referring the matter to arbitration
as per the arbitration clause mentioned in the agreement between
the parties. The matter was referred to the arbitrator. Later on by
order dated 02.11.1978 passed in the aforesaid civil suit, the
proceeding before the arbitrator was stayed. Then, the appellant
[2024:RJ-JD:23799] (2 of 4) [CFA-18/1993]
filed a counter claim on 04.09.1984 claiming his overdue with the
plaintiff-respondent.
4. The suit was dismissed on the ground that it was barred by
limitation and the counter claim was also dismissed as barred by
limitation. The judgment of the trial court was not challenged by
the plaintiff thereat. However, the defendant who had preferred
counter claim filed the present appeal.
5. There is no dispute that the provisions of Order VIII Rule 6 A
in the matter of counter claim by defendant would be applicable.
The said provision is reproduced below:-
"6A. Counter-Claim by defendant:- (1) A defendant
in a suit may, in addition to his right of pleading a set-
off under rule 6, set up, by way of counter-claim
against the claim of the plaintiff, any right or claim in
respect of a cause of action accruing to the defendant
against the plaintiff either before or after the filing of
the suit but before the defendant has delivered his
defence or before the time limited for delivering his
defence has expired, whether such counter-claim is in
the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the
pecuniary limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a
cross-suit so as to enable the Court to pronounce a
final judgment in the same suit, both on the original
claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written
statement in answer to the counter-claim of the
defendant within such period as may be fixed by the
Court.
(4) The counter-claim shall be treated as a plaint and
governed by the rules applicable to plaints."
6. Evidently, the counter claim would be treated as a plaint and
Article 26 of the limitation Act provides for limitation for bringing a
suit for recovery of due money. The said provision of Article 26
reads as follows:-
[2024:RJ-JD:23799] (3 of 4) [CFA-18/1993]
26. For money payable to Three years When the accounts are
the plaintiff for money stated in writing signed
found to be due from the by the defendant or his
defendant to the plaintiff agent duly authorized in
on accounts stated this behalf, unless
between them. where the debt is, by a
simultaneous
agreement in writing
signed as aforesaid,
made payable at a
future time, and then
when that time arrives.
7. Evidently, the appellant had knowledge of the suit and claim
of the plaintiff-respondent against the appellant on the date of
appearance and filing a petition for referring the matter for
arbitration. The appellant had knowledge of the Stay of arbitration
proceedings on 02.11.1978. The period in between reference to
the arbitration and stay of the arbitration proceedings would be
executed. Even if the limitation is counted from 02.11.1978. The
counter claim was filed on 04.01.1984, much beyond three years.
8. Learned counsel for the appellant submits that the trial court
should have decided the other issues as well, however, the suit
was dismissed only on adjudication of issue No.13 relating to
limitation.
9. Once the suit is held barred by law other issues need not
have been decided for the simple reason that the suit was itself
incompetent under Law. While deciding issue of limitation, learned
trial judge elaborately considered the material the record to
substantiate that the counter claim was brought after expiry of
three years.
[2024:RJ-JD:23799] (4 of 4) [CFA-18/1993]
10. The point for consideration in this appeal is whether the
finding of the trial court that the counter claim is barred by
limitation is sustainable in law or not.
11. As facts narrated above, it is evident that the limitation of
filing counter claim would at least start running from the date of
stay proceedings before the arbitrator which was not challenged
anywhere and that stay order was passed on 02.11.1978,
therefore counter claim filed on 04.09.1984 was beyond three
years and as such was barred by limitation. Therefore, this court
is not inclined to interfere with the judgment and decree dated
19.02.1992 passed by Additional District Judge No. 1,
Sriganganagar, Camp Srikaranpur in Civil Original Suit No.
29/1977.
12. Accordingly, this civil first appeal stands dismissed.
(BIRENDRA KUMAR),J
234-nitin/-
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