Telangana High Court
Itd Cementation India Limted vs Madhucon Projects Limted on 3 March, 2022
Bench: Satish Chandra Sharma, Abhinand Kumar Shavili
THE HON'BLE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
Commercial Court Appeal No.63 of 2019
JUDGMENT: (Per Hon'ble Justice Abhinand Kumar Shavili)
This Commercial Appeal is filed under Section
13(1) of the Commercial Courts, Commercial Division
and Commercial Appellate Division of High Court's Act,
2015 aggrieved by the order dated 11.06.2018 passed
in C.O.S.S.R.No.483 of 2018 by the Commercial Court
- cum - XXIV Additional Chief Judge, City Civil Court,
Hyderabad.
2. Heard Mr. M.S. Srinivasa Iyengar, learned
counsel for the appellant and Mr. S. Srinivasa Reddy,
learned counsel for the respondent.
3. The above suit had been filed by the appellant
against the respondent for recovery of a sum of
Rs.1,47,57,653/- together with interest at the rate of
13.5% from the date of suit till the date of realisation.
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4. It is the case of the appellant that he had
entrusted sub-contract work to the respondent in the
year 2015. Prior to that, M/s. Barasat Krishnagar
Expressways Ltd. (BKEL) was entrusted contract by
the respondent. It further contended that the Bills
pertaining to the contract, i.e., the last RA Bills were
presented on 22.07.2015; and that the contract
between him and the respondent was terminated w.e.f.
03.05.2016. According to the appellant, the cause of
action arose on 03.05.2016 when the contract was
terminated and the suit was filed on 01.06.2017 well
within time and the same is not barred by limitation.
But the Court below by order dated 11.06.2018,
rejected the suit at the admission stage holding that
the cause of action arose on 06.12.2013; that plaintiff
had also filed a memo stating that it had entered into a
Letter of Intent dated 06.12.2013 with the defendant
and also contract agreement in the year, 2015, and
that the said contract was terminated w.e.f.
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16.03.2016 itself. The court further held that in view
of the termination of the contract w.e.f. 16.03.2016,
the claim ought to have been filed within one year as
per the terms of the contract; that this has not been
done by the plaintiff; and therefore, it held that the
suit itself is barred by limitation.
5. Assailing the same, the present Appeal is filed.
6. Learned counsel for the appellant contended that
the court below erroneously came to conclusion that
the claim made by the appellant before the court below
is barred by limitation as the cause of action for filing
a suit arose on 16.12.2013, and the suit has been filed
after expiry of three (03) years which is beyond the
period of limitation, i.e., 01.06.2017. It is further
contended by the appellant that when the contract was
terminated w.e.f. 03.05.2016, the suit ought to have
been filed by 16.03.2017, but it was filed on
01.06.2017. He further contended that the Court
below rejected the original suit filed by the appellant at
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the preliminary stage without going into the merits of
the case.
7. Learned counsel for the appellant further
contended that Court below erroneously came to a
conclusion that the claims made by the appellant are
barred by limitation, as the cause of action arose for
the appellant on 16-12-2013 and the suit has been
filed after expiry of three years of limitation i.e., on
16-12-2016; and on that sole ground, the plaint
preferred by the appellant was mechanically rejected.
8. The learned counsel for the appellant further
contended that if there was delay, the Court below
ought to have framed an issue to that effect while
adjudicating the suit itself at the time of hearing, and
an opportunity ought to have been given to the
appellant to satisfy the court that there was no delay.
But, without giving an opportunity, the Court below
had mechanically rejected the plaint preferred by the
appellant and, therefore, prayed that appropriate
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orders be passed by setting aside the orders passed in
COSSR No. 483 of 2018, dated 11-06-2018, and to
further direct the Court below to entertain the plaint
submitted by the appellant and after adjudicating the
same on merits, pass appropriate orders in accordance
with law.
9. Learned counsel for the respondent filed counter-
affidavit stating that the contentions raised in the
appeal are baseless, and the Court below had rightly
rejected the plaint on the ground of limitation, and
prayed for dismissal of the appeal.
10. This Court after considering the rival
submissions of the parties, is of the considered view
that the plaint was rejected at the threshold without
giving an opportunity to the appellant. Even though
the court below was not satisfied about the
maintainability of plaint on the aspect of delay and
laches, it ought to have framed an issue while
adjudicating the main suit itself. Therefore, we are of
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the view that the Court below erred in rejecting the
plaint filed by appellant at the threshold without giving
an opportunity to the appellant.
11. Accordingly, we set aside the order dated
11-06-2018 passed by the court below in
C.O.S.S.R.No.483 of 2018, and the Court below is
directed to entertain the plaint/suit preferred by the
appellant; and, if necessary frame a specific issue
about the maintainability of the suit on the ground of
delay and laches, and adjudicate the same on merits.
Appeal is disposed of with the above directions. No
costs.
12. As a sequel, miscellaneous applications pending
if any in this Appeal, shall stand closed.
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SATISH CHANDRA SHARMA, CJ
_________________________________
ABHINAND KUMAR SHAVILI, J
Date : 03.03.2022
NDR /ASR
