Code of Civil Procedure, 1908 – Or.7, r.11(d) – Limitation Act, 1963 – Art.113 – The appellant filed suit on 23.02.2005 for a decree for rendition of true and correct accounts in respect of the interest/commission charged and deducted by the respondent-Bank – The plaint was rejected by the Trial Court u/Or.7, r.11(d) of CPC on the ground that it was barred by law of limitation as it was filed beyond the period of three years prescribed u/Art.113 of the Limitation Act – It held that right to sue accrued in favour of plaintiff in October, 2000 and plaintiff could have filed the present suit till October, 2003 as the excessive charging by the Bank was till October, 2000 – The First Appellate Court and the High Court affirmed the decision of the Trial Court – On appeal, held: The appellant noticed the discrepancy in July, 2000 and immediately took the matter with officials of the Bank – The Bank wrote on 09.07.2001 that appellant’s representation was being examined – Thereafter, a letter was received on 08.05.2002 from bank informing appellant that the cheques were purchased at the prevailing rates and another letter was received on 19.02.2002 from bank informing appellant that all actions taken by the bank were as per rules and therefore, the appellant need not pursue the matter any further – The appellant had sent legal notice on 28.11.2003 and 07.01.2005 and then finally proceeded to file suit on 23.02.2005 – The Article 113 uses the expression ‘when the right to sue accrues’ and not ‘when the right to sue “first” accrues’ – Reckoning these dates, the plaint filed on 23.02.2005 was within limitation – Resultantly, the question of rejecting plaint u/Or.7, r.11 of CPC does not arise and the decisions of the Trial Court, the First Appellate Court and the High Court cannot be sustained.
Allowing the appeals, the Court
HELD: 1. It is well established position that the cause of action for filing a suit would consist of bundle of facts. Further, the factum of suit being barred by limitation, ordinarily, would be a mixed question of fact and law. Even for that reason, invoking Order VII Rule 11 of the CPC is ruled out. In the present case, the assertion in the plaint is that the appellant verily believed that its claim was being processed by the Regional Office and the Regional Office would be taking appropriate decision at the earliest. That belief was shaken after receipt of letter from the Senior Manager of the Bank, dated 8.5.2002 followed by another letter dated 19.9.2002 to the effect that the action taken by the Bank was in accordance with the rules and the appellant need not correspond with the Bank in that regard any further. This firm response from the respondent-Bank could trigger the right of the appellant to sue the respondent-Bank. Moreover, the fact that the appellant had eventually sent a legal notice on 28.11.2003 and again on 7.1.2005 and then filed the suit on 23.2.2005, is also invoked as giving rise to cause of action. Whether this plea taken by the appellant is genuine and legitimate, would be a mixed question of fact and law, depending on the response of the respondents. [Para 13][556-F-H; 557-A]
2. Reverting to the argument that exchange of letters or correspondence between the parties cannot be the basis to extend the period of limitation, in opinion of this Court, for the view taken by us hitherto, the same need not be dilated further. Inasmuch as, having noticed from the averments in the plaint that the right to sue accrued to the appellant on receiving letter from the Senior Manager, dated 8.5.2002, and in particular letter dated 19.9.2002, and again on firm refusal by the respondents vide Advocate’s letter dated 23.12.2003 in response to the legal notice sent by the appellant on 28.11.2003; and once again on the follow up legal notice on 7.1.2005, the plaint filed in February, 2005 would be well within limitation. Considering the former events of firm response by the respondents on 8.5.2002 and in particular, 19.9.2002, the correspondence ensued thereafter including the two legal notices sent by the appellant, even if disregarded, the plaint/suit filed on 23.2.2005 would be within limitation in terms of Article 113. [Para 14][557-B-D] Ram Prakash Gupta v. Rajiv Kumar Gupta & Ors. (2007) 10 SCC 59 : [2007] 10 SCR 520; Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC
706 : [2012] 6 SCR 404; Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174 : [2017] 5 SCR 294; Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr. (2004) 2 SCC 747 : [2004] 2 SCR 145; Khatri Hotels Private Limited & Anr. v. Union of India & Anr. (2011) 9 SCC 126 : [2011] 15 SCR 299 – relied on.
Hardesh Ores (P) Ltd. v. Hede and Company (2007) 5 SCC 614 : [2007] 6 SCR 608; The East and West Steamship, Georgetown, Madras v. S.K. Ramalingam Chettiar AIR 1960 SC 1058 : [1960] 3 SCR 820; Boota Mal v. Union of India AIR 1962 SC 1716 : [1963] 1 SCR 70; S.S. Rathore v. State of Madhya Pradesh (1989) 4 SCC 582 : [1989] 1 Suppl. SCR 43 –
inapplicable.
Venkappa Gurappa Hosur v. Kasawwa C/o Rangappa Kulgod (1997) 10 SCC 66 : [1997] 3 SCR 579;
Kandimalla Raghavaiah & Company v. National
Insurance Company & Anr. (2009) 7 SCC 768 : [2009]
10 SCR 870; Fatehji And Company & Anr. v. L.M. Nagpal & Ors. (2015) 8 SCC 390 : [2015] 6 SCR 389 – referred to.
C.P. Kapur v. The Chairman & Ors. (2013) 198 DLT
56 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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