TaxTMI 
TaxTMI 
2020 (6) TMI 823
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....i, vide order dated 23.7.2016 in R.C.A. No. 61794/2016 had also affirmed the order of rejecting the plaint. The appellant had filed the stated suit on 23.2.2005 for a decree for rendition of true and correct accounts in respect of the interest/commission charged and deducted by the respondent-Bank relating to current account No. CCM 20225 of the appellant for the period between 1.4.1997 and 31.12.2000 and also for recovery of the excess amount charged by the respondent-Bank consequent to rendition of accounts with interest at the rate of 18% per annum from the date of deduction including interest pendente lite realization of the amount and future interest. 3. The plaint came to be rejected by the trial Court under Order VII Rule 11(d) of the CPC on the ground that it was barred by law of limitation, as it was filed beyond the period of three years prescribed in Article 113 of the Limitation Act, 1963 (for short, "the 1963 Act"), as applicable to the present case, from the date when the right to sue accrued to the appellant in October, 2000. The entire discussion of the trial Court in that regard can be traced to paragraphs 10 and 11, which read thus: "10. As stated abov....
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....s. 5. Be it noted that the appellant had relied on Articles 2, 3 and 22 of the 1963 Act to urge that the suit filed in February, 2005 was within limitation. This plea, however, did not impress the trial Court, the first appellate Court or the High Court. The Courts proceeded on the basis that Article 113 is attracted in the facts of the present case, as the reliefs claimed by the appellant were not covered under any specific Article with regard to time period within which accounts can be sought by party from its bank, as noted by the trial Court in paragraph 10 of its judgment reproduced above. 6. The central question is: whether the plaint as filed by the appellant could have been rejected by invoking Order VII Rule 11(d) of the CPC? Indeed, Order VII Rule 11 of the CPC gives ample power to the Court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation. This position is no more res integra. We may usefully refer to the decision of this Court in Ram Prakash Gupta vs. Rajiv Kumar Gupta & Ors. (2007) 10 SCC 59 . In paragraph Nos. 13 to 20 of the reported decision, the Court observed as follow....
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....r 10 CPC." (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467], SCC p. 468.). 17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487], only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. 18. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order 7 was applicable. 19. In Sopan Sukhdeo Sable v. Asstt. Charity Commr. [(2004) 3 SCC 137] this Court held thus: (SCC pp. 14647, para 15) "15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in iso....
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....urt can exercise the power under Order 7 Rule 11 CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court." It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irreleva....
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....are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection ....
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....tiff that the comments of the Branch Office have been invited on the representation of the Plaintiff in respect of the local cheques/DDs discounted during the relevant period and the matter will be decided as early as possible. No progress was made in the matter and the Plaintiff had to submit letter dated 31.10.2001 to the Hon'ble Finance Minister, Govt. of India, New Delhi. 12. That the Defendants have charged interest for some time for the actual number of days for the Defendants remained out of funds. 13. That vide letter dated 08.05.2002, the Senior Manager informed the Plaintiff that the cheques were being purchased at the prevailing rates. That reply was given to sidetrack the real issue in respect of which letter dated 09.07.2001 was received from Shri P.S. Bawa, Assistant General Manager of Regional Office as referred to in the foregoing paras. 14. That, thereafter, the Plaintiff sent letters dated 12.07.2002, 22.09.2002, 24.3.2003 alongwith which the details of the proposed/estimated excess amount charged were given and it was requested that a sum of Rs.31,57,484/approximately appears to have been charged in excess of what should have been actua....
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....ragraph 11 of the plaint, wherein it is mentioned that the Assistant General Manager Shri P.S. Bawa of Regional OfficeB, Delhi, vide letter dated 9.7.2001 informed the appellant that comments from the concerned Branch Office have been invited and appropriate decision will be taken on its representation as early as possible. Thereafter, on 8.5.2002, the Senior Manager of the respondent-Bank informed the appellant that the cheques were being purchased at the prevailing rates; which plea, according to the appellant, was to deviate from the position stated by the Assistant General Manager of Regional Office in his letter dated 9.7.2001 referred to earlier. Resultantly, the appellant wrote to the officials of the respondent-Bank vide letters dated 12.7.2002, 22.9.2002 and 24.3.2003. Notably, it is averred in paragraph 15 of the plaint that the Senior Manager of the respondent-Bank vide letter dated 19.9.2002 had informed the appellant that everything was being done in accordance with the rules and the appellant need not pursue the matter any further. It is asserted that despite this intimation, the appellant continued to correspond with the respondent-Bank with a sanguine hope that the ....
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....also be regarded as a firm denial or refusal by the authorised official of the Bank, giving rise to cause of action to sue the Bank. 8. Thus understood, the letter dated 8.5.2002 sent by the Senior Manager of the respondent-Bank, at best, be reckoned as accrual of the cause of action to the appellant to sue the respondent-Bank. It is then stated that the appellant received a communication dated 19.9.2002, informing the appellant that it should not carry on any further correspondence with the Bank relating to the subject matter. Until then, the appellant was having a sanguine hope of favourable resolution of its claim including by the Regional Office of the respondents. The appellant, therefore, had to send a legal notice on 28.11.2003, to which the Bank responded on 23.12.2003. Reckoning these dates, the plaint filed on 23.2.2005 was within limitation, as stated in paragraph 28 of the plaint. Resultantly, the question of rejecting such a plaint under Order VII Rule 11(d) of the CPC did not arise. 9. The expression used in Article 113 of the 1963 Act is "when the right to sue accrues", which is markedly distinct from the expression used in other Articles in First Division of t....
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....by them as regards unreasonableness in the levy of freight was granted by the Tribunal. 21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when "the right to sue first accrues", in terms of Article 113 thereof, the period of limitation would be counted from the date "when the right to sue accrues". The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus, whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose." (emphasis supplied) 12. Similarly, in Khatri Hotels Private Limited & Anr. Vs. Union of India & Anr. (2011) 9 SCC 126 , this Court considered the expression used in Article 58 in contradistinction to Article 120 of the old Limitation Act (the Indian Limitation Act, 1908). In paragraph 24, the Court noted thus: ....
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....tened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right." 30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first" has been used between the words "sue" and "accrued". This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued." (emphasis supplied) Notably, the expression used in Article 113 is similar to that in Article 120, namely, "when the right to sue accrues". Hence, th....
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....rticle 113. 15. The respondents had relied on the exposition of this Court in Boota Mal vs. Union of India AIR 1962 SC 1716, S.S. Rathore vs. State of Madhya Pradesh (1989) 4 SCC 582 , Venkappa Gurappa Hosur vs. Kasawwa C/o Rangappa Kulgod (1997) 10 SCC 66 , and Kandimalla Raghavaiah & Company vs. National Insurance Company & Anr. (2009) 7 SCC 768 and of Delhi High Court in C.P. Kapur (supra), to buttress the above argument, which, as aforesaid, is unavailable in light of the averments in the plaint under consideration. Suffice it to observe that going by the averments in the plaint, the argument of the respondents that the appellant had placed reliance on the correspondence to get extension of the limitation period, is untenable. The averments in the plaint, however, are very explicit to the effect that the grievance of the appellant about unilateral charging of interest/commission by the respondent-Bank was firmly denied or refused by the Senior Manager of the respondent-Bank vide letter dated 8.5.2002 and in particular letter dated 19.9.2002 and again by Advocate's letter on 23.12.2003, giving rise to cause of action and accrual of right to sue. 16. The respondents h....
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....nder First Division of the Schedule to the 1963 Act regarding suits relating to accounts; and not similar to Article 113, which envisages three years' time from the period when the right to sue accrues (and not when the right to sue "first" accrues). 19. As regards Boota Mal (supra) and The East and West Steamship, Georgetown, Madras vs. S.K. Ramalingam Chettiar AIR 1960 SC 1058, the Court was dealing with a case relating to Article 31 of the old Limitation Act, which provided that the time from which period begins to run, is when the goods sought to be delivered. Even these decisions will be of no avail to the fact situation of the present case, which is governed by Article 113 of the 1963 Act and for the reasons already recorded hereinbefore. 20. Similarly, in S.S. Rathore (supra), the Court was dealing with a case governed by Article 58 of the 1963 Act, which specifically provides that time begins to run when the right to sue "first" accrues. In Ram Prakash Gupta (supra), the Court dealt with a case governed by Article 59 of the 1963 Act, which provides that the suit could be filed when the facts entitling the plaintiff to have the instrument or decree cancelled or set asi....
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....llows: 31 "8. That the facility as referred to in the foregoing paras was extended with effect from the month of November, 1997 to December, 1999 and somewhere in the month of July, 2000 it was noticed by the plaintiff that the defendants were charging interest/commission @ Rs.4/per thousand rupees on local cheques and drafts in an arbitrary manner in violation of the assurance given to the plaintiff. 9. That after the detection of the above overcharging the interest/commission the plaintiff sent a letter to the defendants on 21.7.2000 complaining about the overcharging and thereafter the interest/commission was charged as per assurance given. 10. That the amount overcharged as commission/interest was not refunded to the plaintiff and the plaintiff sent the following letters addressed to the Bank i.e. General Manager and Senior Manager indicating therein that the amount overcharged should be refunded to the plaintiff with interest thereon: Letter dated 12.10.2000, 24.10.2000, 30.10.2000, 7.11.2000, 24.12.2000, 01.03.2001, 28.03.2001, 22.05.2001 and 20.06.2001. In all the above letters requests were made to clarify as to how the co....
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....ontaining all the details relating to the transactions as could be gathered from the books of accounts of the plaintiff. 19. That reply to the above noted notice was sent by the defendants through Sh. Sanjeev Kumar Gupta, Advocate, vide letter dated 23.12.2003 wherein averments relating to the excess charges were denied and it was stated that the interest was charged on DD/cheques as per Central Officer Circular No. C09495; 233 upto 01.12.1999 and thereafter as per Circular No. CO/OPR/SCHGS/CIR/LET/20002001 dated 18.08.2000." (emphasis supplied) Again, in paragraph 28, it is stated as follows: "28. That the cause of action to file the suit accrued in favour of the plaintiff and against the defendants when the illegal recoveries were noticed and letter dated 21.07.2000 was sent to the defendants to clarify as to how the interest was being calculated and recovered and on various other dates when the letters were sent to the defendants with request for refund of the excess amounts charged and on 9.7.2001 when assurance for proper calculation and refund was conveyed to the plaintiff and on 8.5.2002, 12.7.2002 and 22.9.2002 when requests were again made to....