TaxTMI 
TaxTMI 
2018 (10) TMI 2010
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.... Court [Alang], Bhavnagar filed under Order XXXVII of the Code, the appellant-original plaintiff [hereinafter referred to as, "the plaintiff"] sought recovery of a sum of Rs. 1,98,63,129/= from the opponent-original defendant [hereinafter referred to as, "the defendant"] towards the long standing dues to be paid by the defendant against various head enumerated therein. 4. Upon noticing that the suit involves commercial dispute of a specified value; as defined under Section 2[c] read with Section 12 of the Commercial Courts, Commercial Division & Commercial Appellate Division of High Courts Act, 2015 ["hereinafter to be referred to as, "the Act of 2015"], the learned Special Judge, Bhavnagar under Order dated 23rd May 2016 made below Exh. 1 in Special Civil Suit No. 15 of 2011, transferred the case papers to the Commercial Court, Rajkot, relying upon provisions of Sections 9[1] and 15[2] of the Act of 2015. Accordingly, the said suit came to be transferred to the Commercial Court at Rajkot, wherein it was re-numbered as Commercial Civil Suit No. 20 of 2016. 5. In an application moved by the defendant for rejection of the plaint under Order VII Rule 11 CPC, the main resistance ....
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....reafter was within the period of limitation. 9. Heard learned advocates for the respective parties at a considerable length. 10. Learned advocate Shri P.R. Nanavati appearing for the appellant-Gujarat Maritime Board [hereinafter to be referred to as, "the plaintiff-Board"] assailed the impugned order made below Application Exh. 22 terming it to be against the law, facts and erroneous in as much as it grossly errs in not appreciating the pleadings of the plaintiff-Board and the relief claimed thereunder. He added that the amount which is sought to be recovered by way of a suit is in respect of statutory charges under the head of LET-LDT, plot development charges, plot rent and other relevant charges prescribed by the Board under the provisions of the Gujarat Maritime Board [Conditions & Procedures for Granting Permission for Utilizing Ship Recycling Plots] Regulations, 2006 and therefore, there is no dispute regarding payment of the statutory charges payable by the defendant towards ship-breaking plot held by it. 11. On the aspect of approach of the Court below, counsel for the plaintiff contended that the learned Judge has not properly appreciated the language used in Orde....
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....t of his arguments, learned advocate has relied on the following decisions: [a] Virender Nath Gautam Vs. Satpal Saingh, AIR 2007 SC 581; [b] Popat and Kotecha Property vs. State Bank of India Staff Association, [2005] 7 SCC 510; [c] Ashraf Kokkur v. KV Abdul Khader & Ors., [2015] 1 SCC 129; [d] Chhotanben & Anr. vs. Kiritbhai Jalkrushnabhai Thakkar [2018] 6 SCC 422 16. Shri Salil Thakore, learned counsel for the respondent-defendant submitted that the trial Court was fully justified in coming to the conclusion that there were virtually no dates mentioned in the plaint, and therefore, the Court was not in a position to identify the due date in respect of the outstanding to the plaintiff. The trial Court has further observed that computation of the exact amount due from the defendant to the plaintiff cannot be said to be precise an accurate. That, the plaint, documents produced by the plaintiff does not bear any dates, and therefore, the Court below was not in a position to compute the amount claimed by the plaintiff. It was further submitted that the cause of action for filing of the suit by the plaintiff was not apparently pleaded or can be re....
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....ed by the Court below and no interference is required by this Court. It was requested by learned counsel for the respondent to dismiss the appeal and thereby confirm the decision. In support of his arguments, the following decisions were relied upon. [a] Church of Christ Charitable Trust & Educational Charitable Society [Represented by its Chairman] vs. Ponniamman Educational Trust [Represented by its Chairperson/Managing Trustee], reported in [2012] 8 SCC 706; [b] Hardesh Ores [P] Limited vs. Hede & Company, reported in [2007] 5 SCC 614; [c] Shri H.D. Vashista v. M/s. Glaxo Laboratories [I] Private Limited, reported in [1978] 1 SCC 170; [d] T. Arivandandam v. T.S. Satyapal & Anr., reported in AIR 1977 SC 2421 [1]. [e] Madras Steam Navigation Co. Limited v. Shalimar Works Limited., reported in AIR 1915 Cal. 681; [f] Shyam Sundar Mishra vs. Municipal Chairman, Parlakimedi, reported in AIR 1964 Orissa 111; [g] Union of India v. Bikaner Textiles & Ors., reported in AIR 1961 Raj 211; and [h] Gurdit Singh & Ors. vs. Munsha Singh & Ors., reported in [1977] 1 SCC 791. 17. Before we deal with the contentions of the ....
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....he language of the letter dated March 4, 2010 indicates that there was an acknowledgment of debt by the defendant to the plaintiff. In para 28 of the order, the trial Court has observed as under: "28. This court is in no doubt that when the request for regularizing the plot is made before authorities, and readiness and willingness to pay the due amount for regularization of the plot (albeit, by a third-party on behalf of the defendant), the conditions of Section 25 of the Indian Contract Act stands satisfied. The same would amount to acknowledgment of the debt with a promise to pay and therefore a fresh period of limitation from 19.03.2010 would commence. Naturally, therefore when the suit was filed on 16.08.2011, it was within the period of limitation. This court does concluded that the present application under Order 7 Rule 11 of the Code cannot be sustained for the suit being allegedly time barred." 19. Now, before dealing with factual scenarios, the spectrum of Order VII Rule 11 CPC in the legal ambit needs to be noted. 20. While allowing the appeal, the Supreme Court in Chhotanben & Anr. vs. Kiritbhai Jalkrushanabhai Thakkar & Ors. [Supra] in para 15 has observe....
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....erments made in the plaintiff in para-9, we are of the opinion that the plaintiff has clearly pleaded the cause of action for filing the suit. 23. In case of Virendra Nath Gautam v. Satpal Singh [Supra], the Apex Court in connection with provision enunciated in Sections 62, 83 of the Representation of People Act, 1951 read Order VII Rule 11[a] CPC has observed as under:- "31. The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', 'indispensable', 'elementary' or 'primary' [Burton's Legal Thesaurus (Third Edn.); P349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of ....
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....of the plaint. There is a difference between non disclosure of cause of action in the plaint and the absence of cause of action for the suit. It is not competent for the Court to go into the correctness or otherwise of all the allegations constituting the cause of action, correctness or otherwise of the allegations constituting the cause of action is beyond purview of Order VII Rule 11[a] CPC where the allegations made in the plaint prima facie discloses cause of action, the plaint cannot be rejected. 27. The Apex Court in the case of Hardesh Ores [P] Limited v. Hede & Company [Supra], in its decision at para 25 has held and observed as under:- "25. The language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that 'law' within the meaning of clause (d) of Order 7 rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint ....
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....rises only if the offer contained in the p73 letters has been accepted by the respondent, so as to ripen into an agreement. And if there was no concluded agreement between the parties, as the Tribunal itself had held, then the further question as to whether it was supported by consideration would not arise, nor would there be any question of its becoming a one of the terms of the service." 31. In the case of Shri HD Vashistha v. M/s. Glaxo Laboratories [I] Private Limited [Supra], the Apex Court held that a suit challenging the dismissal cannot stand, if the material facts necessary to constitute a cause of action regarding the illegality of the dismissal had not been averred in the plaint. 32. In the case of T. Arivandandam v. T.S. Satyapal & Anr. [Supra], the Apex Court held that, "...the trial Courts should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage." 33. In the case before Calcutta High Court in the matter between Madras Steam Navigation Company Limited vs. Shalimar Works Limited, Division Bench of this Court, in its decision at para 8, held and observed as under: "8. It may b....
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....(Mark 4/10). In such letter, it was conveyed that the defendant is "ready and willing to deposit all the outstanding dues of GMB as per rules and regulations, subject to regularizing each plot permanently". According to the learned Judge, this amounted to acknowledgment of the due with promise to pay. In terms of section 25(3) of the Indian Contract Act, the learned Judge was of the opinion that from such date, the plaintiff would have a fresh period of limitation for filing the suit. Accordingly therefore, when the suit was filed on 16th August 2011, in the opinion of the learned Judge, was within the period of limitation. 38. In our opinion, the contents of the said letter (Mark 4/10) do not establish a promise to pay the debt. It was merely an offer to pay the dues; subject to regularizing the plot permanently. This was thus, a conditional offer and not an unconditional promise to pay. In terms of this offer, if the plaintiff had accepted the terms only then the same would result into a concluded contract. In any case, the offer for payment was not unconditional and therefore, could not be seen as a promise. As referred to in sub-section (3) of section 25 of the Contract Act ....