B.S. Sringeshwara Rao vs N.S. Madhava

S. Sujatha, J.—The order passed on I.A. No. 2 in O.S. 2034/2011 dated 22.09.2012 on the file of the Principal Civil Judge, Jr. dvn., Mysore is called in question in this writ petition by the defendant/petitioner.

For the sake of convenience. The parties are referred to as per their rank in the trial Court.

The plaintiff sought a decree in O.S. No. 2034/2011 on the file of Principal Civil Judge, Jr. dvn., Mysore in a sum of Rs. 2,97,596.55 against the defendant claiming that in the year 2007 the defendant borrowed a sum of Rs. 6,00,000/- in cash from him and issued a cheque for the said sum and upon the dishonor of the cheque, filed a criminal case which was concluded by order dated 3.2.2011 directing the defendant to pay a sum of Rs. 6,30,000/- and this claim is towards claiming interest on the amount of Rs. 6,00,000/-. The defendant filed written statement and contested the suit. In the said proceedings, an application under Order VII Rule 11(a) & (d) CPC was filed by the defendant seeking for rejection of the plaint which was objected by the plaintiff. After hearing the rival arguments of the learned counsel appearing for the parties, the learned Civil Judge by order dated 22.09.2012 dismissed the application filed by the defendant against which this writ petition is filed by the defendant challenging the legality and correctness of the said order.

Heard the learned counsel appearing for the parties.

The learned counsel appearing for the defendant vehemently argued that there is no cause of action reflected in the plaint to institute the suit and further, contended that the suit is barred by limitation, accordingly, sought for quashing the impugned order at Annexure-G to writ petition.

The learned counsel appearing for the plaintiff contended that in paragraph 8 of the plaint averments, it is clearly mentioned that the defendant has borrowed the amount for the purpose of business transactions and had agreed to pay the interest on the said borrowed amount by him. In view of the default in payment of loan amount by the defendant, the plaintiff is entitled to recover the loan amount with interest @ 18% p.a. from the date of borrowing of the loan till the realization of the entire loan amount. Further, the learned counsel also relied on Section 3 of the Interest Act to substantiate his claim. Reliance was placed on the Judgment of the Hon''ble Supreme Court in D. Purushotama Reddy and Another Vs. K. Sateesh, and sought for dismissal of writ petition.

Order VII Rule 11(a) and (d) of CPC reads thus:

Rejection of plaint:-The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) ..

(c) ..

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) ..

(f) ..

The defendant has filed the LA. No. 2 under Order VII Rule 11(a) and (d) of CPC seeking for rejection of the plaint. The plaint can be rejected only if the clauses mentioned therein are satisfied. Now, it is the case of the defendant that, firstly, no cause of action has been disclosed in the plaint and secondly, from the plaint averments suit appears to be barred by law.

It is settled law that the cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. The plaint is liable to be rejected only on the averments made in the plaint not on the defence taken in the written statement. Mere fact that plaintiff may not succeed is not a ground for rejecting the plaint. This view is supported by the Judgment of the Apex Court in Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, and Liverpool and London S.P. and I Asson. Ltd. Vs. M.V. Sea Success I and Another, .

A careful perusal of the plaint averments in its entirely discloses that there is a cause of action for the plaintiff to institute the suit. Merely because the details of the agreement entered into between the parties for claiming the interest is not disclosed in the plaint, the defendant cannot plead that there is no cause of action disclosed in the plaint. Once the averments are made that the defendant has agreed to pay the interest @ 18% p.a. it is for the plaintiff to substantiate his claim in the course of trial. Whether the suit has to be rejected as barred by limitation is also a question for trial and a triable issue cannot be rejected at the threshold. Accordingly, no exception can be made with the order passed by the trial court in rejecting I.A. No. 2. The writ petition being devoid of merits is accordingly dismissed.