K. Nagarathnamma vs Sree Sreenivasa Financial Services

P.S. Narayana, J.—Heard Sri V. Vara Prasad Reddy, the learned Counsel representing Sri G. Sravankumar, the learned Counsel for the revision petitioner/defendant.

This Court ordered notice before admission on 17.03.2009 and granted interim stay for a limited period, which had been extended for a further limited period.

Though the respondent/plaintiff had been served none represents him.

Sri V. Vara Prasad Reddy, the learned Counsel representing Sri G. Sravankumar, the learned Counsel for the revision petitioner/defendant, had taken this Court through the contents of the affidavit filed in support of the application praying for rejection of the plaint and would maintain that in the facts and circumstances of the case since the suit is based on the strength of a promissory note, which is clearly barred by limitation and when that being so, the very numbering of the suit is bad in law. The learned Counsel also further pointed out the relevant paras and would maintain that even in the light of the nature of Court Fee, which had been paid since the suit is based on the strength of a promissory note only, no purpose would be served in further proceeding with the matter and since the plaint can be rejected at any stage, the learned II Additional Junior Civil Judge, Kurnool, could have rejected the plaint instead of dismissing the application. The learned Counsel also would further point out that mere fact that a criminal case had been filed and the same ended in conviction and a criminal appeal had been preferred, which also had been dismissed and subsequent thereto a criminal revision case is pending against the same before this Court may not seriously alter the situation as far as the application for rejection of plaint is concerned. In the light of the specific grounds raised, inasmuch as it would not disclose any cause of action, the plaint has to be rejected.

Heard the learned Counsel.

The present civil revision petition is filed against the order, dated 19.02.2009, made in I.A. No. 1228 of 2008 in O.S. No. 1300 of 2007 on the file of the II Additional Junior Civil Judge, Kurnool.

The said application was filed by the petitioner/defendant under Order VII Rule 11(c) and (d) of the CPC praying for rejection of the plaint. The learned Judge after recording the respective stands taken by the parties in the affidavit filed in support of the application and the counter, having formulated the point for consideration at para 4 of the impugned order, recorded reasons at para 7 and, ultimately, dismissed the application. Aggrieved by the same, the present civil revision petition had been preferred.

The petitioner/defendant had taken a specific stand that the suit was instituted against her for recovery of the suit amount based on a promissory note, dated 25.11.2002, and the said suit was filed on 23.06.2007 i.e., after the lapse of the period of limitation. Hence, the suit is clearly barred by limitation. It is also her case that the respondent/plaintiff and his Counsel by misleading and misrepresenting the Court had got the suit numbered. There is no cause of action to file the suit on the basis of the promissory note since it is barred by limitation and there is no point in further permitting the respondent/plaintiff to proceed with the suit. The specific plea taken in the written statement also had been pointed out. Some explanation had been given in the affidavit filed in support of the application relating to the alleged cheque transaction as well.

In the counter filed by the respondent/plaintiff, specific stand had been taken. That the suit was not instituted on the strength of the promissory note but for realization of the cheque amount bearing No. 0016923, dated 24.06.2004 for Rs. 45,700/- issued by the petitioner since the said cheque was dishonoured, the respondent/plaintiff filed criminal complaint u/s 138 of the Negotiable Instruments Act in C.C. No. 573 of 2004 on the file of the Judicial First Class Magistrate, Kurnool and therein the petitioner/defendant was convicted and the same was carried by way of a Criminal Appeal No. 19 of 2007 before the District Judge, Kurnool and the conviction was confirmed by dismissing the said criminal appeal and the matter was further carried to the High Court of Andhra Pradesh by way of a criminal revision case. It is stated that at present the same is pending.

The learned Counsel for the petitioner relied on the decision in Shakti Sugars Limited Vs. Union of India and State Trading Corporation of India, , wherein the learned Judge of the Delhi High Court at paras 12 and 15 observed as follows:

But the law in this respect is laid down by the Supreme Court in T. Arivandandam Vs. T.V. Satyapal and Another, . It is laid down that if on a meaningful and not formal reading of a plaint it is manifest that the plaint is vexatious or meritless in the sense of not disclosing a clear right to sue trial Court should exercise its power under Order VII Rule 11, Code of Civil Procedure, and should reject the plaint. So it is meaningful reading of the plaint, which is required. It is to be seen if actually according to law, on the allegations contained in the plaint, defendant No. 2 was agent of the Union of India or not. Mere formal allegation of the plaintiff that defendant No. 2 was agent of the Union of India is not to be accepted. In view of the Supreme Court authority, it is the duty of the Court to probe whether allegations made in the plaint make defendant No. 2 as agent and the Union of India as the principal according to law. I have already held that according to law defendant No. 2 was not agent of the Union of India and that being so plaint does not disclose any cause of action against the latter.

I, therefore, accept the application and reject the plaint with costs under Order VII Rule 11, CPC against the Union of India, defendant No. 1.

The learned Judge, in fact, followed the legal proposition laid down in T. Arivandandam Vs. T.V. Satyapal and Another, .

The application is filed under Order VII Rule 11(c) and (d) of the CPC (hereinafter in short referred to as "the Code") for the purpose of convenience.

Order VII Rule 11 of the Code deals with rejection of plaint and Order VII Rule 11(c) of the Code specifies that the plaint shall be rejected in the following cases where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so.

It is needless to say that the said Order VII Rule 11(c) of the Code is not applicable to the facts of the case. May be that the learned Counsel is relying on Order VII Rule 11(a) of the Code, which specifies that the plaint shall be rejected in the following cases: where it does not disclose a cause of action. Further, Order VII Rule 11(d) of the Code specifies that the plaint shall be rejected in the following cases: where the suit appears from the statement in the plaint to be barred by any law. The principal contention of Sri V. Vara Prasad Reddy, the learned Counsel representing the revision petitioner is that since the suit is principally based on the strength of a promissory note, it being barred by limitation, it does not disclose any cause of action and also the suit is barred by limitation and, hence, on both the grounds, the plaint is liable to be rejected.

The specific stand taken in the counter is that the suit is based on the strength of a cheque, which had been dishonoured for recovery of the amount covered by the said cheque transaction. It may be true that originally the promissory note might have been executed and subsequent thereto the cheque might have been issued. The plea of bar of limitation always cannot be said to be a pure question of law. It may be a mixed question of fact and law as well. Apart from this aspect of the matter, on a careful analysis of the averments made in the plaint, it cannot be said that this would fall under "where the suit appears from the statement in the plaint to be barred by any law." It is needless to say that these questions also may have to be decided on appreciation of the evidence, which may be adduced by the parties. Hence, in the light of the same, the impugned order does not suffer from any illegality whatsoever. However, it is made clear that the petitioner/defendant is at liberty to agitate these questions at the appropriate stage.

With the aforesaid liberty, the Civil Revision Petition shall stand dismissed at the stage of admission. No order as to costs.