Revansiddayya vs The State Bank of India

G. Narendra, J.—Heard the learned counsel for the petitioner. Petitioner is aggrieved by the order of the learned Prl. Civil Judge and JMFC at Gulbarga passed on I.A. II filed by the petitioner under order 7 Rule 11(d) of CPC, which has been rejected by the court below by its order dated 22.08.2015.

The case of the petitioner is that the plaintiff who is the respondent herein had advanced loan on the mortgage 100 bags of turdal and that the respondent -Bank approached the Permanent Lok Adalath by way of filing a suit in O.S. No. 142/2014 for settlement of the dispute regarding non-payment based on the agricultural demand loan agreement dated 27.01.2010. That the petitioner had also executed an on demand promissory note and under the demand promissory note the petitioner had agreed to repay the loan amount with interest at the rate of 10% p.a. within a period of 12 months from the date of availing of the loan and 100 bags of turdal were pledged to the Bank.

That after availing the loan the petitioner failed to repay the amount within the agreed time and thereby the respondent violated the terms and conditions of the said loan. Hence, the respondent-Bank approached the Permanent Lok Adalath under the provisions of 22(c)(1) of Legal Services Authorities Act, 1987.

This Court by its order in W.P. Nos. 84754-755/2010 had held that the Banks are not notified as ''public utility service'' and hence, the Permanent Lok Adalath has no jurisdiction to entertain the dispute between the Bank and his customers.

The petitioner upon receipt of notice from the Permanent Lok Adalath appeared and preferred an application under Order 7 Rule 11(d) of CPC stating that Permanent Lok Adalath has no jurisdiction to entertain the dispute. In view of the judgment and order of this court rendered in Timmyya''s case. The Permanent Lok Adalath appreciating the contentions has allowed the application filed by the petitioner and was pleased to reject the dispute raised by the Bank on the ground that the same is not maintainable.

Thereafter the respondent - Bank has preferred O.S. No. 142/2014 praying for the recovery of the amounts due under the loan agreement amount to Rs. 2,29,210/- which amount includes interest up to 31.01.2014. The respondent plaintiff had also preferred an application under Section 14 of Limitation Act, praying for exclusion of the time spent by it while prosecuting the petition before the Permanent Lok Adalath. The said application is numbered as IA-I. It is not in dispute that the said IA-I filed for condonation of delay are rather for exclusion of the time bona fide spent by the plaintiff before the Permanent Lok Adalath is pending consideration.

The petitioner who is the defendant has entered appearance and again filed IA-II under the provisions of Order 7 Rule 11 (d) of CPC, stating that the suit is barred by law i.e. by the Limitation Act, in view of the fact that there is delay of 431 days in filing the suit and he would seek for rejection of plaint.

The trial Court after hearing the parties has been pleased to reject IA-II by its order dated 22.08.2015. Aggrieved by the order, the petitioner is before this Court by way of this revision petition calling in question the impugned order dated 22.08.2015.

Learned counsel for the petitioner would state that the trial Court has erred in rejecting IA-II. He would state that there is no bona fide on behalf of respondent/plaintiff and that the petition before the Permanent Lok Adalath was filed by the respondent/plaintiff knowing fully well that the same was not maintainable and they ought to be aware of the judgment of this Court in Timmayya''s case. He would further submit that the trial Court ought to have taken up IA-I for consideration on a priority and ought not to have taken up IA-II for consideration and on this singular ground the petition requires to be allowed.

It is seen that the primary and sole contention of the petitioner in IA-II filed under the provisions of Order 7 Rule 11(d) of CPC, is that the suit is barred by law as it is preferred after a delay of 431 days, which could not be excluded by invoking Section 14 of Limitation Act. The trial Court after considering the petition averments and the objections preferred by the plaintiff bankers has been pleased to pass a considered order rejecting the same on the ground that the issue of exclusion of time has to be gone into in the application which is pending and that the issue involves both facts and question of law and hence, the trial Court has deemed it necessary to keep in abeyance the consideration of IA-I. As it involves determination of fact and legal issues and the same is to be considered after affording an opportunity to the parties to adduce evidence.

The counsel for the petitioner would object to the same. He would submit that it purely involves only legal issues and no factual issues are involved, which calls for adducing evidence. He would also submit that prima facie it can be demonstrated that the plaint before the Court is not the same petition that was filed before the Permanent Lok Adalath. He would pointed out that under the petition a sum of Rs. 2,10,308/- was claimed but under the plaint a sum of Rs. 2,92,210/- is demanded. He would draw the attention of this Court to paragraph No. 11 of the petition before the Permanent Lok Adalath, and paragraph No. 11 of the plaint before the trial Court, wherein the plaintiff has detailed the amount claimed. The answer to this contention of this petition lies in there itself. In paragraph No. 11 of the petition before the Permanent Lok Adalath, a sum of Rs. 2,10,308/- has been claimed along with interest up to 11.01.2013, whereas under the plaint a sum of Rs. 2,29,210/- including interest up to 31.10.2014 is claimed. The IA is also based on the ground of delay which issue is still pending before the Court.

In that view of the matter, the present application is nothing but duplicating the issue already under consideration of the Court in IA-I. In the event of IA-I being disallowed the suit of the plaintiff will automatically fail in a sense IA-II is premature and superfluous as it calls for consideration of the issue which is also pending in the form of IA-I. The Court while rejecting the IA-II has observed that the question of limitation is kept open at this stage and it would be decided after giving an opportunity to both the parties to adduce their evidence. Hence, I do not find any illegality in the reasons accorded by the trial Court for rejecting IA-II. Accordingly, the present Civil Revision Petition is rejected.

The learned counsel for the petitioner would submit that a direction may be issued to the trial Court to dispose of IA-I.

It is open to the petitioner to move the application for consideration of the issue of limitation as preliminary issue. In the event, such an application is moved the same shall be considered and disposed off as expeditiously as possible by the trial Court.