Smt. Vidushi Garg @APPELLANT@Hash M/s Gauri Sales

,,

Present first appeal is directed against the order dated 28.10.2017 passed by Additional District & Session Judge, No.7, Jaipur Metropolitan, Jaipur",,

whereby the trial court allowed the application filed by the defendants under Order 7 Rule 11 CPC and rejected the plaint under Order 7 Rule 11,,

CPC.,,

Brief facts giving rise to this appeal are that the appellantplaintiff filed a suit for recovery of Rs.20 lacs and interest accrued thereon. In the plaint, it",,

is stated that defendants-respondents took a loan vide cheque dated 18.02.2013 which was encashed on 23.02.2013 with an assurance and agreement,,

that the same would be returned after 1-2 months. It is also stated in the plaint that the defendants did not return the aforesaid loan amount within the,,

stipulated period despite several requests made by the plaintiff. Ultimately a legal notice was sent to the defendants on 17.08.2013, asking them to pay",,

the loan amount. The same was replied by the defendants denying the said amount to be a loan.,,

The defendants resisted the suit by filing written statement wherein they denied the plaint allegation. After filing the written statement an application,,

under Order 7 Rule 11 CPC was filed by the defendants wherein it was stated that as per the plaintiff, loan was given on 23.02.2013 through the",,

cheque whereas the suit was filed on 12.08.2016. Therefore, the suit is prima facie time barred in view of Article 19 & 20 of the Limitation Act, 1963.",,

Therefore, the suit is liable to be rejected. Plaintiff resisted the application by filing reply wherein it was stated that the question of limitation is a mixed",,

question of law and fact and the same should be decided after taking evidence of both the parties. It is also stated in the reply that at this stage,,

question of limitation cannot be decided since in the plaint, it was stated that cause of action had arisen on 15.07.2016 when defendants refused to pay",,

the loan amount.,,

4.. After hearing both the parties, learned trial court allowed the application under Order 7 Rule 11 CPC and rejected the plaint.",,

Hence, this first appeal.",,

It is submitted by learned counsel for the appellant that impugned order dated 28.10.2017 is contrary to the facts and against the provisions of law.,,

The issue of limitation in the present suit is a mixed question of law and fact and the same cannot be adjudicated without recording evidence of the,,

parties. It is submitted that the present case does not fall under Article 19 & 20 of the Limitation Act but the same falls either under Article 113 or,,

Article 55 of the Limitation Act. Thus, the present suit cannot be held to be barred by Limitation. It is also submitted that from the allegation of the",,

plaint, it is clear that the present case is not a simplicitor case of granting loan by cheque but there was an agreement/contract between the parties as",,

pleaded in the plaint. It was specifically pleaded in the plaint that the defendants assured to refund the amount within 1-2 month. These fact can only,,

be decided after taking evidence of both the parties.,,

In support his contentions, learned counsel for the appellant has placed reliance on the following judgments:-",,

(2014) 16 SCC 125, Surjit Kaur Gill & Anr. Vs.Adarsh Kaur Gill & Anr.;",,

(2006) 5 SCC 658, Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust & Ors.;",,

(2005) 6 SCC 614, Narne Rama Murthy Vs.Ravula Somasundaram & Ors.;",,

AIR 1976 Andhra Pradesh 273, Shatzadi BegumSaheba & Ors. Vs. Girdharilal Sanghi & Ors.",,

On the other hand, learned counsel for the respondentsdefendants has submitted that as per the plaint allegation loan of Rs.20 lacs was given by the",,

plaintiff to the defendants on 23.10.2013 by cheque. In view of Article 19 & 20 of the Limitation Act, limitation starts from the date when the loan",,

was made. The present matter clearly falls under Article 19 & 20 of the Limitation Act and the trial court is right in holding that the present suit is,,

barred by limitation.,,

I have considered the rival submissions made by learned counsel for the parties and perused the material on record.,,

In Surjit Kaur Gill & Anr. (supra), the Hon'ble Supreme Court has held that issue of limitation is a mixed question of facts and law.",,

In Narne Rama Murthy (supra), the Hon'ble Apex Court has held that question of limitation is a pure question of law and if from the pleadings",,

itself, it becomes apparent that the suit is barred by limitation, then it is the duty of the Court to decide the question of limitation at the outset even in",,

the absence of a plea. But in cases where the question of limitation is a mixed question of law and fact and suit does not appear to be barred by,,

limitation on the face of it, then the same can be decided only after taking evidence of both the parties.",,

Question of limitation goes to the route of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has",,

no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.",,

Section 3 of the Limitation Act, 1963 reads as under:-",,

“3. Bar of limitation.â€" (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application",,

made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.",,

(2) For the purposes of this Actâ€" (2) For the purposes of this Act â€",,

(a) a suit is institutedâ€",,

(i) in an ordinary case, when the plaint is presented to theproper officer; (i) in an ordinary case, when the plaint is presented to the proper officer;",,

(ii) in the case of a pauper, when his application for leaveto sue as a pauper is made; and (ii) in the case of a pauper, when his application for leave to",,

sue as a pauper is made; and,,

(iii) in the case of a claim against a company which is beingwound up by the court, when the claimant first sends in his claim to the official liquidator;",,

(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;",,

(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been institutedâ€" (b) any claim",,

by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been institutedâ€"",,

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (i) in the case of a set off, on the same date as the suit in which",,

the set off is pleaded;,,

(ii) in the case of a counter claim, on the date on which thecounter claim is made in court; (ii) in the case of a counter claim, on the date on which the",,

counter claim is made in court;""",,

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.â€​,,

Hon’ble Supreme Court in V.M. Salgaocar & Bros. V. Board of Trustees of Port of Mormugao & Anr. (2005) 4 SCC,,

613 in paragraphs 20 & 21 observed as under:-,,

“20. The mandate of Section 3 of Limitation Act is that it is the duty of the Court to dismiss any suit instituted after the prescribed period of,,

Description of suit,Period of Limitation,"Time from which period begins

to run

For money payable for

money lent.",Three years,"When the loan is payable for

money made.

20. Like suit when a cheque

for the money",Three years,"When the cheque is the lender

has given paid