TMI Blog2020 (6) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance with the rules and the appellant need not correspond with the Bank in that regard any further. This firm response from the respondent-Bank could trigger the right of the appellant to sue the respondent-Bank. Moreover, the fact that the appellant had eventually sent a legal notice on 28.11.2003 and again on 7.1.2005 and then filed the suit on 23.2.2005, is also invoked as giving rise to cause of action. Reverting to the argument that exchange of letters or correspondence between the parties cannot be the basis to extend the period of limitation, for the view taken hitherto, the same need not be dilated further. Inasmuch as, having noticed from the averments in the plaint that the right to sue accrued to the appellant on receiving letter from the Senior Manager, dated 8.5.2002, and in particular letter dated 19.9.2002, and again on firm refusal by the respondents vide Advocate s letter dated 23.12.2003 in response to the legal notice sent by the appellant on 28.11.2003; and once again on the follow up legal notice on 7.1.2005, the plaint filed in February, 2005 would be well within limitation. Considering the former events of firm response by the respondents on 8.5.2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed in Article 113 of the Limitation Act, 1963 (for short, the 1963 Act ), as applicable to the present case, from the date when the right to sue accrued to the appellant in October, 2000. The entire discussion of the trial Court in that regard can be traced to paragraphs 10 and 11, which read thus: 10. As stated above the plaintiff by way of present suit has sought two reliefs i.e. rendition of account and repayment of excess money. Limitation Act, 1963 does not provide any specific article with regard to time period within which accounts can be sought by party from its bank. As such, Article 113 of Limitation Act came into picture which provides a limitation period of three years for suits for which no limitation period is provided, from the date when right to sue accrues. 11. In the present case in hand, as per averments made by the plaintiff in his plaint, the facility was availed by the plaintiff from the defendants till October 2000. Further as per averments made in the plaint the alleged amount so charged by the defendant from the plaintiff, in excess from agreed amount, was till October, 2000. As such, at best can be said right to sue accrues in favour of the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is evident that the suit is barred by any law including the law of limitation. This position is no more res integra. We may usefully refer to the decision of this Court in Ram Prakash Gupta vs. Rajiv Kumar Gupta Ors. (2007) 10 SCC 59 . In paragraph Nos. 13 to 20 of the reported decision, the Court observed as follows: 13. As per Order 7 Rule 11, the plaint is liable to be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) 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; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9. 14. In Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557] it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hairsplitting technicalities. 20. For our purpose, Clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett Co. Ltd. vs. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. vs. Vessel M.V. Fortune Express, (2006) 3 SCC 100. 12. It is also useful to refer the judgment in T. Arivandandam vs. T.V. Satyapal, (1977) 4 SCC 467, wherein while considering the very same provision i.e. Order 7 Rule 11 and the duty of the trial court in considering such application, this Court has reminded the trial Judges with the following observation: (SCC p. 470, para 5) 5. The learned Munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage. Keeping in mind the well settled legal position, we may now proceed to analyse the averments in the plaint, as filed by the appellant, to discern whether it was a fit case for rejection of the plaint under Order VII Rule 11(d) of the CPC. As noticed from the trial Court judgment, it is evident that the trial Court did not make any attempt to analyse the plaint in the manner predicated in the aforesaid decisions. Even the District Court dealing with first appeal and the High Court with second appeal omitted to do so. It is the bounden duty of the Court to examine the plaint as a whole and not selected averments therein. For that, we need to advert to the averments in the plaint. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the details of the proposed/estimated excess amount charged were given and it was requested that a sum of Rs.31,57,484/approximately appears to have been charged in excess of what should have been actually charged and the exact amount should be calculated and refunded to the Plaintiff. No reply was given by the Bank to these letters. 15. That Senior Manager of the Defendant No. 2 vide letter dated 19.09.2002 had informed that everything was done according to rules and the matters need not to be pursued any further and thereafter the Plaintiff sent another letter dated 03.06.2003. (emphasis supplied) Again, in paragraph 28 of the plaint, it is stated as follows: 28. That the cause of action to file the suit accrued in favour of the Plaintiff and against the Defendants when the illegal recoveries were noticed and letter dated 21.07.2000 was sent to the Defendants to clarify as to how the interest was being calculated and recovered and on various other dates when the letters were sent to the Defendants with request for refund of the excess amounts charged and on 9.7.2001 when assurance for proper calculation and refund was conveyed to the Plaintiff and on 8.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the appellant need not pursue the matter any further. It is asserted that despite this intimation, the appellant continued to correspond with the respondent-Bank with a sanguine hope that the issue will be resolved at the appropriate level by the Bank and finally issued a legal notice on 28.11.2003, which was duly responded to by the respondent-Bank vide Advocate s letter dated 23.12.2003. Nevertheless, the appellant gave another legal notice on 7.1.2005 and thereafter, proceeded to file the subject suit in February, 2005. 7. All these events have been reiterated in paragraph 28 of the plaint, dealing with the cause of action for filing of the suit. Indeed, the said paragraph opens with the expression the cause of action to file the suit accrued in favour of the plaintiff and against the defendants when the illegal recoveries were noticed and letter dated 21.7.2000 was sent to the defendants to clarify as to how the interest was being calculated. This averment cannot be read in isolation. As aforesaid, on reading the plaint as a whole, it is seen that the gravamen of the case made out in the plaint is that the appellant noticed the discrepancy in July, 2000 and immediate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not arise. 9. The expression used in Article 113 of the 1963 Act is when the right to sue accrues , which is markedly distinct from the expression used in other Articles in First Division of the Schedule dealing with suits, which unambiguously refer to the happening of a specified event. Whereas, Article 113 being a residuary clause and which has been invoked by all the three Courts in this case, does not specify happening of particular event as such, but merely refers to the accrual of cause of action on the basis of which the right to sue would accrue. 10. Concededly, the expression used in Article 113 is distinct from the expressions used in other Articles in the First Division dealing with suits such as Article 58 (when the right to sue first accrues), Article 59 (when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him) and Article 104 (when the plaintiff is first refused the enjoyment of the right). The view taken by the trial Court, which commended to the first appellate Court and the High Court in second appeal, would inevitably entail in reading the expression in Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing upon the last day when the cause of action therefor arose. (emphasis supplied) 12. Similarly, in Khatri Hotels Private Limited Anr. Vs. Union of India Anr. (2011) 9 SCC 126 , this Court considered the expression used in Article 58 in contradistinction to Article 120 of the old Limitation Act (the Indian Limitation Act, 1908). In paragraph 24, the Court noted thus: 24. The Limitation Act, 1963 (for short the 1963 Act ) prescribes time limit for all conceivable suits, appeals, etc. Section 2(j) of that Act defines the expression period of limitation to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 3 lays down that every suit instituted, appeal preferred or application made after the prescribed period shall, subject to the provisions of Sections 4 to 24, be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article. In other words, the residuary article is applicable to every kind of suit not otherwise provided for in the Schedule. (emphasis supplied) The distinction between the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued. (emphasis supplied) Notably, the expression used in Article 113 is similar to that in Article 120, namely, when the right to sue accrues . Hence, the principle underlying this dictum must apply proprio vigore to Article 113. 13. It is well established position that the cause of action for filing a suit would consist of bundle of facts. Further, the factum of suit being barred by limitation, ordinarily, would be a mixed question of fact and law. Even for that reason, invoking Order VII Rule 11 of the CPC is ruled out. In the present case, the assertion in the plaint is that the appellant verily believed that its claim was being processed by the Regional Office and the Regional Office would be taking appropriate decision at the earliest. That belief was shaken after receipt of letter from the Senior Manager of the Bank, dated 8.5.2002 followed by another letter dated 19.9.2002 to the effect that the action taken by the Bank was in accordance with the rules and the appellant nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant about unilateral charging of interest/commission by the respondent-Bank was firmly denied or refused by the Senior Manager of the respondent-Bank vide letter dated 8.5.2002 and in particular letter dated 19.9.2002 and again by Advocate s letter on 23.12.2003, giving rise to cause of action and accrual of right to sue. 16. The respondents had also relied on the dictum of this Court in Fatehji And Company Anr. vs. L.M. Nagpal Ors. (2015) 8 SCC 390. Indeed, in that case, this Court upheld the order of rejection of plaint on the finding that the suit was barred by limitation under Article 54 of the 1963 Act, in the fact situation of that case. The Court was dealing with a suit for specific performance of a written agreement of sale dated 2.7.1973 and as per the terms, the performance of the contract was fixed for 2.12.1973. In that background, the Court noted that the subsequent letters exchanged between the parties cannot be the basis to extend the period of limitation. Moreover, the Court dealt with the case governed by Article 54 of the 1963 Act, which stipulates the timeline for commencement of period of limitation, being the date fixed for the performance, or, if no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 58 of the 1963 Act, which specifically provides that time begins to run when the right to sue first accrues. In Ram Prakash Gupta (supra), the Court dealt with a case governed by Article 59 of the 1963 Act, which provides that the suit could be filed when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. The Court opined that the knowledge mentioned in the concerned plaint could not be termed as inadequate and incomplete. The Court reversed the judgment of the Civil Judge and the High Court rejecting the plaint. This Court also noted that while deciding the application under Order VII Rule 11 of the CPC, few lines or passage from the plaint should not be read in isolation and the pleadings ought to be read as a whole to ascertain its true import. Even in that case, the trial Court and the High Court had failed to advert to the relevant averments, as stated in the plaint, which approach was disapproved by this Court. In the present case, as noticed earlier, the trial Court had failed to advert to and analyse the averments in the plaint, but selectively took notice of the assertion i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and Senior Manager indicating therein that the amount overcharged should be refunded to the plaintiff with interest thereon: Letter dated 12.10.2000, 24.10.2000, 30.10.2000, 7.11.2000, 24.12.2000, 01.03.2001, 28.03.2001, 22.05.2001 and 20.06.2001. In all the above letters requests were made to clarify as to how the commission was calculated and deducted from the plaintiff. 11. That the Assistant General Manager, Sh. P.S. Bawa of Regional OfficeB, Delhi vide letter dated 9.7.2001 informed the plaintiff that the comments of the Branch Office have been invited on the representation of the plaintiff in respect of the local cheques/DDs discounted during the relevant period and the matter will be decided as early as possible. No progress was made in the matter and the plaintiff had to submit letter dated 31.10.2001 to the Hon ble Finance Minister, Govt. of India, New Delhi. 12. That the defendants have charged interest for some time for the actual number of days for the defendants remained out of funds. 13. That vide letter dated 08.05.2002, the Senior Manager informed the plaintiff that the cheques were being purchased at the prevailing rates. That repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered and on various other dates when the letters were sent to the defendants with request for refund of the excess amounts charged and on 9.7.2001 when assurance for proper calculation and refund was conveyed to the plaintiff and on 8.5.2002, 12.7.2002 and 22.9.2002 when requests were again made to settle the matter on 19.9.2002, 3.6.2003 and their cause of action arose on 28.12.2003 where the legal notice was served upon the defendant and on 23.12.2003 when the reply to the notice was received and finally on 08.01.2005 when the legal notice for rendition of accounts was served upon the defendants and the cause of action still subsists as the accounts have not been rendered so far nor the excess amount charged has been refunded by the Defendants. 3. We have considered the factual position in the present case, which is similar to the facts in the companion appeal. Therefore, for the reasons stated in the judgment in companion appeal arising from SLP(C) No. 30209/2017, even this appeal should succeed on the same terms. Accordingly, this appeal is also allowed and the impugned judgment and order of the trial Court, the first appellate Court and the High Court in second appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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