In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976. {Para 52}
15. Since the determination of the issue of limitation in this case is not a pure question of law, it cannot be decided as preliminary issue under Order XIV Rule 2 of the CPC.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 814 of 2022
M/s Mongia Realty and Buildwell Private Limited Vs Manik Sethi
Coram: Dr. Dhananjaya Y. Chandrachud; Surya Kant, JJ.
Author: Dr. Dhananjaya Y. Chandrachud, J.
Dated: January 31, 2022
1. Leave granted.
2. This appeal arises from a judgment of a Single Judge of the High Court
of Delhi in RFA No 5 of 2019. The trial Court dismissed the suit instituted by
the appellant on the ground of limitation, by a judgment dated 16 August
2018. The High Court upheld the dismissal of the suit on that ground.
3. The appellant instituted a suit against the respondent on 31 March 2017 (Civil Suit No 76 of 2017 (new number 355 of 2017)) under Order 37 of the Code of Civil Procedure 1908 (“CPC”) for the recovery of an amount of Rs 1,11,63,633 together with interest at the rate of 18% per annum from the date of the institution of the suit till the realization of the full amount. The respondent filed a written statement on 24 May 2017. An application was filed under Order 7 Rule 11 of the CPC for the rejection of the plaint on the
ground that the suit was barred by limitation. On 4 January 2018, the trial
Court framed a preliminary issue on whether the suit was barred by
limitation. On 15 March 2018, the appellant was granted an opportunity to
file its replication and the suit was adjourned to 26 April 2018 for
addressing arguments on the preliminary issue. The appellant filed its
replication on 20 April 2018. On 26 April 2018 and 23 May 2018, an
adjournment was granted by the trial Court. On 26 July 2018, the trial Court
rejected a plea for an adjournment made by the appellant. Oral arguments
were heard on behalf of the respondent and the appellant was granted
fifteen days’ time to file written arguments. The appellant failed to file the
written arguments before 10 August 2018. On 16 August 2018, the trial
Court declined to grant any further time and by its judgment decided the
issue of limitation against the appellant. The appellant carried the matter in
appeal in RFA No 5 of 2019. The Single Judge of the High Court dismissed
the appeal by the impugned judgment dated 4 September 2019.
4. The case of the appellant is that the respondent had requested the
appellant to grant a business loan from time to time, and the request was
acceded to by the appellant. The loans were stated to be repayable with
interest at the rate of 18% per annum. The appellant claims to have
advanced an amount of Rs 10 lakhs on 13 June 2012, 18 lakhs on 11 July
2012 and Rs 15 lakhs on 21 December 2012 by cheques drawn on Axis
Bank, and a further amount of Rs 39 lakhs. The case of the appellant is
that the respondent partly discharged his liability and that he is entitled to a
decree for the balance in the amount of Rs. 1,11,63,633 along with an
interest at 18% per annum. Paragraph 5 of the plaint contains the following
averments:
“The aforesaid loans have been given by the plaintiff to the defendant always
with an understanding that aforesaid loans shall be returned along with interest
@ 18% p.a. That the aforesaid loans were repayable within one year from the
date of payment of the last instalment of the loan i.e. latest by 9th of April, 2014.
However, the defendant was to pay interest on the aforesaid loan amounts on half yearly basis @ 18% p.a. to the plaintiff.”
5. In paragraph 10 of the plaint, it has been pleaded that though two and a
half years had elapsed since the date for repayment of the loan, the
respondent had failed to pay the outstanding amount. The appellant has
also set up the case that a running account has been maintained between
the parties in pursuance of which, the last payment was made on 24
October 2013.
6. The defense in the written statement filed by the respondent is that the
respondent provided real estate services to the appellant for which
commission was being paid by the appellant. It was alleged that payments
made for business transactions are in a malafide manner portrayed as loan
transactions. On some occasions, it is alleged, payments were made for
carrying out renovation work in the properties. The respondent has denied
that there were any loan transactions, and on the contrary, set up the plea
that the transactions between the parties pertain to the payment of
commission by the appellant to the respondent in connection with real
estate transactions.
7. On the preliminary issue framed on the question of limitation, no
evidence was adduced by the respondent. The trial Judge heard the
preliminary issue only on the basis of arguments at the Bar, noting that the
appellant had failed to file written arguments. The trial Judge held that the
admission in paragraph 10 of the plaint is that the last payment was made
on 20 June 2013 by the appellant and since the suit was instituted on
April 2017, three years nine months and ten days thereafter, it is barred by
limitation.
8. In appeal, the High Court has also held that since the last payment was
made on 24 October 2013 in the amount of Rs 3 lakhs, the suit which was
instituted on 31 March 2017 was beyond three years of the last repayment.
While dealing with the averment in paragraph 5 of the plaint, which has
been extracted above, the High Court has held that since the appellant is a
company, “it is not expected of a company to have oral mutual
understandings with its customers”. Noting that that there is no written
agreement to the effect that the loan would be repayable within one year
from the date of payment of the last installment, the High Court held that it
would be difficult to hold that such a condition formed part of the contract
between the parties. Finally, the Single Judge of the High Court took the
view that accepting the case of the appellant would lead to a wrong
precedent since it would then be open to the plaintiff to take a plea that a
loan given in 2000 was orally agreed to be paid in 2019 and hence a suit
filed in 2020 is within limitation.
9. Two submissions have been urged on behalf of the appellant by Mr Udai
Gupta, learned counsel. Firstly, it has been submitted that the averments in
paragraph 5 of the plaint set up an express plea to the effect that the loan
was repayable within one year from the date of the payment of the last
installment that is, by 9 April 2014. Hence, the suit which was instituted on
31 March 2017 is within limitation. On this limb of the submission, it has
been urged that in any event, this is a matter which has to be tried on the
basis of evidence and could not have been disposed of purely on the basis
of oral arguments. Secondly, it has been submitted that the contention that
there was an open and running current account between the parties having
been set up in the plaint, it has to be decided on the basis of evidence
adduced at the trial.
10. Opposing these submissions, Mr Sanjay Sehgal, learned counsel
appearing on behalf of the respondent submitted that (i) there is admittedly
no written agreement between the parties evidencing the terms of an
alleged loan transaction; (ii) there was no loan transaction at all and the
payments which were made by the appellant to the respondent were on
account of commission towards real estate transactions; (iii) the last
payment having been made on 24 October 2013, the suit which was
instituted on 31 March 2017 is barred by limitation; (iv) Article 1 of the
Limitation Act has no application whatsoever since there was no open,
running and mutual current account envisaging mutual payments and
receipts between the parties; and (v) this is evident from the averments
contained in paragraph 3 of the plaint where the appellant has set up the
plea that it was only the appellant who was making payments to the
respondent.
11. The appellant has specifically set up a plea in paragraph 5 of the plaint
that the loans were to be repaid within one year from the date of the
payment of the last installment. The case of the appellant has to be proved
on the basis of evidence adduced in the suit. Such an issue could not have
been decided purely on the basis of oral arguments urged on behalf of the
contesting parties. The respondent has denied the existence of loan
transactions and has set up the plea that the payments made by the
appellant were on account of commission. There are two conflicting
versions on the nature of the business transactions between the parties,
the appellant alleging that it was a loan, while the respondent alleges that it
was in the nature of a commission for real estate services.
12. The issue as to whether the claim of the appellant is barred by limitation
cannot be isolated from the nature of the transactions between the parties.
In any event, whether the plea of the appellant as set up in paragraph 5 of
the plaint is proved would depend upon evidence adduced at the trial. The
course of action which was followed by the learned trial Judge of directing
the parties to address arguments on the issue of limitation was irregular.
The issue of limitation in the present case would require evidence to be
adduced.
13. Order XIV Rule 2 of the CPC stipulates that when issues of both law and facts arise in the same suit, the Court may dispose the suit by trying the issue of law first. For this purpose, the provision specifies two questions of law, which are (i) jurisdiction of the Court; and (ii) a bar to the suit created by any law for the time being in force. The provision is extracted below:
2. Court to pronounce judgment on all issues.—(1) Notwithstanding that a
case may be disposed of on a preliminary issue, the Court shall, subject to the
provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues
both of law and of fact arise in the same suit, and the Court is of opinion that the
case or any part thereof may be disposed of on an issue of law only, it may try
that issue first if the issue relates to—
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that
purpose may, if it thinks fit, postpone the settlement of the other issues until after
that issue has been determined, and may deal with the suit in accordance with
the decision on that issue.]
14. Before this Court in Nusli Neville Wadia v. Ivory Properties, (2020) 6
SCC 557 the issue was whether the issue of limitation can be determined
as a preliminary issue under Order XIV Rule 2. The three-judge bench of
this court observed that if the issue of limitation is based on an admitted
fact, it can be decided as a preliminary issue under Order XIV Rule(2)(b).
However, if the facts surrounding the issue of limitation are disputed, it
cannot be decided as a preliminary issue. This Court observed as follows:
51. […] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is dependent upon the outcome of admitted facts, it is open to
the court to pronounce the judgment based on admitted facts and the preliminary
question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1),
the court may decide the case on a preliminary issue. It has to pronounce the
judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may
decide the question of law as to jurisdiction of the court or a bar created to the
suit by any law for the time being in force, such as under the Limitation Act.
52. In a case, question of limitation can be decided based on admitted facts, it
can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts
are disputed about limitation, the determination of the question of limitation also
cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other
such issue of law which requires examination of the disputed facts. In case of
dispute as to facts, is necessary to be determined to give a finding on a question
of law. Such question cannot be decided as a preliminary issue. In a case, the
question of jurisdiction also depends upon the proof of facts which are disputed.
It cannot be decided as a preliminary issue if the facts are disputed and the
question of law is dependent upon the outcome of the investigation of facts, such
question of law cannot be decided as a preliminary issue, is settled proposition of
law either before the amendment of CPC and post amendment in the year 1976.
15. Since the determination of the issue of limitation in this case is not a
pure question of law, it cannot be decided as preliminary issue under Order
XIV Rule 2 of the CPC. Hence, we allow the appeal and set aside the
judgment of the trial Judge dated 16 August 2018 and of the Single Judge
of the High Court dated 4 September 2019. The issue of limitation which
has been framed by the learned trial Judge may be decided, along with
other issues at trial. The appeal shall stand allowed in the above terms.
16. Pending applications, if any, stand disposed of.
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