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TMI Blog2018 (10) TMI 2010X X X X Extracts X X X X X X X X Extracts X X X X ..... laint discloses any cause of action is to be decided by looking at the averments contained in the plaint itself and not the defence set up in the written statement. What is to be seen is whether or not the meaningful reading of the plaint discloses cause of action. While considering the application, the strength or weakness of the case of the plaintiff is not to be seen. The Court should look at the plant and documents accompanying the plaint and not the defence of the defendant or the documents relied upon by the defendants. The cause of action is to be culled out on a conjoint reading of all the paragraphs of the plaint - It is not competent for the Court to go into the correctness or otherwise of all the allegations constituting the cause of action, correctness or otherwise of the allegations constituting the cause of action is beyond purview of Order VII Rule 11[a] CPC where the allegations made in the plaint prima facie discloses cause of action, the plaint cannot be rejected. It is clear that in order to consider Order VII Rule 11 CPC, the Court has to look into the averments made in the plaint as a whole and the same can be exercised by the trial Court at any stage of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision of High Courts Act, 2015 [ hereinafter to be referred to as, the Act of 2015 ], the learned Special Judge, Bhavnagar under Order dated 23rd May 2016 made below Exh. 1 in Special Civil Suit No. 15 of 2011, transferred the case papers to the Commercial Court, Rajkot, relying upon provisions of Sections 9[1] and 15[2] of the Act of 2015. Accordingly, the said suit came to be transferred to the Commercial Court at Rajkot, wherein it was re-numbered as Commercial Civil Suit No. 20 of 2016. 5. In an application moved by the defendant for rejection of the plaint under Order VII Rule 11 CPC, the main resistance amongst other things was that the suit being barred by the law of limitation, need not be entertained. 6. The said application Exh. 22 came to be resisted by the plaintiff-Gujarat Maritime Board inter alia on the ground that the amount fallen due towards various charges had been duly acknowledged by the defendant through its communications dated 22nd March 2010; 20th August 2010 and 27th August 2010 seeking further time to pay off the dues, and therefore, in view of the provisions of Section 18 of the Limitation Act, 1963, the suit could not be said to be time barred. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a suit is in respect of statutory charges under the head of LET-LDT, plot development charges, plot rent and other relevant charges prescribed by the Board under the provisions of the Gujarat Maritime Board [Conditions Procedures for Granting Permission for Utilizing Ship Recycling Plots] Regulations, 2006 and therefore, there is no dispute regarding payment of the statutory charges payable by the defendant towards ship-breaking plot held by it. 11. On the aspect of approach of the Court below, counsel for the plaintiff contended that the learned Judge has not properly appreciated the language used in Order VII Rule 11 CPC and thereby wrongly interpreted it. 12. On the aspect of veracity of the claim of the plaintiff-Board, counsel contended that the Court below grossly erred in observing that the agreement arrived at by and between the parties has not been produced, and therefore, veracity of the claim cannot be examined and ascertained. He drew attention of this Court to the fact that when it is a matter of common knowledge that once the charges for various services are statutorily prescribed under the regulations, and by virtue of the said provisions of the regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaint, and therefore, the Court was not in a position to identify the due date in respect of the outstanding to the plaintiff. The trial Court has further observed that computation of the exact amount due from the defendant to the plaintiff cannot be said to be precise an accurate. That, the plaint, documents produced by the plaintiff does not bear any dates, and therefore, the Court below was not in a position to compute the amount claimed by the plaintiff. It was further submitted that the cause of action for filing of the suit by the plaintiff was not apparently pleaded or can be read from the plaint. That, Order VII Rule 11[d] CPC clearly provides that where the cause of action is not borne out from the reading of the plaint, the plaint is required to be rejected. That, the alleged contract between the parties was not produced on record by the plaintiff, however, was bound to produce by filing the suit. That, liability of the defendant cannot be ascertained on such de hors the contract. That, it is nowhere found from the pleadings that in what manner the said amount was calculated and the date from which suit amount was due. That, in absence of any contract between the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s [I] Private Limited, reported in [1978] 1 SCC 170; [d] T. Arivandandam v. T.S. Satyapal Anr., reported in AIR 1977 SC 2421 [1]. [e] Madras Steam Navigation Co. Limited v. Shalimar Works Limited., reported in AIR 1915 Cal. 681; [f] Shyam Sundar Mishra vs. Municipal Chairman, Parlakimedi, reported in AIR 1964 Orissa 111; [g] Union of India v. Bikaner Textiles Ors., reported in AIR 1961 Raj 211; and [h] Gurdit Singh Ors. vs. Munsha Singh Ors., reported in [1977] 1 SCC 791. 17. Before we deal with the contentions of the parties, it would be appropriate, if we refer to the application Exh. 22 submitted by the defendant praying to reject the plaint. It is averred by the defendant in their application that in respect of the suit plot No. 144, dispute was raised by the plaintiff and false allegations were made against the defendants of the alleged outstanding amount. That, in the year 2007, possession of the suit plot was illegally taken away by the plaintiff. It is further averred that legal notice was issued by the plaintiff in the year 2007 for recovery of the amount which was duly replied to by the defendant; as the plaintiff was not legally entitled to reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld commence. Naturally, therefore when the suit was filed on 16.08.2011, it was within the period of limitation. This court does concluded that the present application under Order 7 Rule 11 of the Code cannot be sustained for the suit being allegedly time barred. 19. Now, before dealing with factual scenarios, the spectrum of Order VII Rule 11 CPC in the legal ambit needs to be noted. 20. While allowing the appeal, the Supreme Court in Chhotanben Anr. vs. Kiritbhai Jalkrushanabhai Thakkar Ors. [Supra] in para 15 has observed as under: What is relevant for answering the matter in issue in the context of the application under Order 7 Rule 11(d) CPC, is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order 7 Rule 11(d). Only the averments in the plaint are germane. 21. Thus, the issue regarding the suit being barred by limitation in the facts of the present case is a triable issue and for which the reason the plaint cannot be rejected at the threshold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive', 'essential', 'pivotal', 'indispensable', 'elementary' or 'primary' [Burton's Legal Thesaurus (Third Edn.); P349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party. 24. From the pleadings, it appears to us that the material facts on which the plaintiff's cause of action would arise was duly placed on the record by the plaintiff. The material facts would depend upon the facts of each case and no rule of universal application can be laid. At any point of time, if it is declared by the plaintiff that agreement or any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that 'law' within the meaning of clause (d) of Order 7 rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entity, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to call out a sentence or a passage and to read it out of the contest 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 of words or change of its apparent grammatical sense . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in the plaint. 32. In the case of T. Arivandandam v. T.S. Satyapal Anr. [Supra], the Apex Court held that, ...the trial Courts should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. 33. In the case before Calcutta High Court in the matter between Madras Steam Navigation Company Limited vs. Shalimar Works Limited, Division Bench of this Court, in its decision at para 8, held and observed as under: 8. It may be a question whether a plaint, framed as this is fairly supports a claim based on trespass, more especially as the plaint is defective in an important; particular. It is imperative under Order VII, Rule 1(e), that the plaint should contain, in addition to other particulars, the facts constituting the cause of action and when it arose. There is no specific allegation in the plaint when the cause of action arose; and yet if the plaint is to be treated as permitting an alternative claim on the ground of trespass, there would be a different date according as it was treated as a suit for malicious prosecution or a suit for trespass. 34. In case of Shyam Sundar Mishra v. Munici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Mark 4/10) do not establish a promise to pay the debt. It was merely an offer to pay the dues; subject to regularizing the plot permanently. This was thus, a conditional offer and not an unconditional promise to pay. In terms of this offer, if the plaintiff had accepted the terms only then the same would result into a concluded contract. In any case, the offer for payment was not unconditional and therefore, could not be seen as a promise. As referred to in sub-section (3) of section 25 of the Contract Act when made in writing and signed by the person concerned or his agent on his behalf, would give fresh period of limitation. 39. This, however, by itself would not mean that the suit, in our opinion, was barred by limitation. As noted, this is a mixed question of law and facts. According to plaintiff, the defendant had not paid the dues and had over stayed their occupation of the plot. According to the plaintiff, on account of non-payment of the lease charges, non-payment of renewal charges and not applying for renewal of the lease, the GMB resumed the possession of the plot in question on 27th December 2007, as per Rules and regulations. The claim of the GMB for lease rent th ..... 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