The right to sue accrues when the cause of action arises, and there must be an infringement or a clear threat to infringe the right asserted in the suit.

JUDGEMENT :

1 Heard.

2. Rule. Rule made returnable forthwith by consent of the parties.

3. The Defendants are challenging the order passed by the Trial Court rejecting the application under Order 7 Rule 11 to dismiss the suit of respondents No.1 and 2 on the ground of limitation under Order 7 Rule 11(d) of the Code of Civil Procedure.

4. The facts giving rise to the present application are as under :

Non-applicant No.1 filed Special Civil Suit No.1368/2010 for recovery of Rs.88,69,336/- along with interest. The relevant facts for adjudication of the issue involved in the present application, are as under :

5. According to averments in the plaint, as per the oral agreement, the Defendants were to pay profit from the sale of properties to Plaintiff No. 2. Defendant No. 1 had allegedly purchased said properties out of the Plaintiffs' funds. In January 2007, Plaintiffs got knowledge about sale deeds dated 15.04.2006 and 20.07.2006. On executing the aforesaid sale deed, Defendant No.1 was required to pay an amount claimed in the suit. Therefore, according to the applicants, in January 2007, the Plaintiffs had knowledge of sale deeds. Plaintiffs filed suit in November 2010, i.e. after three years.

6. The applicants, therefore, applied to Order 7 Rule 11(d) of the Code of Civil Procedure before the Trial Court, alleging that the suit is barred by law of limitation from the averments of plaints. Non-applicant Nos.1 and 2 contested the said application by filing their reply.

7. The learned Trial Court, by impugned order dated 12.07.2017, rejected the application holding that issue of limitation in the facts of the case is a mixed question of law and facts; it would require evidence to be lead. The applicants have, therefore, challenged the order by the present application.

8. Mr. Bhangde, learned Advocate for the applicants, submitted that, from the averments in the plaint itself, the suit was barred by limitation as the documents are referred to in the plaint, and the documents in the form of sale deed show that the non-applicant No.1 had knowledge about sale deeds on 12.04.2007 and 21.03.2007. Therefore, the suit filed on 22.11.2010 is ex facie barred by limitation. According to him, execution of the sale deed without Plaintiff's knowledge constitutes a breach giving rise to the cause of action; therefore, the suit is barred by limitation. He placed reliance upon the judgment of the Hon'ble Apex Court in the case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives and Ors. reported in (2020)7 SCC 366. According to Mr. Bhangde, learned Advocate for the applicants, the suit would be governed by Article 51 of the Limitation Act, 1963. Therefore, the limitation will start from the date of knowledge of the sale deed.

9. Mr. Khapre, learned Senior Advocate for the non-applicants, submitted that Article 113 of the Limitation Act, 1963 will govern the rights of the parties. The right to sue accrued in favour of Plaintiffs only on refusal on the part of Defendants to pay the amount as agreed. According to him, the cause of action to file the suit accrued in favour of the Plaintiffs on 21.11.2007, when the Plaintiffs issued a notice demanding the amount of claim. Therefore, the suit is within limitation. He placed reliance upon the judgment of the Hon'ble Apex Court in the case of Shakti Bhog Food Industries Ltd. Vs. Central Bank of India and Anr. reported in (2020) 17 SCC 260.

10. I have carefully considered the submissions made on behalf of both sides.

11. The suit is filed for recovery of the amount. According to the Defendants, Article 51 of the Limitation Act, 1963 would be applicable. Per contra, according to the Plaintiffs, Article 113 would be applicable. Therefore, it is necessary at the outset to adjudicate which Article applies to the facts of the present case. For the adjudication of the said issue, it is necessary to set out Articles 51 and 113 of the Limitation Act, 1963, which read as under :

“Article 51 –