JUDGMENT :

Goutam Bhaduri, J.

1. Heard.

2. This appeal is against the judgment and decree passed by the Court of 2nd Additional District Judge, Raigarh on 19.3.2019 in Civil Suit B No.53/2016 whereby a decree of Rs.11,21,000/- has been passed in favour of the plaintiff.

3. The parties to the appeal i.e., the appellant and the respondent No.1 entered into an agreement on 15.1.2009 for purchase of certain land ad-measuring 39870 square feet situated at village Jagatpur, Patwari Halka No.14, Tahsil and District Raigarh for an amount of Rs. 4,21,00,000/-. Out of such sale consideration, an amount of Rs.11,21,000/- was paid as earnest money by the respondent No.1. When the sale could not materialize, the respondent No.1/plaintiff served a notice on 20.6.2009 and subsequent notice on 10.8.2009 which was replied by the defendant / appellants herein, but, eventually the agreement could not materialize and sometime in the year 2011, Ramdas Agrawal (respondent herein) filed a suit for declaration and injunction against Gagan Rathi and Pawan Agrawal (appellants). Subsequently, the said suit bearing Civil Suit No.44A / 2011 was returned by the learned trial Court invoking the provision under Order VII Rule 10(2) of the Civil Procedure Code (for short “the CPC”) to file it before the appropriate Court under Order VII Rule 10 of the CPC for want of Court fee. The said suit was never filed, however, subsequently, a second civil suit was filed on 13.1.2012 bearing Civil Suit No. 27A/2012. The said suit was filed for specific performance of the contract dated 15.1.2009 and for return of the earnest money.

4. The Civil Suit No. 27A/2012 was withdrawn on 1.10.2016 at the request of the plaintiff on an application filed under Order XXIII Rule 1 (3) (b) of the CPC. The learned District Judge granted permission of withdrawal with a liberty to file a fresh suit in respect of the subject property. Thereafter, the present suit was filed on 3.10.2016 bearing Civil Suit B No. 53/2016 wherein the plaintiff claimed for return of the earnest money and amount of damages to the tune of Rs.10,00,000/- (10 Lakhs).

5. The Additional District Judge, Raigarh framed certain issues. The pertinent issues are No. 4 and 6. Issue No.4 was with respect to the limitation and Issue No.6 was with respect to the fact that whether the suit was barred under Order II Rule 2 of the CPC. The learned Court held it in favour of the respondent No.1/plaintiff and decreed the suit for return of the earnest money. Hence, this appeal.

6. Learned counsel for the appellants would submit that prior to the suit in which the decree is under challenge, initially, the plaintiff had filed a suit for permanent injunction which was returned and the suit for permanent injunction (Exhibit D1) was against Pawan Agrawal and Gagan Rathi in their personal capacity. He would further submit that the said suit having been returned invoking the power under Order VII Rule 10 (2) of the CPC, subsequent civil suit was filed against Shri Krishna Builders and Developers, Raigarh through its partners Gagan Rathi and Pawan Agrawal which is Exhibit D2. The said civil suit was withdrawn on an application filed by the plaintiff under Order XXIII Rule 1 (3) (b) of the CPC. It is submitted that the said withdrawal of suit and liberty granted was affirmed by the High Court vide its judgment dated 20.9.2017 passed in WP227 No.790 of 2016. He would submit that subsequent Civil Suit B No.53 of 2016 (the instant one) was again filed by plaintiff not against the partnership firm but against the partners Gagan Rathi and Pawan Agrawal. He would submit that since the subsequent suit was filed on 03.10.2016 which was based on an agreement dated 15.1.2009 and refusal of subsequent civil suit, which was barred by time under Order XXIII as Order XXIII Rule 2 of the CPC would not save the limitation. Further reference is made to Section 14 of the Limitation Act, 1963 to submit that benefit of Section 14 to exclude the limitation can only