1. This order shall dispose of an application under Order VII Rule 11 CPC filed by defendant No.1 for rejection of the plaint in a suit for recovery of Rs.9,85,04,084/- with pendente lite and future interest @ 18% per annum filed by the plaintiff against the defendants.

2. Briefly stated, the facts of the case relevant for the disposal of this application are that the suit is based on a continuing guarantee dated 19.11.85 given by defendant No.1 to the plaintiff, English translation of which filed along with the plaint is in the following terms:- “19 November, 1985 Dear Mr. Kwakman, I hereby give you a personal, unlimited joint and several surety for all justified claims of KIVO GmbH Julianaweg, 198-202, NL 1131 DL Volendam, which exist now or in the future vis-a-vis Kunstoplast Chemie GmbH or another company or the group in which I participate.”

Two more translations of the same guarantee dated 19.11.85 were filed by the plaintiff during the pendency of the present suit on 30.08.2002 and 27.07.2006 and they read as follows:- “Translation filed on 30.08.2002 I give hereby personal, unrestricted absolute guarantee for all justified demands of the firm Kiro GmbH, Julianaweg, 198-202, NL 1131 DL Volendam, which exist now or in the future vis-a-vis Kunstoplast Chemie GmbH or another company or the group in which I participate.

Translation filed on 27.07.2006

I hereby give my personal, unlimited guarantee as a principal debtor for all justified claims which KIVO GmbH Julianaweg, 198-202, NL 1131 DL Volendam, may have now or in future against Kunstoplast Chemie GmbH or another group company in which I have an interest.”

4 The plaintiff had business dealings with the German company M/s Kunstoplast Chemie GmbH (hereinafter to be referred as the German company). Defendant No.1 is stated to be the then sole Director and Chief Operating Officer of the German company and had furnished alleged personal guarantee dated 19.11.85 (English translation whereof is extracted above) to secure the payment of balance outstanding against the German company or its group of companies at any time.

5 This recovery suit has been filed by the plaintiff not against the German company but only against the guarantor alleging that an amount of NLG 1,19,83,861 was outstanding against the German company in respect of various supplies made during the period from July, 1993 till June, 1994. The details of supplies made to the German company are given in paras 5 to 12 of the plaint. It is stated that an amount of NLG 50,64,477.32 was also payable on account of interest till 23.11.1999 in accordance with Dutch Civil Code as the transaction between the parties was of commercial nature. However, the plaintiff while filing this suit, seems to have omitted to sue the defendants with regard to principal balance amount outstanding against the German company and has filed the present suit only for recovery of NLG 50,64,477.32 converted into Indian currency applying the conversion rate of Rs. 19.45 paise per guilder on the date of filing of this suit and has, therefore, claimed a recovery of Rs.9,85,04,084/- against the defendants.

6 In response to summons of the suit, three written statements have been filed, one by defendant No. 1, second by defendants No. 2 & 3 and third by defendants No. 4 to 11. The defendants, besides disputing their liability on merits, have taken a preliminary objection to the maintainability of the present suit on the ground of limitation.

7 Defendant No. 1 has filed an application under Order VII Rule 11 CPC, being IA No. 12526/2006, for rejection of the plaint in the present suit, as barred by limitation. Reply to this application has been filed on behalf of the plaintiff contending that this suit cannot be dismissed on the ground of limitation. The plaintiff in its reply has prayed for leave to refer and rely upon the averments contained in its plaint and replication to show that the suit is not barred by limitation.

8 I ha