The accrual of the right to sue and the application of limitation periods under the Limitation Act are determined based on the facts and contractual provisions governing the payments.

KAILASH GAMBHIR, J. I.A. No. 15427/2010(O. 7 Rule 11 of CPC)

1. By this application moved under Order 7 Rule 11 r/w Section 151 of CPC, the defendant seeks rejection of the plaint on the ground that the present suit filed by the plaintiff is barred by limitation under Order 7 Rule 11 (d) of the Code of Civil Procedure.

2. Before I proceed to decide the present application, it would be necessary to give a brief background of the facts of the present case. The plaintiff is a private limited company which is engaged in the business of interior decoration, furnishing and renovation work etc. and was given the contract by the defendant to carry out the renovation and interior works in their new and old buildings. On 16.7.98, the contract for the value of Rs.1,77,97,347.90 was awarded by the defendant in favour of the plaintiff for the new building and on 1.8.98 the contract for the value of Rs.59,73,075.90 was awarded for the old building. The plaintiff executed both the said awarded contracts including extra/additional jobs arising during the pendency of the said contract and finally the new building was completed and occupied on 13.12.99 with the recording of its virtual completion on 12.4.2000, while the old building was completed and occupied on 13.12.99 with the virtual completion on 22.4.2000. The plaintiff had submitted its final bill for the new building on 11.11.99 for a sum of Rs.2,57,81563.59, and a final bill dated 29.11.99 for Rs.93,98,400.51 was submitted by the plaintiff with regard to the old building. Both the said bills were submitted by the plaintiff with the defendant and the same were later forwarded by the defendant to the Architect for issuing final certificate vide their letters dated 12.3.2000 and 22.3.2000 respectively. As per the plaintiff, the Architect while issuing the final bill certificates for the new and the old buildings made certain deductions in the said final bills by changing their measurements as recorded earlier and also by reducing certain rates and consequently with the deductions as carried out by the Architect the bill amount for the new building was reduced to Rs.2,41,34,961.82 and for the old building the same was reduced to Rs.89,98,400.51/-. The plaintiff sent various reminders to the defendant for carrying out necessary corrections in their final bills but the defendant did not give any response and finally vide their letter dated 25.9.2001, the defendant refused to make payment of the balance outstanding dues of the plaintiff. The plaintiff in its reply dated 26/29.9.2001 seriously refuted the allegations leveled by the defendant in their letter dated 25.9.2001. Standing by the amount raised in the final bills and after giving adjustment of the payment received by the plaintiff against the said bills an amount of Rs.38,16,270.10 was still left outstanding in respect of the both the buildings as per the case set up by the plaintiff. The plaintiff has also claimed compound interest on the said outstanding amount besides claiming the amount of the earnest money deposited by the plaintiff along with tender forms. Combining the total claims, the plaintiff has filed the present suit for recovery of Rs.72,30,450.66 together with the claim of pendent lite and future interest @ 16.875% from the date of the filing of the suit till realization.

3. In the backdrop of aforesaid facts, rejection of the plaint is sought by the defendant through the present application, primarily on the ground that as per the own case of the plaintiff, the final bill was dated 11.11.99 and the final certification of the bills by the Architect was issued on 23.6.2000 and thus filing of the suit by the plaintiff in May 2004 is clearly beyond the period of limitation. It is also the case of the defendant that the suit filed by the plaintiff is barred by limitation is evident on a bare perusal of the averments made in the plaint and as per the defendant no evidence is required to be adduced to prove this fact