SANJEEV SACHDEVA, J

IA 3304/2013 in CS(OS) 2617/2012

1. Plaintiff has filed this Suit seeking recovery of Rs. 12,20,10,969/-, besides pendente lite and future interest at the rate of 9% per annum.

2. Defendant has filed the subject Application under Order 7 Rule 11 Code of Civil Procedure (hereinafter referred to as the Code) seeking rejection of the plaint inter-alia, contending that the suit is barred by limitation.

3. It is a settled position of law that limitation is a mixed question of law and fact. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 CPC. The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by clause (d) of Order 7 Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. Applying the said principle, the plea raised by the Defendant that the Suit is barred by limitation has to be examined by looking into the averments made in the Plaint alone and the defence raised in the Written Statement cannot at all be looked into.

4. Further, a plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact.

1. Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638

5. The case of the Plaintiff is that in pursuance to a tender notice, it had submitted its bid and paid an EMD of 3.2 Crores on 02.06.1989, which was acknowledged by the Defendant. It is contended that one of the conditions proposed by the Plaintiff was that the land use would be got changed by the Defendant from industrial to commercial/residential. It is also averred that the defendant had agreed to consider conversion of land use and had even agreed to render necessary assistance in obtaining necessary permissions. Subsequently, the plaintiff is contended to have conveyed to the Defendant on 08.09.1989 that it was willing to abide by the condition of the tender submitted by it and to conclude the purchase and have the sale deed executed and pay the balance amount at the time of taking possession of the site after the necessary permissions were obtained by the Defendant. On 15.09.1989 the Chairman and Managing Director of Defendant Company is alleged to have informed the Plaintiff that the said amount has been kept in a separate account as Short Term Deposit and the interest accrued after 05.09.1989 @ 8% interest per year would be credited in the account of the Plaintiff in the event the deal is not materialized.

6. Later by letter dated 29.03.1991, the Defendant is alleged to have informed the Plaintiff that the Government of Maharashtra had published new Development Control Regulations-1991, which, however were stayed by the Bombay High Court on 22.03.1991 and thus the board of directors of the defendant decided to refund back the security deposit to the Plaintiff with interest at 8 % p.a. from 05.09.1989 till the date of payment.

7. It is contended that the defendant failed to refund the EMD of Rs 3.2 Crores along with the interest. Subsequently, the Defendant is alleged to have, on 05.03.1992 conveyed to the Plaintiff that sale deal existed between them and requested the plaintiff to take necessary action to complete the formalities towards the sale of the land to the Plaintiff.

8. Immediately thereafter, reference was made by the defendant to BIFR for the financial year ending 31.03.1992 and after making a enquiry under Section 16 (1) SICA, BIFR declared the Defendant company to be a sick company in the hearing held on 27.05.1993 and thus appointed IDBI, a financial institution as the Operating Agency under Section 17(3) of the SICA to formulate