The need for specific and unambiguous averments in the plaint to maintain a suit, and the mixed question of fact and law in determining the law of limitation.

JUDGMENT :

CHANDRA DHARI SINGH, J.

I.A. 4395/2022 (u/O-VII R-11 of CPC)

1. The instant application has been filed under Order VII Rule 11 of the Civil Procedure Code, 1908 (hereinafter referred to as “CPC”) on behalf of the applicant/defendant seeking the following reliefs:

“In the circumstance, it is most humbly and respectfully prayed that the present suit of the plaintiff may kindly be dismissed under the provisions of order 7 rule 11 CPC for inter alia being barred by limitation as well as for lack of cause of action.

Any further order or direction as this Hon'ble court may deem fit and proper may kindly also be passed in the facts and circumstances of the case.”

FACTUAL MATRIX

2. The plaintiff has filed the captioned suit for recovery of an amount of Rs. 7,48,14,740/- (Rupees Seven Crores Forty Eight Lakhs Fourteen Thousand Seven Hundred and Forty only).

3. The plaintiff is engaged in the business of development, purchase and selling of real estate and the defendant company incorporated on 8th March, 1978 is engaged in the business of promoting, building, constructing, etc. having its registered office at 131, Ground Floor, World Trade Centre, Babar Road, New Delhi - 110001.

4. The genesis of the dispute between the parties stems from transaction carried out with respect property on the ground floor of the “Tower of Arc”.

SUBMISISONS

(On behalf of the applicant/defendant)

5. Mr. Sanjeev Sindhwani, learned senior counsel appearing on behalf of the applicant/defendant submitted that the captioned suit filed on behalf of the plaintiff must be rejected at the threshold since, the same is hopelessly time barred. Moreover, it is argued that the transaction between the parties dates back to 2014-2015 and the plaintiff/non-applicant has opted to file after an inordinate delay of more than three years, as required under the statute.

6. It is submitted that according to contentions made by the plaintiff, the applicant herein allegedly refused to complete the sale documentation in compliance of the purported oral agreement to sell executed in the year 2015. Thus, cause of action, if any, arose in the year 2015. Therefore, the limitation to institute the captioned suit as provided under the Limitation Act, 1963 (hereinafter “Limitation Act”) expired way back in the year 2018. In light of the said averment, it has been submitted that the captioned suit filed by the plaintiff is time barred and filed in gross abuse of process of law. It is further submitted that in order to circumvent the obstacle created by the Limitation Act, the plaintiff fraudulently asserted that the defendant has shown the money received from the plaintiff as a liability/advance in his Books of Account. However, acknowledgement, as provided under Section 18 of the Limitation Act, for extension of limitation, should be explicit and unambiguous. The learned senior counsel to this effect submitted that there is no record of any such document that demonstrates any admission/acknowledgement of obligation to pay any outstanding amount to the plaintiff, thereby, such false and malicious assertions cannot come to the rescue of the non-applicant/plaintiff.

7. It is submitted that the entire case of the plaintiff rests on the fact that he made payments through banking channels and that there are some amounts appearing in the defendant's Books of Account, as a result, it is alleged that the defendant has admitted liability to the plaintiff in the amount of Rs. 4.22 Crores in its Books of Accounts. Reliance placed upon by the plaintiff on the balance sheets and books of accounts of the defendants for various fiscal years is misplaced and fallacious. Moreover, the said documents do not substantiate the claims made in the plaint.

8. It is submitted on behalf of the applicant/defendant that in view of the established law, the plaintiff bears the burden of proof in establishing his case. Moreover, it is argued that the plaintiff has failed to produce any document that would even slightly estab