The main legal point established in the judgment is the application of the law of limitation as prescribed under the Limitation Act, and the court's reliance on a presumption of similarity between domestic and foreign laws in absence of satisfactory pleadings and evidence on foreign law.

JUDGMENT

IA 20731/2022

1. This application has been filed by the defendant under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as `CPC'), seeking rejection of the Plaint, primarily on the following grounds:

a) In terms of Clause 14.10 of the Sole Distribution Agreement dated 01.07.2017 executed between the parties, the period of limitation for raising any claim under the Agreement is one year from the date when the cause of action arises. The suit having been filed beyond the period prescribed, therefore, is not maintainable;

b) In terms of Clause 15.1 of the Agreement, the parties and the Agreement are governed by the laws of Italy. The plaintiff having failed to aver this fact in the plaint or even state as to what the law in Italy with respect to such contracts is, the suit is not maintainable.

2. The present suit has been filed by the plaintiff under Order XXXVII of the CPC, praying for a decree of recovery of 3,08,203.45 USD, along with interest thereon, from the defendant. The claim is of amount allegedly due from the defendant on three invoices raised by the plaintiff under the Sole Distribution Agreement dated 01.07.2017 executed between the parties.

3. The plaintiff, in the Plaint, avers the cause of action for filing of the Suit as under:

"34. The cause of action in favour of the Plaintiff arose for the first time on 26 June 2018, when the first tranche payment towards invoices No. 16023, 16024 and 16025 dated 28 November 2017 being due and payable was not paid by the Defendant. Further, cause of action in favour of the Plaintiff and against the Defendant arose again on 25 August 2018 when the second tranche payment which was due was not paid by the Defendant. The cause of action in favour of the Plaintiff further arose on 31 December 2018, upon expiry of the Agreement. The cause of action is subsisting as on the date of filing of the suit. 35. Since, in India, the issue of limitation, is treated as part of procedural and not substantive law and the period of limitation for filing a suit for recovery in India is three years from the date of cause of action, the present suit is within limitation."

Submissions on behalf of the learned counsel for the defendant/applicant

4. Mr. Manik Dogra, the learned counsel for the defendant/applicant submits that the agreement being governed by laws of Italy, the period of limitation shall also be governed by the laws of Italy. He submits that the period of limitation for filing of the suit shall not be governed by the Limitation Act, 1963 (in short, `the Limitation Act') but by the Laws of Italy. In support, he places reliance on the judgment of the Supreme Court in Bank of Baroda v. Kotak Mahindra Bank Ltd., (2020) 17 SCC 798.

5. He submits in terms of Clause 14.10 of the Agreement, the period of limitation to file the Suit is restricted to one year from the date of the cause of action.

6. He further submits that as the agreement is governed by the laws of Italy, it was incumbent upon the plaintiff to plead the laws governing the contract in question. He submits that in terms of Section 45 of the Indian Evidence Act, 1872 (in short, `the Indian Evidence Act'), when the Court has to form an opinion, inter alia, upon the point of foreign law, opinions upon that point of persons specially skilled in such foreign law, are relevant facts.

7. He submits that in terms of Section 57 of the Indian Evidence Act, the Court can inter alia take judicial notice of all laws in force in the territory of India and such other laws as are mentioned in the said provisions, however, the laws of Italy are not mentioned therein. He submits that, therefore, judicial notice cannot be taken of the laws of Italy, and the plaintiff was required to plead the same in the plaint. In absence of requisite pleadings in this regard, the present suit is not maintainable. In support, he places reliance on the judgment of the Supreme Court in Hari Shanker Jain v. Sonia Gandhi, (2