The issue of limitation is a mixed question of fact and law and cannot be determined without trial; factual circumstances must be examined to ascertain whether the suit is barred by limitation.

ORDER

I.A. 9206/2019

1. This is an application filed by the defendant No.1 for rejecting the suit under Order VII Rule 11 of CPC primarily on the ground that the suit is barred by limitation.

2. The relevant averments in the application are that on July 11, 2012, the work for construction of pavement including GSBC, WBM and Cement concrete base and allied works for handling the yard at Multimodel Logistic Park Khatuwas, Rajasthan was awarded by the defendant No.1 to the plaintiff. The actual date of completion of the work was March 14, 2013. It is the conceded case of the parties that the completion of the work was extended till December 13, 2013.

3. It is also the conceded case of the parties that the work was actually completed on February 15, 2014. The final bill was prepared in July 2014 and was paid on April 24, 2015.

4. It is the submission of Mr. Vivek Singh, learned counsel for the applicant / defendant No.1, that it is only after no-claim certificate, given on February 19, 2015, the final bill was paid to the plaintiff.

5. Mr. Singh states that the period of three years for the plaintiff to file a suit has started running from February 19, 2015 and expired on February 19, 2018. He also states that a similar certificate was given on May 5, 2015 and the limitation can be said to have started running from May 5, 2015 and the suit having been filed in April / September / December, 2018, shall be barred by time and the suit is liable to be dismissed on the ground of limitation without resorting to the process of trial etc.

6. These submissions are contested by Mr. Raman Kapoor, learned Senior Counsel appearing for the plaintiff by drawing my attention to page 39 of the plaint to state that on May 30, 2015, the plaintiff had withdrawn no claim certificate dated May 5, 2018. So, the plaintiff is contesting the payment made on April 29, 2015. Further, the plaintiff had notified the defendant No.1 on May 30, 2015, about its claim of over Rs.2 Crore (illegally recovered by the defendant No.1) and claim towards other losses and damages arising out of the prolongation of work.

7. He also states, on October 12, 2015, the plaintiff once again sought a settlement of its claims. Vide letter dated September 27, 2016, the defendant No.2, took a detailed note of the hindrances at the site and duly noted in the hindrance register. Thereafter, the defendant No.2 justified a delay of 334 days for granting formal extension of time on merit and specifically stated that the LD is justified only for 3 days. In other words, the delay is not attributable to the plaintiff.

8. He also states that, even on October 04, 2016 and February 18, 2017, the plaintiff had sought settlement of the claims. It is vide letter dated March 06, 2017, the defendant No.1 informed the plaintiff that the Competent Authority had approved to constitute a committee of three Officers to examine its claims for amicable settlement and reconciliation and the plaintiff shall be informed about the date of the meeting with the aforesaid Committee.

9. According to him, the plaintiff wrote letters dated June 23, 2017 and July 7, 2017, for settlement of the claims, but no response is forthcoming to the request made by the plaintiff. On November 8, 2017, the plaintiff had invoked the arbitration clause and nominated its Arbitrator and sought appointment of an Arbitrator by the defendant No.1. Vide letter dated December 11, 2017, the defendant No.1 informed the plaintiff that it would not nominate an Arbitrator since the claimed amount was over and above 20% of the contrac