M. Venugopal, J.

The Appellant/Plaintiff has filed the present Original Side Appeal as against the order dated 21.09.2012 in A.No.2589 of 2012 in C.S.No.14 of 2012 passed by the Learned Single Judge.

2. The Learned Single Judge while passing the common order on 21.09.2012 in C.S.No.14 of 2012 and A.No.2589 of 2012 and A.No.288 of 2012 at paragraph 13 had observed the following:

"... it is a fit case where no trial is contemplated without there being any disclosure of cause of action for trying the suit. Besides, the suit itself is barred by limitation. Under these circumstances, A.No.2589 of 2012 will stand allowed. The plaint in C.S.No.14 of 2012 stands rejected. In view of the rejection of the plaint, the question of issuing direction to furnish security in A.No.228 of 2012 does not arise. Hence, A.No.228 of 2012 stands dismissed ..."

3. Assailing the validity and legality of the order passed in A.No.2589 of 2012 in C.S.No.14 of 2012, the Learned counsel for the Appellant/Plaintiff urges before this Court that the order passed by the Learned Single Judge on 21.09.2012 in A.No.2589 of 2012 in C.S.No.14 of 2012 (Filed under Or.7 R.11(d) of the Civil Procedure Code) suffers from material irregularities and illegalities in the eye of Law.

4. The Learned counsel for the Appellant/Plaintiff contends that the Learned Single Judge ought to have noted the averments contained in the plaint in C.S.No.14 of 2012 which are germane while considering the application for rejection of plaint under Or.7 R.11 of the Civil Procedure Code.

5. Expatiating his contention, the Learned counsel for the Appellant proceeds to take a plea that 'Cause of Action' is a bundle of actions and the same is to be culled out from the averments projected in the plaint. Further, the substance of the plaint ought to be looked into by a Court of Law and not the form. Moreover, on mere technicality, the plaint should not be rejected at the threshold by a Court of Law.

6. The Learned counsel for the Appellant submits that 'Collusion', and 'Fraud' can be found out only during the course of trial of the main case on evidence and therefore, the rejection of the plaint filed by the Appellant/Plaintiff is an improper one. Consequently, the impugned order of the Learned Single Judge bristles with 'perversity' and is liable to be set aside.

7. Yet another contention of the Appellant/Plaintiff is that the Learned Single Judge had failed to appreciate whether the averments made in the plaint in C.S.No.14 of 2012 discloses a plausible cause of action for filing the suit. Furthermore, whether the necessary parties or proper parties is an issue to be determined in the main suit on the basis of evidence to be adduced by both the parties to the suit at the time of trial of the case and the same cannot be decided in an application filed under Or.7 R.11 (a) & (d) of the Civil Procedure Code.

8. On behalf of the Appellant, it is represented before this Court that a Court of Law is not excepted to consider the probable defence that may be set up by a defendant in his written statement, while dealing with an application for rejection of plaint, especially, under Or.7 R.11 (d) of the Civil Procedure Code.

9. The Learned counsel for the Appellant/Plaintiff cites the decision of the Hon'ble Supreme Court Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others reported in 2006 (5) SCC at page 638 and at Special Page 639, whereby and where under it is observed and held as follows:

"In view of Rule 6 of the Companies (Court) Rules, the provisions of the Code of Civil Procedure will be applicable in the proceedings under the Companies Act, 1956.

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. Therefore unless it becomes apparent from the reading of the company petition that the same