The main legal point established in the judgment is the application of the provisions of Article 1 and Article 14 of the Limitation Act to determine the limitation period for filing the suit.

JUDGMENT :

Dr. A.K.Rath, J

This petition challenges the order 26.12.2013 passed by the learned Civil Judge (Senior Division), Sambalpur in C.S No.118 of 2010 whereby and whereunder learned trial court rejected the application of the defendants under Order 7 Rule 11(d) CPC to reject the plaint.

2. Opposite party as plaintiff instituted C.S. No.118 of 2010 in the court of the learned Civil Judge (Senior Division), Sambalpur for recovery of Rs.4,49,823/-with pendente lite and future interest at the rate of 16.5% per annum. It is pleaded that the plaintiff is a company incorporated under the Companies Act. The plaintiff carries on business of distributing and marketing petroleum products. Defendant no.1 is a partnership firm represented by the partners defendant nos.2 and 3. A dealership agreement was executed by the plaintiff and the defendants on 27.11.2001. Defendants carried on business of sale of motor spirit, motor oil, greases and other motor accessories. The dealership was terminated on 28.11.2007. During subsistence of the dealership, the plaintiff-corporation and the defendants maintained a running account of transactions. Upon request of the defendants, the goods were supplied to them by the plaintiff as per the invoices. The last transaction was made on 31.7.2007. Since all persuasions made by the plaintiff ended in fiasco, notice was sent to the defendants on 11.11.2010 demanding payment of Rs.2,90,639.08 ps. Thereafter, the suit has been instituted with pendente lite and future interest at the rate of 16.5% per annum.

3. Defendants filed an application under Order 7 Rule 11 CPC for rejection of plaint stating therein that the suit is barred by limitation. It is stated that the last supply was made on 31.7.2007. The same is the starting point of limitation. Thus the suit is barred by limitation. The plaintiff filed an objection to the same. It is stated that the allegations relating to disputed question of facts can only be decided in the suit. The plaint cannot be rejected upon the plea taken by the defendants in the written statement. Learned trial court assigned the following reasons and rejected the application.

“The plaint reveals that the cause of action for the suit first arose on 28.11.2007 when the dealership of the defendants was terminated and thereafter on different dates of demand for the outstanding amount made by the plaintiff Corporation through its Officers on the defendants from time to time and finally on 11.11.2010 when lawyer’s notice was sent to the defendants to pay entire outstanding amount along with interest. In the present suit whether the plaintiff filed the suit beyond the period of limitation is a mixed question of law and fact which should be decided in the suit after hearing. Further whether the cause of action arose on 31.7.2007 or on 11.11.2010 when lawyer’s notice was sent to the defendants to pay entire outstanding amount along with interest will be decided after giving evidence by both parties. So at this stage the petition under Order 7 Rule 11(d) read with Sec.151 CPC premature and deserves no merit and hence rejected.”

4. Mr. Ghosh, learned counsel for the petitioners, submitted that the last transaction was made on 31.7.2007. The same is the starting point of limitation. The suit was instituted on 25.11.2010. The limitation runs from the last date of supply of goods. The period of limitation for filing of the suit is three years under Article 14 of the Limitation Act. The suit is grossly barred by limitation and as such, the plaint is liable to be rejected. He relied on the decision of the apex Court in the case of Fatejhi & Company & another v. L.M. Nagpal & others, 2015 (II) OLR (SC) 128.

5. Per contra, Mr. Pattnaik, learned counsel for the opposite party, submitted that the limitation is a mixed question of law and fact. The instant suit is governed under Article 1 of the Limitation Act. The suit is filed within the stipulated time. Thus learned trial court has rightly rejected the