IMPORTANT POINT
Rejection of plaint – Simple Recovery Suit cannot be termed as Commercial Suit.

JUDGMENT

Krishna Rao, J.—The defendant has filed the present application being G.A. No. 1 of 2024 in C.S. No.181 of 2023 praying for rejection of plaint filed by the plaintiff on the ground that (i) the suit filed by the plaintiff is commercial in nature and (ii) the suit filed by the plaintiff is barred by limitation.

2. Mr. Varun Kothari, Learned Advocate representing the defendant submits that the case made out by the plaintiff in the suit for lent and advanced money to the defendant for the purpose of business of the defendant and thus the transaction between the plaintiff and the defendant is commercial in nature.

3. Mr. Kothari submits that in paragraph 3 of the plaint, the plaintiff has categorically mentioned that for the purpose of the business, the defendant requested the plaintiff for a short term loan of Rs.5,50,000/- and agreed to repay the said loan within 121 days with compound interest at the rate of 12% per annum.

4. Mr. Kothari submits that in paragraphs 1 and 2 of the plaint, make it clear that the plaintiff and the defendant had business relationship with each other and accordingly loan was given for the purpose of business of the defendant.

5. Mr. Kothari submits that as per the case of the plaintiff, the plaintiff has presented the cheque for encashment on 1st April, 2019 and on the same day, the cheque was dishonoured but the plaintiff has issued a notice for recovery of the said amount on 8th June, 2022 i.e. after the lapse of more than three years.

6. Mr. Kothari submits that the period of limitation for filing of the present suit expired on 27th March, 2022 and the balance period of 90 days of limitation was available to the plaintiff, in terms of the order passed by the Hon’ble Supreme Court expired on 31st May, 2022 but the suit is filed on 25th August, 2023.

7. Mr. Kothari submits that the period of limitation for the plaintiff for recovery of amount had expired on 31st May, 2022 but the plaintiff has issued notice for recovery of amount after the period of limitation i.e. on 2nd July, 2022. He submits that the claim made by the plaintiff is barred by limitation.

8. Mr. Kothari relied upon the judgment reported in the case of Kotak Mahindra Bank Limited Vs. Kew Precision Parts Private Limited and Others reported in (2022) 9 SCC 364 and submitted that the distinction between acknowledgment under Section 18 of the Limitation Act, 1963 and a promise within the meaning of Section 25 of the Contract Act. Both promise and acknowledgement in writing, signed by a party or its agent authorised in that behalf, have the effect of creating a fresh starting of limitation. The difference is that an acknowledgement under Section 18 of the Limitation Act has to be made within the period of limitation and need not be accompanied by any promise to pay. He submits that the plaintiff by relying upon the letter dated 2nd July, 2022 stated that the jural relationship between the parties had admitted but the said letter is issued even after the period of limitation.

9. Mr. Rajarshi Dutta, Learned Advocate representing the plaintiff submits that the plaintiff has given loan to the defendant on the basis of friendly relationship and there is no written agreement or mercantile documents were executed between the parties. He submits that the plaintiff is not engaged in the business of money lending. He submits that the dispute between the parties to the suit not covered under Section 2(1)(c) of the Commercial Courts Act, 2015.

10. Mr. Dutta in support of his submissions relied upon the following judgments:—

i. Ladymoon Towers Pvt. Ltd. vs. Mahendra Investment Advisors Pvt. Ltd. reported in 2021 SCC OnLine Cal 4240.

ii. Kailash Devi Khanna and Ors. Vs. DD Global Capital Ltd. and Ors. reported in 2019 SCC OnLine Del 9954.

iii. R. Kumar and Another Vs. T.A.S. Jawahar Ayya and Others reported in 2020 SCC OnLine Mad 28051.

11. Mr. Dutta submits that the defendant paid interest of the principal borrowed amount of Rs. 10,00,0