The petitioner/defendant in Com.O.S.No.109/2022

on the file of the Commercial Court and II Additional

District & Sessions Judge, Mysuru (for short, ‘Trial

Court’) is before this Court questioning the order

dated 23.02.2023 rejecting IA filed under Order VII

Rule 11 (d) of CPC.

2.

Heard the learned counsel Smt.Geetha Devi

M. Papanna for petitioner-Mysuru City Corporation.

Perused the writ petition papers.

3.

The respondent/plaintiff filed suit for recovery

of Rs.41,04,84,455/- along with interest at 12% per

annum from the defendant/petitioner herein. The plaint

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was presented on 23.05.2022. On appearance, the

petitioner/defendant

filed

its

written

statement.

Thereafter, petitioner/defendant filed application under

Order VII Rule 11(d) of CPC on 09.12.2022 praying to

reject the suit as barred by limitation and also for non-

compliance of mandatory provisions of Section 482 of

the Karnataka Municipal Corporations Act, 1976 (for

short, ‘1976 Act’). The affidavit accompanying the

application would indicate that plaintiff sent notice dated

27.03.2015 to the defendant claiming compensation and

the plaintiff ought to have sought for adjudication of the

same within three years i.e., on or before 31.03.2018.

Further, it would also disclose that Section 482 of 1976

Act bars the suit without issuing prior notice of 60 days

along with the plaint of the suit. As the plaintiff has

failed to issue notice in terms of Section 482 of 1976

Act, the suit filed by respondent/plaintiff would not be

maintainable. The respondent/plaintiff opposed the said

4

application by filing objections stating that plaintiff

terminated the contract in terms of notice dated

31.08.2020. The cause of action for filing the suit arose

on 31.08.2020, the date on which contract was

terminated and not on 27.03.2015, as contended by

petitioner/defendant. The respondent/plaintiff in its

objections also stated that as on the date of issuing

notice dated 27.03.2015, the contract was in force and

the notice was issued claiming the pending bills as on

the said date. Further with regard to issuance of notice

under Section 482 of 1976, it is stated that notice dated

31.08.2020 is issued under Section 482 of 1976 Act.

Therefore, it prayed for dismissal of application filed

under Order VII Rule 11(d) of CPC.

4.

The

Trial

Court

under

impugned

order

rejected the application filed under Order VII Rule 11(d)

of CPC holding that the question of limitation would be a

mixed question of fact and law and that notice dated

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31.08.2020 would be the notice under Section 482 of

1976 Act.

5.

Learned counsel for the petitioner/defendant

would submit that the Trial Court committed an error in

rejecting application filed under Order VII Rule 11 (d) of

CPC. When on the face of it, it is shown that from the

date of issuing notice dated 27.03.2015, the suit

instituted in the year 2022 is clearly barred by time, the

trial

Court

committed

an error

in

rejecting

the

application

for

rejection

of

plaint.

When

the

petitioner/defendant

has

pointed

out

that

respondent/plaintiff had issued notice dated 27.03.2015

claiming the petitioner/defendant to settle its accounts,

on failure of petitioner/defendant to settle its claim, the

respondent/plaintiff ought to have filed suit within three

years from the said date. The suit filed after more than

7 years is clearly barred by time. Learned counsel would

submit that the Trial Court ought to have found out

6

whether

the

cause

of

action mentioned by

the

respondent/plaintiff is the real cause of action, on

scanning the material on record. Learned counsel would

further submit that a reading of the entire plaint, it is

clear that suit filed is barred by time. Further, learned

counsel with regard to issuance of notice under Section

482 of 1976 Act would submit that finding of the Trial

Court

that

notice

dated

31.12.2020

substantially

complies Section 482 of 1976 Act is totally erroneous,

since the provision mandates the issuance of notice of

60 days which has not be