The court held that the issue of limitation is a mixed question of fact and law, requiring evidence, and cannot be dismissed summarily.

ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)

On the last date of the hearing, we have heard learned counsel for the appellant. Today, Sri. S.V.Lakshmi Narayana appears for the respondent and has been heard.

2. The challenge in this appeal is to an order dated 30.11.2021 passed by the LXXXV Additional City Civil and Sessions Judge at Bengaluru (Commercial Court-CCH 86) in Com. O.S.No.254/2020, whereby, the learned Judge in exercise of suo motu power has dismissed the suit on the ground of limitation.

3. The facts to be noted for the purpose of this order are that, the appellant herein had initially filed a summary Suit under Order 37 Rules 1 and 2 of the Code of Civil Procedure Code for seeking a decree against the respondent herein for a sum of Rs.5,80,750/- along with the future interest at 24% p.a.

4. Suffice to state on, the respondent, filing an application under Order 37 Rule 3(v) of CPC seeking grant of leave to defend the above suit, the same was allowed and the respondent was directed to file a written statement to defend the case.

5. The case of the appellant through its proprietor was that he is carrying the business of selling cement, ready mix concrete, and their allied products to its customers. The respondent is a Construction Company. The respondent had requested the appellant for supply of ready mix concrete and as per his request, the appellant/plaintiff supplied the ready mix concrete from time to time under various invoices ever since 2016.

6. The total amount due and payable by the respondent to the appellant was Rs.13,80,750/- and out of which, only an amount of Rs.8,10,000/- was paid to the appellant and hence, claim for the balance amount was made in the suit.

7. As per the plaint, the stand with regard to the payments made by the respondent have been reflected in paragraph No.6. Paragraph No.8 of the plaint also state that, the last payment was made by the respondent, in the sum of Rs.1,25,000/- on 30.01.2017.

8. A reference is also made to the fact that the proceeding initiated by the appellant under Section 12A of the Commercial Courts Act , 2015 for pre-institution mediation and settlement, was a non-starter vide order dated 18.08.2020.

9. The learned Judge insofar as limitation is concerned, was of the following view:

8.Point No.1:- As I have already stated, plaintiff has filed this suit as a summary suit seeking for judgment and decree against defendant and canvassed that plaintiff's claim is based on invoices and the ledger account maintained by plaintiff in the course of its business and thereby plaintiff is entitled for judgment and decree based on the documents. However the defendant's application seeking leave to defend the matter came to be allowed and thereafter defendant resisted this suit by filing written statement specifically contending that suit is barred by limitation. To avoid valuable time of the court and also to nipped the vexatious suit at the bud, this court posted the matter to hear respective counsels and rejection of plaint on the ground of limitation. The learned counsel for plaintiff vehemently contended that as per the orders of Hon'ble Supreme Court reported in Jiwanlal Achariya vs. Rameshwarlal Agarwalla reported in AIR 1967 SC 1118 contended that Hon'ble Supreme Court while considering the claim for payment held that for purchase of limitation limitation under Section 20 of the Indian Limitation Act 1908, the cheque is the payment and the date of payment is the date of delivery of the cheque and also held that the cheque also served as an acknowledgment of this payment. It is the contention of plaintiff that defendant made the last payment by way of cheque bearing No. 098770 on 30.1.2017 and hence suit filed by the plaintiff on 28.1.2020 calling