SANGEET LODHA,J. - (1.) This revision petition is directed against order dated 1.4.16 of the Additional District Judge No.4, Udaipur, whereby an application preferred by the petitioner-defendant under Order 7, Rule 11 CPC, seeking rejection of the plaint, has been dismissed.
(2.) The respondent-plaintiff filed a suit for recovery of Rs.12,00,000/- against the petitioner-defendant with the averments that the plaintiff had given an order to the defendant for supply of two Crushers of the sizes 42"x30"and 36"x9". On the defendant demanding the advance, the plaintiff paid a sum of Rs.3,00,000/- by cheque no. 158201 and Rs.4,50,000/- by cheque no.158202. Thereafter, on the plaintiff approaching the defendant on 1.6.11, the defendant stated that the fabrication of the Crushers shall take some time and demanded some more advance payment. Accordingly, the plaintiff paid a sum of Rs.9,00,000/- to the defendant and thus, according to the plaintiff, in total a sum of Rs.16,50,000/- was paid in advance. However, the cheque no.158202 was not presented by the defendant before the bank for encashment.
(3.) On 13.6.11, when the plaintiff sent his employee to find out the progress in the fabrication of the machines, the defendant apprised that it will take 7-10 days more. Finally, on 21.6.11, the defendant apprised the plaintiff that the machines shall be supplied latest by 26.6.11 at 12 p.m. and if the same are not supplied by the time specified, the order may be treated to be cancelled. The plaintiff claimed that the machines having not been supplied by the respondent, he is entitled for refund of the money paid in advance a sum of Rs.12,00,000/-. As per the averments made by the plaintiff, the cause of action accrued on the cancellation of the order on 26.6.11 and thereafter, on 11.7.11 when the defendant served the plaintiff with the notice through his counsel refusing to refund the amount.;