JUDGEMENT
SWATANTER KUMAR, J. -
(1.)The plaintiff filed a suit for recovery of Rs.3,54,110.90/- against the defendants. This suit was filed on the premise that the work allotted by the DDA for construction of site office Phase-II in terms of letter dated 10.1.1994 and agreement dated 17.1.94 had not been executed and completed by the defendants. According to the plaintiff, the defendants were required to complete the work by 19.8.94. The actual cost of work completed by the defendants till December, 1996 was Rs. 8,15,078/- and that was about 47% of the tender cost. The defendants in the suit slowed down the process of work on the ground that the final bill was not paid. The plaintiff issued a show cause notice to them but the defendants did not reply and having taken the measurement and rescinded the contract on 22.1.99, the present suit was filed for recovery of the damages suffered by the plaintiff on 10.4.02.
(2.)This suit was contested by the defendants on merits who also took up the objection of limitation. In fact, the defendants filed an application under Order 7 Rule 11 of the CPC stating that the suit was barred by time and as such, the plaint was liable to be rejected and the suit dismissed being barred by law. This application in turn was contested by the plaintiff. According to the plaintiff, the suit had been filed within time as it had rescinded the contract on 22.1.99 and the measurements were taken subsequently, therefore, the suit was within time.
(3.)The learned trial court while allowing the application of the defendants dismissed the suit upon recording the following findings:-
"Item 55 of the Schedule appended to the Limitation Act, 1963, provides periods of limitation for compensation for the breach of any contract, express or implied as three years when the contract was broken or where there were successive breaches when the breach in respect of which the suit was instituted occurs or where the breach is continuing when it ceases."
"It is not in dispute that period of limitation for the breach of contract as claimed in the present suit is three years. It is also not in dispute that contract was rescinded on 22.1.1999."
"In a case Saleem Bhai and others vs. State of Maharashtra and others, AIR 2003 S.C.759, it was held by the Supreme Court that :- A perusal of O.VII R.11. C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under O.VII R.11.C.P.C. at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Cls. (a) and (d) of R..11 of O.VII. C.P.C., the averments in the plaint are germane; the pleas taken by defendants in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under O.7 R.11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court."
"It was argued on behalf of the counsel for the plaintiff that suit was filed within the period of limitation. He argued that period of limitation commenced from the date when the bill of the defendants was finalised on 31.8.2001. I am not convinced with this argument of the ld. Counsel for the plaintiff. Section 75 of the Indian Contract Act provides a right to claim compensation to that party who rightfully rescinded the contract. But item 5 of the schedule appended to the Limitation Act provides the period of limitation as only three years from the date of breach of contract. Admittedly, the date of rescinding of the contract is 22.1.1999. As the suit was filed on 10.4.2002 so it stands established on record that it was filed after a period of three years and it is hit by the provisions of Order VII Rule 11(d) of the Code of Civil Procedure."
"Consequent upon the above reasons and discussions, application of defendants is allowed and suit of the plaintiff is rejected as it is barred by the provisions of Order VII Rule 11(d) of the Code of Civil Procedure. Parties are left to bear their own cost. File be consigned to Record Room."
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