FORTUNE BUILDERS PVT. LTD. Vs. BLUE STAR LTD

JUDGEMENT

(1.) The plaintiff/petitioner assails the order of 19/11/2018 passed by the Trial Judge rejecting an application made by it purporting to be under Order VII Rule 11 of the Civil Procedure Code, 1908 [Code]. The application itself had come to be made with respect to a counter claim which was instituted by the defendant/respondent on 15/3/2018. The suit instituted by the plaintiff was essentially a money claim seeking the issuance of a decree for a sum of Rs.36,07,194.00 together with interest @ 24% per annum being rendered in favour of the petitioner. In terms of the counter claim which was preferred, the defendant/respondent sought a decree against the petitioner for a sum of Rs.47,99,228.00 together with interest @ 20% per annum. The Trial Judge while dealing with the rival contentions and the prayer for rejection of the plaint noticed that the principal contention of the petitioner was that the counter claim was barred in terms of the provisions made in the Limitation Act 1963 [Act]. The case set forth by the petitioner in support of the invocation of Order VII Rule 11 of the Code was premised on the fact that the final invoice was issued and raised by the respondent on 17/4/2014. It was asserted that the counter claim which came to be instituted on 15/3/2018 would thus clearly be barred under the provisions of the Act when viewed in light of the prescriptions contained in Articles 14 and 18 of the Schedule thereto. Dealing with the question of limitation, the Trial Judge in terms of the impugned order made the following pertinent observations: -

(2.) In order to evaluate the merits of the rival contentions, it would be apposite to advert to the relevant averments as carried in the counter claim. The relevant parts of the counter claim are extracted hereinbelow: -

(3.) Mr. Sindhwani, learned Senior Counsel appearing for the revisionist contended that a bare perusal of the averments made in the counter claim would establish that it was the respondent 's own case that payment was to be released on a pro rata basis and against individual bills that were raised as per the terms of the Letter of Intent [LOI]. Learned Senior Counsel further contended that the respondent itself referred to the bill of 17/4/2014 as the "final invoice ". Viewed in that backdrop he would contend that the plaint on the face of it was clearly barred by limitation and was thus liable to be rejected.