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Judgment
M.L. Mehta, J.—This revision petition u/s 151 CPC is directed against order dated 07.02.2012 to the extent, whereby application under
Order 7 Rule 11 CPC filed by the petitioners, who are the defendants in the suit, was dismissed. The respondent had filed a suit for recovery
based on certain invoices/bills raised on the ground of some constructions done by it for the petitioners. The petitioners filed application under
Order 7 Rule 11 CPC seeking rejection of the plaint on the ground of limitation. The said application came to be dismissed vide the impugned
order. This order is under challenge in the instant petition.
The main ground on which the application under Order 7 Rule 11 CPC was filed, and which is also the contention of learned counsel for the
petitioners, is that as per the bills dated 05.12.2005 and 13.03.2006, the subject matter of the suit, the limitation period of recovery of amount was
7 days and, that being so, the time for filing of the suit would commence on 12.12.2005 and 20.03.2006 respectively. In this way of the matter, the
limitation would expire on 13.12.2008 and 21.03.2009 respectively qua the bills dated 05.12.2005 and 13.03.2006. The present suit having been
filed on 3rd August, 2009, is alleged to be expressly barred by limitation. It is the submission of learned counsel for the petitioners that since the
bills had specified period of payment to be made within seven days, Article 18 of the Limitation Act would not be applicable.
I have heard learned counsel for the petitioner and perused the relevant records, including the impugned order.
A look at the two invoices/bills respectively dated 05.12.2005 and 13.03.2006 would show the existence of a term at their bottom in the
following manner:
Interest will be charged @ 24% on A/c remaining unpaid beyond 7 days from the due date
The interpretation that is sought to be given by learned counsel for the petitioner to the aforesaid term, is apparently erroneous. A plain reading
would make it amply clear that interest was chargeable @ 24% on account remaining unpaid beyond 7 days from the due date. This clause
nowhere limits the period of payment to be 7 days from the date of the bill/invoice. This clause stipulates the period of payment as 7 days from due
date without interest and thereafter with interest @ 24% per annum. Thus, it cannot be said that any time, much less 7 days, had been fixed for
payment of the amount.
Article 18 of the Limitation Act is clearly applicable to the instant case. This reads as under:
From the above Article it is noticed that the period of limitation was 3 years from the date of doing of work and not from the date of billing.
According to the respondent, the work was completed on 08.09.2006, and the balance amount payable had become due only thereafter. It
means, according to the aforesaid clause, the payment would become due with interest @ 24% after 7 days i.e. on 15.09.2006. In this view of the
matter, the limitation would expire on 07.09.2009 or in any case on 14.09.2009. The suit having been filed on 3rd August, 2009, is apparently not
barred by limitation. The next plea that is raised in the instant petition is that since petitioner No. 2 Vikram Malhotra was added as defendant in
December 2009, the suit qua him would be barred by limitation. This plea is extraneous and misconceived. The suit having been filed on 3rd
August, 2009, the amendment made subsequently, would have retrospective effect from the date of filing and not from the date of amendment, so
far as the cause of action is concerned. I do not find any infirmity or illegality in the impugned order. The petition has no merit and the same is
hereby dismissed.