United Sprits Limited vs Vijay Mallya & Ors

Debangsu Basak, J

The Court : The application is at the behest of the defendant no.1. The application is under Order VII Rule 11 of the Code of Civil Procedure, 1908.

The defendant no.2 claims that, this Hon’ble Court has no jurisdiction to entertain this suit. Moreover, the claim of the plaintiff is barred by

limitation.

Learned Advocate appearing for the plaintiff draws the attention of the Court to the averments made in the plaint. He submits that, on a meaningful

reading on the averments made in the plaint, it will appear that, the claim of the plaintiff is barred by limitation. He submits that, the loan which is

sought to be recovered in the instant suit was of 2006. Subsequent thereto there was no transaction between the parties.

The claim ex facie, therefore, is barred by limitation. In support of such contention he relies upon [1970] ILR 1 Cal.459 [Bengal Enamel Works

Limited-Versus-Apejay Private Limited).

On the ground of jurisdiction, learned Advocate appearing for the defendant no.2 submits that, the defendant no.2 is outside jurisdiction of this

Hon’ble Court.

The plaintiff is represented.

The suit is for recovery of money lent and advanced. The defendant no.3 is in liquidation. According to the plaintiff, a sum of Rs. 5 (five) crores was

transferred from Shaw Wallace Finance Limited to the third defendant on October 17, 2006. This amount was treated as a loan and was granted

without any requisite approval or documentation. Such amount was never repaid by the third defendant. There was change in management of the

plaintiff. Subsequent to the change of the management on review of the decision taken by the earlier management the plaintiff discovered the

irregularity. The plaintiff, therefore, filed the suit for recovery. According to the plaintiff, the claim is not barred by limitation.

The issue of limitation is a mixed question of fact and law. The Court is required to proceed on a meaningful reading on the averments made in the

plaint while considering an application is under Order VII Rule 11 of the Code of Civil Procedure, 1908. There are averments made in the plaint that,

the claim of the plaintiff is not barred by limitation.

Bengal Enamel Works Limited (supra) is a decision rendered upon evidence being taken in the suit. The ratio laid down therein ought to be considered

after allowing the parties to lead evidence in the suit.

As noted above issue of limitation is mixed question of fact and law. The parties are at liberty to lead evidence to establish that, the claim of the

plaintiff is within limitation or not. Therefore, without affording the parties an opportunity to lead evidence, it would not be appropriate to decide the

issue of limitation on an application under Order VII Rule 11 of the Code of Civil Procedure, 1908.

In the facts of the present case, so far as the point of jurisdiction is concerned, as the cause title of the plaint demonstrates one of the defendants has

one of its offices within the territorial jurisdiction of the Hon’ble Court. Again, without allowing the parties to adduce evidence as to which part of

the cause of action arose within the jurisdiction of this Hon’ble Court, it would be inappropriate to decide the issue of jurisdiction on an application

under Order VII Rule 11 of the Code of Civil Procedure, 1908.

Learned Advocate for the defendant No, 2 submits that, the written statement on behalf of the defendant no. 2 is ready. He seeks suitable extension

of time to file the written statement.

In the facts of the present case, in my view, interest of justice would be subserved by permitting the defendant no.2 to file written statement within

February 21, 2020.

The issues raised by the parties in the application are kept open to be decided at the trial of the suit.

There will be cross-order for discovery within a fortnight from date. Inspection forthwith thereafter.

The plaintiff will prepare the Judge’s Brief of Documents. Old GA No. 32 of 2020 newly numbered as GA No. 3 of 2020 in CS No. 217 of 2017

is disposed of without any order as to costs.