RAKESH GUPTA Vs. KHODAY INDIA LTD

JUDGEMENT

(1.) The plaintiff has filed the present suit under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) for recovery of Rs.1,80,81,800/- with future and pendente lite interest @ 24% per annum from the defendants. Summons for appearance and thereafter summons for judgment were issued to the defendants. An affidavit of one Mr. K.L. Swami working as Director of the defendant no.1 Company seeking leave to defend on behalf of both the defendants, has been filed. Though there is no application for leave to defend but vide order dated 28 th March, 2012 the same was registered as an application for leave to defend. It may however be recorded that neither any document to show that the said Mr. K.L. Swami is the Director of the defendant no.1 Company or is authorized by the defendant no.1 Company to seek leave to defend, has been filed nor any authority from the defendant no.2 Mr. Srihari Khoday in favour of the said Mr. K.L. Swami, has been filed. Notwithstanding there being nothing to show that the leave to defend has been filed on behalf of the defendants, arguments on merits have been heard.

(2.) The counsel for the defendants has sought leave on three grounds.

(3.) The senior counsel for the plaintiff has contended that in the affidavit seeking leave to defend, no plea of limitation has been raised; that a plea of limitation is a mixed question of law and fact and cannot be allowed to be raised for the first time at the time of hearing and without any notice to the opponent and that the defendants ought not to be permitted to urge the said plea.