ORCHID ELECTRONICS Vs. VINITEE ELECTRONICS PVT LTD

JUDGEMENT

(1.) This appeal arises out of an order passed by learned Single Judge of this Court whereby IA 8632 of 2005 filed under Order VII Rule 11 read with Section 151 CPC seeking rejection of plaint has been dismissed.

(2.) In the suit filed by the respondent plaintiff, a decree for an amount of Rs.61,41,200/- towards the price of a Sealed Maintenance Free Batteries manufactured by CSB Batteries Company Ltd., Taiwan was claimed. According to the plaintiff, out of the supplies made by the defendant appellant, 1500 Batteries were found to be defective thereby entitling the plaintiff to seek refund of the amount paid towards the price thereof. The company who manufactured the Batteries however agreed to replace 1000 Batteries out of a total of 1500 found to be defective. That assurance was not made good with the result that the plaintiff sought recovery of a sum of Rs.61,41,200/- representing the cost of the Batteries and interest payable on the same.

(3.) In response to the summons issued by the learned Single Judge on the Original Side, the defendant, appellant herein, appeared to move an application under Order VII Rule 11 read with Section 151 CPC for rejection of the plaint on the ground that the same was barred by limitation and that the plaint did not disclose a cause of action against the defendant. That application has been dismissed by the learned Single Judge in terms of the order impugned in this appeal. The Single Judge has held that the plea of limitation raised by the defendant-appellant can be decided only at the trial and that the plaint did disclose a cause of action against the appellant. While saying so, the learned Single Judge also made an observation that the assurance which CSB Battery Company Ltd. had given to the plaintiff-respondent in this appeal for replacement of 1000 Batteries must be deemed to have been given on behalf of the defendant-appellant. Failure on the part of the manufacturer to make good the assurance, therefore, opined the learned Single Judge, entitled the plaintiff to maintain the suit.