RAJAM EXTRACTIONS LIMITED PENUBAKA Vs. NAGABOYINA PAKEERU

JUDGEMENT

(1.) Heard Ms. V. Hima Bindu, the learned Counsel representing the appellant. Though the respondent was served with notice, none represents the respondent. The present appeal is preferred by M/s Rajam Extractions Ltd., Penubaka, represented by its Executive Director aggrieved by the judgment in un-numbered suit (G.R. No.320, dated 15-2-2002) on the file of the Senior Civil Judge, Raj am. The appellant-plaintiff is aggrieved of the rejection of the plaint under Order 7, Rule 11 of the Code of Civil Procedure on the ground that the same is barred by limitation. The appellant-plaintiff company filed the said suit on the file of the Senior Civil Judge, Rajam against the respondent-defendant for recovery of a sum of Rs. 1,88,895/- which became due on account of dealings carried by the defendant with it. (Rs.93,371/- principal amount + Rs.95,524/- interest). The office had taken an objection on the aspect of limitation.

(2.) The learned Judge placing reliance on a decision reported in Banka Venkata Subbarao v. Bala Subrahmanyam, 1964 (2) An.WR 229, came to the conclusion that the period of limitation has to be computed with reference to the last contract but not from the date of each delivery of goods and hence arrived at a conclusion that the suit is barred by limitation. It is stated that the last date of delivery of goods from the appellant-plaintiff to the respondent- defendant was dated 12-12-1998 and the suit was filed on 15-2-2002. On 21-3-2002 the plaint was represented and again on being returned on 23-3-2002. The appellant- plaintiff filed account books on 30-3-2002 and the Registry on 1.4.2002 required the appellant-plaintiff to file proof regarding the last payment made by the respondent on 16-2-1999 and inasmuch as no signed document was produced, in this regard, it was recorded that the suit is barred by limitation. Question of limitation always necessarily need not be a pure question of law. It may be a mixed question of fact and law as well.

(3.) Ms. V. Himabindu, the learned Counsel representing the appellant-plaintiff would contend that the rejection of plaint under Order 7, Rule ll(d) of the Code of Civil Procedure can be made only where the suit appears from the statement in the plaint be barred by any law. The learned Counsel would maintain that the further proof or evidentiary details need not be gone into at the threshold while numbering the suit and the plaint cannot be rejected on the ground of limitation which the learned Judge is expected to decide at trial. It may be different if bar of limitation is clearly attracted on averments made in the plaint. The learned Counsel also placed reliance on Seela Venkata Subbaiah v. Jinka Muni Swamy, 1997 (6) ALD 570 = 1997 (6) ALT 654, in this regard.