JAGMOHAN KHANDELWAL Vs. VIMAL KUMAR SURANA

JUDGEMENT

(1.) This revision application under Section 115 of the Code of Civil Procedure has been filed at the instance of applicantdefendant dismissing the application under Order 7 Rule 11 (d) CPC.

(2.) Needless to say, a suit for realization of Rs. 58, 855/- has been filed by the plaintiff-respondent in the Trial Court which is pending for its adjudication. The defendant-applicant filed written statement and denied the averments and raised objection of limitation as well as that plaintiff is not having registration of stock brokers, sub-brokers, share transfer agents as required under Section 12 of the "Securities and Exchange Board of India Act, 1992 (for short, the Act of 1992). According to the defendant applicant, on account of lack of such registration as required under Section 12 of the said Act of 1992, the suit is not maintainable. So far as the plea of limitation is concerned, the pleading of defendant is that as per the plaintiff's own showing the transaction took place on 18.11.2000. Thereafter on 23.9.2003 i.e. within three years of limitation to file suit, the notice was sent through counsel but despite having received the said notice, the defendant/applicant did not make the requisite payment and hence according to the defendant, the suit which has been filed on 3.2.2004 on the basis of cause of action accrued on 23.9.2003 is ex facie barred by time.

(3.) The learned Trial Court framed Issue nos. 5 and 6 in regard to the aforesaid objections raised in the written statement by defendant-applicant. Thereafter, an application I.A. No.1 has been filed by defendant-applicant under Order 7 Rule 11(d) CPC praying that the plaint which has been filed is barred by law on the aforesaid objections which are raised in the written statement. The learned Trial Court dismissed the objections raised in the application by holding that Issues 5 and 6 which are framed are having nexus with the facts and they are mixed question of fact and law and cannot be decided as preliminary issues and the suit cannot be dismissed at the threshold. In this manner this revision application under Section 115 CPC has been filed by defendant applicant.