M/S. SHRI UTTAM SOLVENT EXTRACTION P LTD. AND OTHERS Vs. RAJASTHAN STATE INDUSTRIAL DEVELOPMENT AND INVESTMENT CORPORATION LTD. (RIICO), JAIPUR

JUDGEMENT

(1.) The present revision petition has preferred against the impugned order dated 15.10.2014 (Annexure-3) passed by learned Additional District and Session Judge No.8, Jaipur Metropolitan, in Civil Suit No.34/2007 (RIICO v. M/s Shri Uttam Solvent Extractions Pvt. Ltd. and Ors.) whereby learned court below rejected the application of present petitioners/defendants.

(2.) The brief facts of the case are that the respondent RIICO filed an application under sections 31 and 32 of the State Financial Corporations Act, 1951 for recovery of Rs. 94,01,295/- with interest till realization as aforesaid. On which notices were issued on 12.07.2007 to present petitioner/non-applicant who put his appearance on 22.03.2011. Thereafter on 03.09.2011, an application was filed to the effect that non-applicant no.2 Jethanand has expired and non-appellant nos. 1,3 and 4 also put their appearance on 03.09.2011. Vide order dated 20.05.2013, the application abated in relation to non-appellant no.2 Jethanand due to his death, as no application was filed for substitution. Thereafter, on 07.12.2013, petitioner/non-applicant filed an application under Order 7, Rule 11 read with 151 CPC before the court below which was dismissed vide impugned order dated 15.10.2014 against which this revision petition has been filed.

(3.) Mr. R.K. Agarwal Advocate, learned senior advocate appearing on behalf of the petitioner/non-applicant submits that the application submitted by respondent RIICO was in relation to non payment, which was advanced in the year 1992 and according to petitioner/non-applicant RIICO issued legal notice on 20.03.1997. Thereafter, on 10.03.1998 the possession mortgage/hypothecated property was taken by the appellant (RIICO). Accordingly, the cause-of-action for recovery of the amount arose in the year 1997 and the application was preferred on 31.05.2007, therefore, the same is barred by limitation and, therefore, it is not maintainable. Without considering this fact, learned court below wrongly rejected the application of petitioner/non-applicant submitted under Order 7, Rule 11 read with 151 CPC. He further submits that when the application under Order 7, Rule 11 CPC was pending then before deciding the aforesaid application, petitioner/non-applicant should not be forced for filing written statement but in the case in hand learned trial court vide order dated 11.03.2014 closed the written statement while reply to the application under Order 7, Rule 11 read with 151 CPC was filed by non-applicant RIICO before the trial court on 15.07.2014. He submits that it is true that the issue of question of limitation is next question of fact and law which came to be decided after framing issue and regarding evidence but without considering this fact learned court below wrongly closed the right of filing of written statement of defendants. Therefore, the impugned order may be quashed and set aside and in case Hon'ble Court affirms the impugned order then petitioner may be given opportunity for filing written statement which should be filed within seven days from today before the trial court.