Mr. Vineet Malhotra, Ms. Reeva Jain Malhotra and Mr. Ankit Gupta, Advocates v. JAGJIT KAUR ANAND

Judgment

1. The present Petition seeks to challenge an order dated 03.02.2024 passed by the learned SCJ-cum-RC, West District, Tis Hazari Courts, Delhi [hereinafter referred to as <Impugned Order=]. By the Impugned Order, an Application under Order VII Rule 11 of the Code of Civil Procedure, 1908 [hereinafter referred to as <CPC=] stood dismissed by the learned Trial Court.

2. The record reflects that on the last date of hearing, the Respondent has sought an adjournment to make arguments. None appears on behalf of the Respondent today.

2.1 A Coordinate Bench of this Court had by an order dated 21.03.2024

directed that the proceedings before the learned Trial Court shall remain in abeyance. In view of the pendency of the order directing stay of the proceedings before the learned Trial Court, this Court deems it apposite to take the matter for hearing and final disposal today.

3. Learned Counsel for the Petitioner has raised one contention before Signature Not Verified Digitally Signed By:JAI NARAYAN Signing Date:14.05.2025 11:32:06 C.R.P. 114/2024 the Court. He submits that the Plaint is barred by limitation.

3.1 Learned Counsel for the Petitioner submits that as per the plaint, the cause of action arose in the year 2010, and thus, the suit which was filed in the year 2023 is barred by law. He seeks to rely upon the provisions of Article 113 of Schedule 1 of the Limitation Act, 1963.

4. This Court has examined the Impugned Order as well as the Application under Order VII Rule 11, CPC.

5. In the Application under Order VII Rule 11, CPC, the grounds as raised by the Petitioner in Paragraph 2 is that the true and correct facts were not disclosed and the action taken by ICICI bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [hereinafter referred to as <SARFAESI Act=] was not disclosed. Paragraph 3 states that the present suit is barred by law. It is apposite to extract Paragraphs 2 and 3 of this Application in this behalf: <2. That the plaintiff is very well aware that the ICICI Bank had already started the actions under the Securitisation & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and has not disclosed the this true and correct facts in its plaint and approached this Hon9ble court by concealing the other material facts from this Hon9ble court.

3. That the present suit of the plaintiff is barred by Law. Hence the suit of the plaintiff be dismissed as per the provisions of order 7 rule 11 C.P.C with heavy cost.=

6. No other averment with regard to the submission on the Plaint being barred by law have been set out in the Application. Paragraph 8 of the Application however discusses Section 34 of the SARFAESI Act and sets out that in terms of Section 34 of the SARFAESI Act, the jurisdiction of the Civil Court is barred. Thus, clearly from a perusal of the Application itself, Signature Not Verified Digitally Signed By:JAI NARAYAN Signing Date:14.05.2025 11:32:06 C.R.P. 114/2024 the ground that has been argued by the learned Counsel for the Petitioner today, was not even set out in the Application under Order VII Rule 11 of CPC.

7. In any event, this Court has examined the plaint as well. The plaint sets out that the cause of action arose on several dates and is a continuing one and lastly arose on the date the Notice was served to the Defendants for vacating the suit property. Concededly, this Notice for terminating the License of the Petitioner/Defendant No.1 is dated 29.12.2021 and the plaint has been filed in the year 2023. Even as per the Petitioner, the plaint was filed within the 3 years as set out therein.

8. It is a settled law that limitation is a mixed question of law and fact. The Supreme Court in the case of P. Kumarakurubaran v. P. Narayanan1, while relying on Saleem Bhai v. State of Maharashtra2 and Sopan Sukhdeo Sable v. Charity Commr.3, has held that the issue of limitation cannot be adjudicated at the threshold stage under Order VII Rule 11 CPC and thus rejection of the plaint on the ground of limitation without permitting the parties to lead evidence is legally unstainable. The relevant extract of the P. Kumarakurubaran case is below: <10. Having heard the learned counsel for the parties and upon careful perusal of the pleadings, the material on record, and the impugned judgment, we find it necessary to examine whether the rejection of the plaint under Order VII Rule 11(d) CPC was justified in the facts and circumstances of the present case. It is to be pointed out at this juncture that though the respondents/defendants sought to reject the plaint on two grounds - valuation of the suit and limitation - the High Court rejected the plaint solely on the ground that it was time-barred. Accordingly, we shall