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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK C.R.P. No.53 of 2024 (In the matter of an application under Section 115 of the Code of Civil Procedure, 1908) J. Venkat Kumar Swamy …. Petitioner -versus- M .Santosh Kumar Patro …. Opposite Party Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Petitioner - Mr. S.S. Rao, Sr.Advocate. assisted by Mr. B.K. Mohanty, Advocate. For Opposite Party- Ms. A.K. Patro, Advocate. CORAM: HON’BLE MR. JUSTICE A.C.BEHERA Date of Hearing :02.07.2025 :: Date of Judgment :23.07.2025 A.C. Behera, J. This revision under Section 115 of the CPC, 1908 has been filed by the petitioner against the opposite party challenging an order of rejection of his petition dated 25.06.2024 under O.7 R.11 of the CPC, 1908 passed on dated 22.11.2024 by the learned Senior Civil Judge, Berhampur. 2.
Legal Reasoning
The O.P. and the petitioner in this revision are the plaintiff and defendant respectively in the suit vide C.S. No.226 of 2024 pending in the Court of learned Senior Civil Judge, Berhampur. Page 1 of 9 C.R.P. No.53 of 2024 3. The factual backgrounds of this revision, which prompted the petitioner (defendant in the suit vide C.S. No.226 of 2024) for filing of the same is that, the O.P./plaintiff filed suit vide C.S. No.226 of 2024 on dated 25.06.2024 against the petitioner/defendant in the Court of learned Senior Civil Judge, Berhampur praying for passing the decree for realisation of money with interest against the defendant stating in his plaint in nutshell that, at the request of the defendant, he (plaintiff) had provided Rs.4,20,000/-(Rupees Four Lakh Twenty Thousand) to the defendant by transferring the same through NEFT on 05.01.2017 from his account to the account of the defendant on the basis of the close and good relationship between them as per an oral understanding (agreement) between them that, the defendant shall repay the said hand loan amount to the plaintiff within 2 years from 05.01.2017. But, when the defendant did not pay the same within the said period of 2 years since 05.01.2017, the defendant requested the plaintiff within that period to extend two years more for repayment of the said loan amount, to which, the plaintiff agreed and when within 4 years since 05.01.2017, the defendant did not repay the said hand loan amount to the plaintiff, then, the defendant also again requested plaintiff to extend another two years for its repayment, to which, the plaintiff agreed. But, in spite of such extended period as per C.R.P. No.53 of 2024 Page 2 of 9 the oral understanding in the form of agreement between the parties, the defendant did not repay the said loan amount, then the plaintiff requested the defendant to repay the same, but the defendant did not repay and avoided to receive the phone calls of the plaintiff. For which, the plaintiff issued a legal notice on dated 28.03.2024 through his advocate to the defendant requesting him to repay his above outstanding dues. After receiving such legal notice, the defendant answered the same on dated 01.04.2024 giving evasive and baseless reply through his advocate. For which, without finding no other way, the plaintiff approached Civil Court by filing the suit against the defendant praying for recovery of the said loan amount i.e. Rs.4,20,000/-(Rupess Four Lakh Twenty Thousand) with interest thereon from him (defendant) along with other reliefs, to which, he (plaintiff) is entitled for stating that, the cause of action for filing of the suit by the plaintiff has arisen within the limitation on the basis of the above extended period for repayment of his loan dues by the defendant. 4. After filing that suit vide C.S. No.226 of 2024 against the defendant by the plaintiff, the defendant filed a petition under O.7 R.11 of the CPC, 1908 on dated 12.09.2024 praying for rejection of the plaint of the plaintiff on the sole ground that, when, as per the Section 19 of the Limitation Act, 1963, the money payable for money lent, the limitation C.R.P. No.53 of 2024 Page 3 of 9 for filing of suit is 3 years and when the suit has been filed by the plaintiff more than 6 years after the money alleged to have been lent and when there is no written acknowledgment to the so called debt by the defendant and when the suit filed by the plaintiff is a suit for recovery of money, for which, the suit of the plaintiff is barred by limitation in view of Section 19 of the Indian Limitation Act, 1963. Therefore, the plaint of the plaintiff is to be rejected as per O.7 R.11 of the CPC, 1908, to which, the plaintiff seriously objected stating that, the averments made in the plaint of the plaintiff is not justifying its rejection under O.7 R.11 of the CPC, 1908. For which, the petition under O.7 R.11 of the CPC, 1908 filed by the defendant is liable to be rejected. 5. After hearing from the learned counsels of both the sides, the learned Trial Court rejected to the petition under O.7 R.11 of the CPC, 1908 of the defendant on dated 22.11.2024 assigning the reasons that, “when it is the settled propositions of law that, while disposing of an application under O.7 R.11 of the CPC, 1908, the averment of the plaint is to be looked into and in the absence of statutory or legal embargo, the jurisdiction of the Civil Court is to be inferred. For which, in my considered opinion, there is no ground to consider the said petition under O.7 R.11 of the CPC, 1908 of the defendant, which involves interpretation of law, which could be gone into in detail during the course of the trial. So, the petition C.R.P. No.53 of 2024 Page 4 of 9 under O.7 R.11 of the CPC, 1908 of the defendant is being misconceived in the eye of law. The same stands rejected.” 6. I have already heard from the learned Sr. Advocate for the petitioner (defendant) and the learned counsel for the O.P. (plaintiff). 7. During the course of hearing, the learned senior advocate for the petitioner (defendant) relied upon the decision reported in (2020) 7 SCC 366 between Dahiben Vrs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives and others, wherein it has been held that, the plaint shall be rejected under O.7 R.11 of the CPC, 1908, when averments in the plaint appears to be barred by law. 8.
Legal Reasoning
In order to assail the impugned order, the learned senior advocate for the petitioner (defendant) submitted that, as no document has been filed by the plaintiff with his plaint showing any written acknowledgment to the so called debt of the plaintiff by the defendant, the plaint of the plaintiff cannot be held maintainable in view of Section 19 of the Indian Limitation Act, 1963. 9. It is the well settled propositions of law that, at the time of consideration of a petition under O.7 R.11 of the CPC, 1908 filed by the defendant for rejection of the plaint of the plaintiff, only averments made in the plaint by the plaintiff are to be taken into consideration and in that stage, the possible plea of the defendant or any extraneous material other C.R.P. No.53 of 2024 Page 5 of 9 than the averments in the plaint can never be looked into by the Court for consideration of the petition under O.7 R.11 of the CPC, 1908 filed by the defendant. 10. It has been averred in the plaint of the plaintiff that, he (plaintiff) had given Rs.4,20,000/-(Rupees Four Lakh Twenty Thousand) to the plaintiff as friendly hand loan by transferring the same from his account to the account of the defendant on dated 05.01.2017 through NEFT with a mutual understanding in the form of oral agreement between the parties that, the said friendly hand loan amount shall be repaid by the defendant within 2 years since 05.01.2017. But, when the defendant did not repay the same, then as per his request, the plaintiff had agreed within that period to extend further period of 2 years for the defendant to repay the same and when the defendant also did not able to repay the same within the said extended period of 2 years i.e. within 4 years since 05.01.2017, then, the defendant again requested the plaintiff for extension of another 2 years, then after taking the said request of the defendant into consideration, the plaintiff extended another 2 years for its repayment. But, in spite of passing of 6 years since 05.01.2017, the defendant did not repay the said agreed hand loan amount of the plaintiff before 05.01.2023, then the plaintiff sent legal notice to the defendant on dated C.R.P. No.53 of 2024 Page 6 of 9 28.03.2024 requesting him to repay the same, to which, the defendant received on 01.04.2024 and when after receiving such legal notice, the defendant gave baseless and evasive reply, then the plaintiff filed the suit on dated 25.06.2024 against the defendant, which is within 2 years after the 2nd extended period since 05.01.2017 provided to the defendant by the plaintiff for repayment of the hand loan. 11. Now the question arises, whether in absence of any written acknowledgment to the so called private hand loan of the plaintiff by the defendant, the suit of the plaintiff shall be hit and barred under Section 19 of the Indian Limitation Act, 1963, as the same has not been filed within 3 years since 05.01.2017 i.e. from the alleged date of transfer of money from the account of the plaintiff to the account of the defendant? 12. It is the settled propositions of law that, each acknowledgment of liability of loan will give a fresh starting point of limitation. If, the borrower acknowledges his debt, the period of filing suit is saved as per Section 29 of the Indian Limitation Act, 1963 and it would commence from the date of such acknowledgement. When, an oral agreement between the parties through mutual understanding is not impermissible under law and when as per the averments of the plaint, the defendant/borrower has acknowledged the debt of the plaintiff requesting the plaintiff within 2 years of the C.R.P. No.53 of 2024 Page 7 of 9 limitation period of its repayment i.e. within 2 years of the commencement of its limitation i.e. within 2 years from 05.01.2023 for its repayment, then at this juncture, from the bare reading of the plaint of the plaintiff at this stage, prior to trial of the suit, it cannot be held that, the plaint of the plaintiff is hit and barred under Section 19 of the Indian Limitation Act, 1963 and the same is liable to be rejected. For which, in other words, it is held that, the above ground raised in the petition under O.7 R.11 of the CPC, 1908 filed by the defendant for rejection of the plaint of the plaintiff has become inacceptable under law for the reasons assigned above. 13. Therefore, the observation made by the learned Senior Civil Judge, Berhampur in the impugned order for the rejection of the petition under O.7 R.11 of the CPC, 1908 of the defendant leaving the point raised by the defendant under Section 19 of the Indian Limitation Act, 1963 to be considered during the course of trial of the suit on merit cannot be held as erroneous. For which, the question of interfering with the same through this revision filed by the petitioner (defendant) does not arise. Due to the observation made above in this judgment, the decision relied upon by the learned senior advocate for the petitioner indicated in Paragraph No.7 of this judgment has become inapplicable to this revision. C.R.P. No.53 of 2024 Page 8 of 9 14. Therefore, there is no merit in the revision of the petitioner (defendant). The same must fail. 15. In result, the revision filed by the petitioner (defendant) is dismissed on contest. Learned Trial Court is directed to conclude the trial of the suit vide C.S. No.226 of 2024 as expeditiously as possible allowing the defendant for filing its written statement and to complete the trial of the same within a period of one year from the date of communication of this judgment without being influenced in any manner by the observations made in the judgment. 16. Registry is directed to communicate this judgment immediately to the learned Senior Civil Judge, Berhampur in reference to C.S. No.226 of 2024. 17. Accordingly, the revision filed by the petitioner (defendant) is
Decision
disposed of finally. Orissa High Court, Cuttack. 23.07.2025//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 24-Jul-2025 16:04:27 C.R.P. No.53 of 2024 (A.C. Behera), Judge. Page 9 of 9