Order 8

Order Details: COPY OF ORDER
Pdf Text: Bal Kishan vs. Dhanesh Mittal
CS(Comm).92/2025
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DLCT010010392025
IN THE COURT OF SH. DEEPAK GARG,
DISTRICT JUDGE-COMMERCIAL COURT-09
(CENTRAL DISTRICT), TIS HAZARI COURTS, DELHI.
CS (COMM) NO. :- 92/25
IN THE MATTER OF :-
BAL KISHAN ...Plaintiff
Vs.
MR DHANESH MITTAL ... Defendant
ORDER
29.07.2025
1. Vide this order I shall dispose of an application Under
Order VII Rule 11 read with section 151 CPC moved on
behalf of the defendant for seeking rejection of the plaint.
2. I have heard Ld. Counsels from both the sides and
carefully perused the record.
3. It is argued by Ld. Counsel for the applicant/defendant that
the plaintiff in para no. 5 of the plaint has alleged that the
defendant purchased kirana and dry fruits item from the
plaintiff on credit basis during the period 08.05.2019 to
05.03.2020 and further the statement of account filed by the
plaintiff shows that the last sale was made by the plaintiff to
defendant on 05.03.2020 vide invoice no. BKAS001340/19-
20 dated 05.03.2020 for Rs.61,040/- and last payment is
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alleged to be made by the defendant on 21.12.2020 in the sum
of Rs.25,000/-.
4. It is submitted that the if the limitation is counted from the
date of last payment i.e. 20.12.2020 even then the limitation to
file the present suit is expired on 20.12.2023 and the present
suit has been filed on 18.01.2025 which is clearly barred by
limitation.
5. It is further argued that order dated 10.01.2022 passed by
Hon’ble Supreme Court in Suo Moto Writ Petition no.03/2020
is not applicable in the present case and even if the said
judgment is applicable, the actual balance period of limitation
remaining w.e.f. 01.03.2022 was greater than 90 days and
hence, the said longer period i.e. till 20.12.2023 shall apply.
Reliance is placed on HT Media and anr. vs. Brainlink
International Inc. and ors. CS (Comm) 119/2020 decided by
Hon’ble High Court of Delhi vide order dated 17.12.2021.
6. Per contra Ld. Counsel for the plaintiff has vehemently
controverted the contentions of the Ld. counsel for the
defendant. It is argued that in view of the judgment of Hon’ble
Supreme Court In RE : COGNIZANCE FOR EXTENSION
OF LIMITATION SUO MOTO WRIT PETITION (C) No. 3
of 2020, Hon’ble Court directed that “the period from
15.03.2020 till 28.02.2022 shall stand excluded for the
purposes of limitation as may be prescribed under any general
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CS(Comm).92/2025
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or special laws in respect of all judicial or quasi judicial
proceedings and hence the present suit is within limitation.
7. It is to note that in RE: COGNIZANCE FOR
EXTENSION OF LIMITATION SUO MOTO WRIT
PETITION (C) No. 3 of 2020, Hon’ble Supreme Court of
India vide judgment dated 10.01.2022 passed the following
directions:
Para 5. (1) “..... It is directed that the period
from 15.03.2020 till 28.02.2022 shall stand
excluded for the purposes of limitation as may be
prescribed under any general or special laws in
respect of all judicial or quasi judicial proceedings.”
Para III of said judgment reads as under:
“In cases where the limitation would have expired
during the period between 15.03.2020 till
28.02.2022, notwithstanding the actual balance
period of limitation remaining, all persons shall
have a limitation period of 90 days from
01.03.2022. In the event the actual balance period
of limitation remaining, with effect from
01.03.2022 is greater than 90 days, that longer
period shall apply.”
8. The operation and affect of the aforesaid order was
considered by Hon’ble Supreme Court of India in M/S Arif
Azim Company Ltd. vs. M/S Aptech Limited 2024 INSC 155
(Judgment dated 01.03.2024), while dealing with a case under
Arbitration and Conciliation Act wherein Hon’ble Court has
held as under:
“84. The effect of the above-referred order of
this Court in the facts of the present case is that
the balance limitation left on 15.03.2020 would
become available w.e.f. 01.03.2022. The
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balance period of limitation remaining on
15.03.2020 can be calculated by computing the
number of days between 15.03.2020 and
27.03.2021, which is the day when the
limitation period would have come to an end
under ordinary circumstances. The balance
period thus comes to 1 year 13 days. This
period of 1 year 13 days becomes available to
the petitioner from 01.03.2022, thereby
meaning that the limitation period available to
the petitioner for invoking arbitration
proceedings would have come to an end on
13.03.2023.
9. The effect of the above referred order of Hon’ble Supreme
Court of India is that the entire period from 15.03.2020 till
28.02.2022 is to be excluded for computing the period of
limitation. Similar interpretation has been taken by Hon’ble
High Court of Delhi in Chroma Ator Energy Systems Pvt. Ltd.
vs. Indraprastha Gas Limited Arbitration petition 315/2024
decided on 01.04.2024.
10. In view of the same, in the present case, the entire period
from 15.03.2020 till 28.02.2022 is to be excluded for
computing the period of limitation and there is no merit in the
contention of the ld. Counsel for the applicant/defendant who
has argued to the contrary. Hence, reliance on H.T. Media
(Supra) is of no help to him.
11. Perusal of file reveals that before filing the present suit, the
plaintiff approached to the pre-institution mediation and it
filed application for the pre-institution mediation on
04.09.2024 before Central District Legal Services Authority
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and non starter report was issued by the said authority on
13.12.2024. It is settled law that when the parties remain
occupied with pre institution mediation such period shall be
excluded for limitation in terms of proviso to section 12A(3)
of Commercial Courts Act, 2015.
12. The present suit has been filed on 18.01.2025. When the
entire period from 15.03.2020 to 28.02.2022 [in terms of
judgment IN RE-Extension of Limitation (Supra) ] and period
from 04.09.2024 to 13.12.2024 (time spent in pre institution
mediation) is excluded, it is clear that the present suit shall be
within limitation only for the invoices for the date 19.10.2019
onwards and the claim of the plaintiff, if any, for the invoices
prior to 19.10.2019 shall be barred by limitation.
13. In the present case, the plaintiff has claimed an amount of
Rs.13,54,924/- as the principal amount outstanding against the
defendant and when this amount is calculated in the context of
the invoices filed by the plaintiff for the period 19.10.2019
onwards, it cannot be said that the amount claimed in the present
suit is barred by limitation. The suit for the said amount is
clearly within limitation.
14. In view of the above discussions, the present application of
the defendant under Order VII Rule 11 CPC has no merit and
the same is dismissed.
Announced in the open court (Deepak Garg)
today i.e. on 29th July 2025 Distt. Judge, (Comm. Court)-09,
Central District, THC : Delhi
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