Interim Order 5

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS (COMM.)/527/2024
DLND010052992024
STATE BANK OF INDIA
VS.
VEER SINGH
29.04.2025
Present: Ms. Shalini Upadhyay, Advocate for Plaintiff
(through video conferencing).
Defendant in person.
Ms. Renu Kuhar, Ld. LAC for Defendant (through
video conferencing).
Heard. File perused.
Defendant has filed true copy of order dated
21.04.2025 passed in CM (M) 625/2025 titled as “
Veer Singh vs.
State Bank of India” by Hon’ble Delhi High Court, as per which,
it has been directed that this Court may proceed further with the
matter, but shall not finally dispose off the suit till next date of
hearing.
Reply to application under Order VII Rule 11 (d) r/w
Section 151 CPC moved by defendant, is already filed on behalf
of plaintiff. Advance copy thereof already supplied to the
opposite side.
Accordingly, arguments on the aforesaid application
heard in the light of the material available on record.
Brief facts relevant and necessary for disposal of the
present application are that the plaintiff has filed the present suit
seeking recovery of Rs. 4,51,286.34Paise alongwith costs and
interest against the defendant, on the basis of averments that the
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defendant had approached the plaintiff bank for credit
facility/loan and accordingly, the plaintiff sanctioned a Term
Loan of Rs. 5,00,000/- on 24.01.2017, which the defendant had
agreed to repay in 57 Equated Monthly Installments (EMIs) of
Rs. 11,056/- each and executed the loan documents consisting of
Letter of Arrangement, Agreement of Loan cum Hypothecation
and Annexures both dated 24.01.2017, besides an affidavit dated
16.01.2017. The defendant also submitted self attested copies of
his PAN card, Aadhar Card, Voters Card, Electricity Bill, Driving
License etc. to the plaintiff bank in that regard. It is further the
case of the plaintiff that in view of Government of India’s
Emergency Credit Line Guarantee Scheme (in short ‘ECLGS’),
the defendant requested for working capital term loan of Rs.
54,000/-, which was accordingly sanctioned by the plaintiff bank
on 04.08.2020 against execution of Letter of Arrangement for a
sum of Rs. 3,28,823/- and Supplemental Agreement of Loan cum
Hypothecation for similar amount, both dated 04.08.2020, which
the defendant had agreed to repay in 36 EMIs of Rs. 1500/- each
till the entire loan alongwith interest is fully repaid. It is claimed
that the defendant had also executed revival dated 17.12.2021
and had also deposited a sum of Rs. 400/- in the loan account on
19.12.2021, whereafter, he committed repeated defaults in
payment of EMIs, as a result of which, the loan account was
classified as NPA. The repeated demands made by plaintiff fell
into deaf ears of the defendant and even pre-institution
proceedings did not yield any result. Hence, the present suit came
to be instituted.
Now adverting back to the application under
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consideration. By way of this application, the applicant/defendant
is seeking rejection of the plaint on the ground that suit is barred
by limitation. It is stated in the application that in order to create
limitation, the plaintiff bank has merged two different loan
accounts
i.e., Loan A/c no. 36487049285 dated 24.01.2017 and
Loan A/c no. 39575722456 dated 14.08.2020 in the present suit,
in order to bring the suit within limitation.
After referring to the case of the plaintiff and
documents filed therewith, Ld. Counsel of defendant has argued
that the defendant is poor and uneducated person working as a
Taxi Driver and he had purchased car on EMI basis via loan
account no. 36487049285 and regularly paid the monthly EMIs
till December, 2020. She further submitted that being oblivious
of the
mala fide intention on the part of the plaintiff bank and its
official, the defendant had accepted financial aid of Rs. 54,000/-,
which was an independent loan transaction and the present suit,
since filed on 01.07.2024, is barred by limitation in respect of the
first loan sanctioned vide Loan A/c no. 36487049285 dated
24.01.2017. It is submitted that since the last payment was made
by defendant in December, 2020, the period of limitation expired
on or about December, 2023. Hence, it is prayed that plaint is
liable to be rejected in view of provisions contained in Order VII
Rule 11 (d) CPC.
The application has been opposed by Ld. Counsel
for non- applicant/plaintiff on the ground that the objection raised
in the application is without any substance. It is submitted that in
terms of Government of India’s Emergency Credit Line
Guarantee Scheme, the plaintiff bank had sanctioned Guaranteed
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Emergency Credit Line by way of working capital Term Loan of
Rs. 54,000/- on 04.08.2020 and thus, the entire loan granted to
the defendant, under GECL got converted under ECLGS Scheme
facility. It is pointed out that the defendant has also signed the
Revival Letter on 17.12.2021 and hence, the present suit is well
within the period of limitation.
Needless to say that for the purpose of deciding an
application under Order VII Rule 11 CPC, only the averments
made in the plaint and the documents filed therewith by the
plaintiff, alone are relevant and to be considered under the law.
In
D. Ramachandran v. R.V. Janakiraman: (1999) 3
SCC 267, Hon’ble Supreme Court observed as under:
"
...It is well settled that in all cases of preliminary
objection, the test is to see whether any of the reliefs
prayed for could be granted to the appellant if the
averments made in the petition are proved to be true.
For the purpose of considering a preliminary objection,
the averments in the petition should be assumed to be
true and the court has to find out whether those
averiments disclose a cause of action or a triable issue
as such. The court cannot probe into the facts on the
basis of the controversy raised in the counter."
In subsequent decision in the case of
Liverpool &
London S.P. & I Association Ltd. v. M.V. Sea Success I & Anr.:
(2004) 9 SCC 512, Hon’ble Supreme Court observed as under:
"
139. Whether a plaint discloses a cause of action
or not is essentially a question of fact. But whether it
does or does not must be found out from reading the
plaint itself. For the said purpose the averments made
in the plaint in their entirety must be held to be
correct. The test is as to whether if the averments
made in the plaint are taken to be correct in its
entirety, a decree would be passed."
In
Exphar Sa and Anr. v. Eupharma Laboratories
CS (COMM.) 527/2024 Page 4 of 8
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Ltd. and Anr.: (2004) 3 SCC 688, Hon’ble Supreme Court
reiterated the above proposition in the following words:
"
9. Besides, when an objection to
jurisdiction is raised by way of demurrer and not
at the trial, the objection must proceed on the
basis that the facts as pleaded by the initiator of
the impugned proceedings are true. The
submission in order to succeed must show that
granted those facts the court does not have
jurisdiction as a matter of law. In rejecting a
plaint on the ground of jurisdiction, the Division
Bench should have taken the allegations
contained in the plaint to be correct."
Similar view has been taken by Division Bench of
Hon’ble Delhi High Court in the case of
M/s RSPL Limited vs.
Mukesh Sharma and Anr.:
(2016) SCC OnLine Del4285. The
relevant portion of the said judgment is extracted as under
:-
“11.
It must be stated that it is a settled
proposition of law that the objection to territorial
jurisdiction in an application under Order 7 Rule 10
CPC is by way of a demurrer. This means that the
objection to territorial jurisdiction has to be construed
after taking all the averments in the plaint to be
correct. In Exphar SA v. Eupharma Laboratories
Limited: (2004) 3 SCC 688, the Supreme Court
observed that when an objection to jurisdiction is
raised by way of demurrer and not at the trial, the
objection must proceed on the basis that the facts, as
pleaded by the initiator of the impugned procedure,
are true. The Supreme Court further observed that the
objection as to jurisdiction in order to succeed must
demonstrate that granted those facts, the Court does
not have jurisdiction as a matter of law. It is also a
settled proposition of law that while considering a
plaint from the standpoint of Order 7 Rule 10 CPC, it
is only the plaint and the documents filed along with
it, that need to be seen. The written statement is not to
be looked into at all."
Similar view has been again retreated and reaffirmed
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by Division Bench of Hon’ble High Court in the case of
‘
Rukhmani Keshwani Trading as Viswas Agarbatti Store vs. Raju
Agarbatti Works & Anr.’ FAO (COMM.) 188/2022 & CM APPL.
53098/2022 (stay), decided on 24.05.2023.
Although, the plea taken by defendant either by way
of written statement or by way of application in hand, need not
be considered, still, it may be noted that the defendant himself
has admitted that he had made payment to the plaintiff bank till
December, 2020. That being so, the facts of the present case
would be governed by the directions contained in order dated
10.01.2022 passed in
Suo Moto Writ Petition (C) no. 3/2020
passed by Hon’ble Apex Court, wherein it has been directed as
under :
“xxx
I. The order dated 23.03.2020 is restored and in
continuation of the subsequent orders dated
08.03.2021, 27.04.2021 and 23.09.2021, 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.
II. Consequently, the balance period of limitation
remaining as on 03.10.2021, if any, shall become
available with effect from 01.03.2022.
III. 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.
IV. It is further clarified that the period from
15.03.2020 till28.02.2022 shall also stand excluded
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in computing the periods prescribed under Sections
23 (4) and 29A of the Arbitration and Conciliation
Act, 1996, Section 12A of the Commercial Courts
Act, 2015 and provisos (b) and (c) of Section 138 of
the Negotiable Instruments Act, 1881 and any other
laws, which prescribe period(s) of limitation for
instituting proceedings, outer limits (within which
the court or tribunal can condone delay) and
termination of proceedings.
xxx”
In view of the aforesaid directions issued by Hon’ble
Supreme Court in the above referred matter, which is being relied
by both the sides, it is quite evident that in terms of para no. 5.1
thereof, the period of limitation from 15-3-2020 till 28-2-2022
has to be excluded. Further, in terms of para no. 5.3 thereof, the
actual balance period of limitation remaining as on 15-3-2020 if
more than 90 days or the additional limitation period of 90 days,
if the actual balance period of limitation is up to 90 days, would
be available with effect from 01-3-2022.
Having excluded the aforesaid period from
15.03.2020 till 28.02.2022, while computing the period of
limitation of three years, the present suit being filed on
01.07.2024, is even otherwise well within the limitation.
Moreover, it is the specific case of the plaintiff as mentioned in
para no. 18 of the plaint that the defendant had not only executed
Revival Letter dated 17.12.2021, which amounts to
acknowledgment of debt within the meaning Section 18 of the
Limitation Act, the defendant had also deposited a sum of Rs.
400/- in his loan account on 19.12.2021. In this view of the
matter, the suit is prima facie shown to be filed well within the
period of limitation. Hence, this Court is of the view that the
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application under consideration is totally misconcevied and is
devoid of any merit. Consequently, same is hereby dismissed,
however, with no order as to costs.
Put up on 29.07.2025 for PE by way of affidavit
with limited right available to the defendant for cross-
examination of the witnesses of plaintiff, as per law.
Advance copy of affidavit and list of witness(s) be
supplied to the opposite party at least three days before next date
of hearing.
Vidya Prakash
District Judge (Commercial Court)-02
Patiala House Court, New Delhi.
29.04.2025(V)
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