Calcutta High Court
Satish Kumar Agarwal vs Ashok Chaudhry on 17 July, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
IN THE HIGH COURT AT CALCUTTA
ORdINARy ORIGINAL CIvIL jURIsdICTION
ORIGINAL sIdE
Present :
THE HON'BLE JUSTICE ARINDAM MUKHERJEE
IA NO. GA 2 of 2025
IN
CS NO. 154 of 2024
SATISH KUMAR AGARWAL
Vs.
ASHOK CHAUDHRY
For the Plaintiff : Mr. Varun Kothari,
Mr. Nikunj Berlia,
Ms. Urvashi Jain,
Ms. Sreeja Chakraborty,
...... Advocates
For the Defendant : Mr. Jayanta Sengupta,
Mr. Ayan Dutta,
Mr. Bimalendu Das,
Ms.ShomritaDas
.........Advocates
Heard on : 17.07.2025
Judgment on : 17th July, 2025
Arindam Mukherjee, J:
1.
This is an application under Order VII Rule 11 of the Code of Civil Procedure,
1908 (in short ‘CPC‘) filed by the sole defendant in a suit for recovery of money
said to have been lent and advanced. The defendant has attacked the plaint
mainly on three following grounds:-
i) According to the averments in the plaint the money provided to
the defendant is spread over several years i.e. between 2009 and
2016. The last amount was advanced in 2016. Each
disbursement, according to the defendant, amounts to separate
transaction and cannot be said to be part of a single transaction
on the basis of the averments in the plaint. The defendant also
says that the plaint is silent as to when the money given as loan is
to be returned. It only speaks of payment of interest after each
four months. The money which has been lent prior to 2016 on
having not been repaid is clearly hit by the provisions of
Limitation Act, 1963 since they are separate and independent
transaction. The plaintiff cannot claim recovery of such amount;
ii) So far as the last tranche of disbursement is concerned, the
plaintiff says that the repayments shown for the purpose of the
limitation being extended cannot also be said to be payment to the
defendant as they were credited in the account of the plaintiff’s
wife who is a separate entity;
iii) Since no payment has been made within three years from 2016 to
the defendant either on account of interest or towards part
payment of the loan amount, the recovery of the last disbursement
amount is also hit by the provisions of limitation;
iv) The defendant then says that the plaintiff has stated that the
money given to the defendant is by way of investment. If it is
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an investment then the suit was required to be filed in theCommercial Division of this Court in view of the provisions of
2. The defendant therefore says that the suit is ex facie barred by limitation
and in any event cannot be filed in the Ordinary Original Civil
Jurisdiction of this Court. As a consequence thereof, the plaint is
required to be rejected and the suit should be dismissed.
3. The plaintiff, on the other hand, says that taking the averments made in
the plaint as a whole it is clear that there has been continuous
transactions between 2009 and 2016 in connection with disbursement of
the loan amount and receipt of interest from the defendant. The amounts
were disbursed as a part of a single agreement which is spread over a
period of time. Assuming without admitting that the disbursement do
not form part of a single agreement then also the same being a series of
transactions between the same parties wherein the continuous
disbursement and receipt of interest has taken place, no part of the
plaintiff’s claim can be said to be barred by limitation. So far as the
period beyond 2016 it is clear that two payments have been made by the
defendant to the plaintiff and as such the suit having been filed within
three years from the last payment cannot be said to be ex facie barred by
limitation as sought to be contended by the defendant. So far as the
other point is concerned, the plaintiff says that the transaction between
the plaintiff and the defendant is not a transaction between merchants
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nor there is any mercantile document between the parties for which it
will come under Section 2(c)(i) of the 2015 Act. Moreover, there is no
investment agreement between the parties and the defendant had no
dealing with the plaintiff to bring the transaction within the provisions of
either Sections 2(1)(c)(xi) or (xii) or (xiii) of the Commercial Courts Act,
2015. Thus, this cannot be termed as a commercial transaction for
which the suit is required to be filed in the Commercial Division of this
Court.
4. After hearing the parties and considering the materials on record, I find
that the points raised by the defendant for rejection of the plaint and
dismissal of the suit do not come squarely under any of the provisions of
Order 7 Rule 11 (a) to (d) of CPC. It cannot be said at this stage that the
plaint does not disclose a cause of action or that the relief(s) claimed by
the plaintiff is undervalued or that the suit appears from the statement
in the plaint to be barred by any law and in particular, the law of
limitation. The matter as to whether the amount was investment has to
be gone into at the trial of the suit after the defence is disclosed in
written statement. Similarly, the issue of limitation being a mix question
of law and facts is also necessary to be gone into at the trial. That apart
and in any event, on a meaningful reading of the plaint as a whole, I do
not find any substance in the arguments made by the defendant for
which the plaint is required to be rejected at the threshold on the ground
of either limitation or that the suit arises out of a commercial dispute
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between the parties.
5. The application under Order 7 Rule 11 of CPC filed by the defendant,
therefore, fails and is accordingly dismissed.
Urgent photostat certified copy of this judgment and order, if applied for,
be supplied to the parties on priority basis after compliance with all
necessary formalities.
(ARINDAM MUKHERJEE, J.)
pa
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