JUDGMENT Badar Durrez Ahmed, J.
1. This application has been moved by the defendant No.4 (Gulf Air), under Order VII Rule 11 for rejection of the Plaint on two grounds:-
(1) The plaint does not disclose any cause of action as against the defendant No.4.
(2) The suit as against defendant No.4 is not maintainable as being time barred.
The Back ground:
2. The plaint was originally filed at Ludhiana on 1.10.1993. It was numbered as S. No. 458/1993. The defendant No.4 (Gulf Air) had filed an application, inter alia, objecting to the plaint on the ground of lack of jurisdiction and there being no cause of action disclosed against it. That application was dismissed by the Court at Ludhiana. The defendant No.4 preferred a Civil Revision before the Punjab and Haryana High Court which decided the same in favor of the Defendant No.4 on 7.9.1999. In other words, the Punjab and Haryana High Court held that the Court at Ludhiana did not have the jurisdiction to entertain the suit. Being aggrieved thereby, the plaintiff filed a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court. The same was dismissed in liming by the Supreme Court. As a consequence, the Court at Ludhiana, on 12.10.2000, returned the plaint to the plaintiff for presentation of the same in a Court of Competent jurisdiction. This is apparent from the endorsement made on the reverse of page 1 of the plaint which also bears the seal of the Court of the Civil Judge, Senior Division, Ludhiana. Within 18 days of the return of the plaint, the same was filed in this Court on 30.10.2000.
The Plaintiff's case as set out in the Plaint:
3. The suit is for recovery of an amount of Rs 22,39,450/- representing a principal amount of Rs 19,59,250/- and interest with effect from 15.12.1992 to 30.9.1993 amounting to Rs 2,80,200/-. The recovery of the aforesaid amount has been sought as representing the price of goods (including interest) allegedly supplied by the plaintiff to the defendants 1 and 2. Upon a reading of the plaint in its entirety, the case of the plaintiff appears to be that the defendants 1 and 2 placed orders on the plaintiff in respect of certain cotton and woolen products. The defendants 1 and 2 are carrying on business as importers and dealers of cotton and cotton textiles as well as woolen products from their place of business at Manchester, U.K. There are averments contained in the plaint to the effect that the contract was with defendant No.1 who purportedly had assigned it to Defendant No.2 that the plaintiff had not consented to the said assignment. Insofar as a decision on this application is concerned, it is not necessary for me to go into these aspects and I am proceeding on the basis that defendants 1 and 2 are essentially one party. The plaintiff has alleged that the arrangement was that the goods shall be supplied by the plaintiff to the defendants 1 and 2 at Manchester against a Letter of Credit. The goods were to be transported by carriers including the defendant No.4. The Letter of Credit was to be negotiated against various documents presented to the defendant No.3. These documents included the original Airway Bill, Invoices, Packing List etc. It is alleged in paragraph 11 of the plaint that pursuant to the terms between the plaintiff and the defendants 1 and 2, on or about 14.12.1992 the plaintiff delivered to the defendant No.4 (Gulf Air) for onward transmission to the defendant No.1 diverse quantities of goods covered by various orders numbers for a total c.i.f. Value of U.S. $ 60,440. It is further stated in the said paragraph 11 that the said delivery was evidenced by the Airway Bill No. 072-2468 dated 14.12.1992. In paragraph 17 of the plaint it is averred that by a letter dated 21.1.1993 the defendant No.6 informed the plaintiff that defendant No.3 had purported to rejected the documents which were furnished by the plaintiff for receiving payment under the Letter of Credit. Some of the grounds for rejection of the documents were:-
1. LC expired.
2. Late shipment.
3. Shipment effected from Delhi to Bombay.
4. Insurance Certificate presented in lieu of Policy which is dated than Flight date in Air Way Bill.
5. Insurance does not cover transhipment risks.
6. Photocopy of Certificate of Origin presented.
7. Photocopy Generalised System of preference Certificate of Origin Form A presented.
8. Photo copy export Certificate presented.
9. Inspection Certificate not presented.
According to the plaintiff the rejection of the documents by defendant No. 3 was wrongful and illegal and in breach and violation of the terms of Letter of Credit itself. Therefore, according to the plaintiff, it is entitled to claim a sum of U.S. $ 66,696 from the defendant No.3 as well as interest thereon @ 18% per annum.
4. In paragraph 19 of the plaint, the plaintiff has averred that though the defendant No.3 purported to reject the documents and returned the same to the defendant No.6, it transpired that the defendant No.1 and/or defendant No.2 obtained delivery of the said consignments from the defendant No.4. On the basis of this averment, the plaintiff claimed that the defendants 1 and 2, having taken delivery of the goods in question and utilised the same, were liable to the plaintiff for the price of the said goods and, accordingly, in paragraph 21 of the plaint, it is averred that there is a sum of Rs. 22,39,450/- (U.S. $ 62,696) including interest now due and owing from by the defendants 1,2 and 3 jointly and severally as per particulars set out in the said paragraph.
5. A claim against the defendant No.4 has also been made and such claim is entirely founded from the averments contained in the paragraphs 22 and 23 of the plaint which reads as under:-
22. Delivery of the goods has been taken of the said two consignments by the Defendant No.1 and/or 2 from the defendants 4 and 5 respectively. Such delivery has been given by the Defendants 4 and 5 despite the fact that the original negotiable set of documents and particularly the consignee's copy of the Airway Bill could not have been presented to the said defendants as the said documents were returned by the defendants No.3 to the plaintiff through the defendant No.6. In the circumstances, the said defendants No.4 and 5 have handed over the goods to the defendants No.1 and/or 2 wrongfully and illegally and in breach and violation of the terms and conditions of the contract for carriage of goods entered into between the said defendants and the plaintiff in respect of the said two consignments. By reason of the aforesaid the plaintiff has suffered loss and damage and expenses which the plaintiff is entitled to claim and claims from the said defendants. The plaintiff is also entitled to claim and claims interest on the aforesaid amount at the rate of 18%per annum. The said rate of interest is the reasonable rate of interest given the commercial nature of the transaction between the parties.
23. That in the circumstances, there is a sum of Rs.22,39,450/- due and owning by the defendant No.4 to the plaintiff as per the particulars set out hereunder which sum or any part thereof the defendant has failed and neglected to pay despite repeated requests and reminders:-
Damage for wrongful delivery of goods as stated in paragraph 21 hereinabove: Rs.19,59,250/- Interest thereupon on/or from 15.12.1992 till filing of the suit i.e. 30.09.1993: Rs.2,80,200/- ------------------ Total Rs.22,39,450/- ------------------
6. Nothing is claimed against the defendant No. 6. The plaintiff has, therefore, prayed for a decree for the recovery of the said sum of Rs 22,39,450/- against defendants 1 to 5. From the aforesaid averments, it appears that the plaintiff has three sets of claims. The first, against the defendants 1 and 2 for taking delivery of the goods and not paying the price thereof. The second, against the defendant No.3 (National Westminister Bank, P.L.C.) the issuing bank of the Letter of Credit, for wrongful rejection of the documents and alleged breach and violation of the terms of Letter of Credit. The third, against the defendants Nos. 4 and 5 for having handed over the goods to the defendants 1 and 2 wrongfully and illegally in breach and violation of the terms and conditions of their contract of carriage of goods entered into between the said defendants and the plaintiff in respect of their respective consignments. It is alleged that because the defendant No.4 wrongfully handed over the goods to the defendants 1 and 2, the plaintiff has suffered loss and damage and expenses which the plaintiff is entitle to claim and claims from the defendant No.4. In sums and substance, these are the claims of the plaintiff in the present suit.
Does the Plaint disclose any cause of action against defendant No.4?
7. The learned counsel appearing for defendant No.4 submitted that the only allegation against the defendant No.4 is contained in paragraph 22 of the plaint which has been referred to above. The entire case against the defendant No.4 is that the defendant No.4 gave delivery to the defendants 1 and 2 "despite the fact that the original negotiable set of documents and particularly the consignee's copy of the Airway Bill could not have been presented to the said defendants as the said documents were returned by the defendant No.3 to the plaintiff through the defendant No.6." According to Mr Wadhwani, for deciding an application under Order VII Rule 11 and with particular reference to the issue of the plaint not disclosing any cause of action, only the plaint and the documents accompanying the plaint can be looked into. It was his case that even if the factual allegations made in paragraph 22 were taken to be correct, the same would still not disclose any cause of action. It was his case that the defendant No.4, as per the contract of carriage evidenced by the Airway Bill was required to deliver the consignment to the consignee. The plaintiff has stated in the plaint that the defendant No.4 did deliver the consignment to the consignee, i.e. Defendants 1 and 2. Therefore, according to Mr Wadhwani, the defendant No.4 has done all that was required of it and, therefore, going by the averments made in the plaint itself, there is no cause of action disclosed insofar as the defendant No.4 is concerned. He referred to various provisions of the Carriage by Air Act, 1972. Section 4 of the Act provides that the Rules contained in the Second Schedule, shall, subject to the provisions of the Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage. It is an admitted case that the Rules prescribed in the Second Schedule shall govern the contract of carriage in the present case. Rule 5 of the Second Schedule (hereinafter referred to as the said Rules) prescribes that every carrier of cargo has the right to require the consignor to make out and hand over to him a document called an "air consignment note" and every consignor has the right to require the carrier to accept this document. Rule 6(1) stipulates that the Airway Bill shall be made out by the consignor in three original parts and be handed over with the cargo. Sub-Rule (2) prescribes that the first part shall be marked "for the carrier" and shall be signed by the consignor. The second part shall be marked "for the consignee" and shall be signed by the consignor and by the carrier and shall accompany the cargo. The third part shall be signed by the carrier and handed by him to the consignor after the goods have been accepted. Rule 10(1) provides that the consignor is responsible for the correctness of the particulars and statements relating to the cargo which he inserts in the Airway Bill. Rule 11(1) makes it clear that the Airway Bill is to constitute prima facie evidence of the conclusion of the contract, of the receipt of the cargo and of the conditions of carriage. In Rule 12(4) it is provided that the right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Rule 13. Rule 13(1) entitles the consignee, on arrival of the cargo at the place of destination, to require the carrier to hand over to him the Airway Bill and to deliver the goods to him, on payment of the charges due and on complying with the conditions of carriage set out in the Airway Bill.
8. Mr Wadhwani further referred to a copy of the Airway Bill No. 072-2468 which has been referred to in paragraph 11 of the plaint. He pointed out that the consignee's name has been given as Vijay Hosiery Company (i.e. the defendant No.1). Its address at Manchester has also been specified. The declared value of the goods has been shown as U.S. $ 45072 and it is indicated therein that the freight has been pre-paid. The Airway Bill shows the consignor to be the plaintiff and it is dated 14.12.1992. The conditions of contract are contained in the reverse of the said Airway Bill and Mr Wadhwani drew my attention to clause 9 thereof which reads as under:-
9. Except as otherwise specifically provided in this contract, delivery of the goods will be made only to the consignee named on the face hereof unless such consignee is one of the carriers participating in the carriage, in which event deliver shall be made to the person indicated on the face hereof as the person to notified Notice of arrival of the goods will, on the absence of the other instruction be sent to the consignee, or the person to be notified by ordinary method; carriers is not liable for non receipt or delay in receipt of such notice.
9. Upon a reading of the provisions of the Carriage by Air Act, 1972 the Airway Bill and the Conditions of Contract, Mr Wadhwani submitted that the contract as evidenced by the Airway Bill has been fully complied with in Fthat the goods have been delivered to defendant No.1 (the consignee). This is admitted by the plaintiff and, therefore, no cause of action is disclosed against the defendant No.4. Hence, the plaint is liable to be rejected insofar as the defendant No.4 is concerned.
10. Mr Simran Mehta, the learned counsel for the plaintiff submitted that the plaint discloses a cause of action and the arguments of the learned counsel for the defendant No.4 are not tenable. He submitted that on the plea of there being no cause of action disclosed in the plaint, two factors require consideration in the present case. The first circumstance is that the defendant No.4 had filed an Order VII Rule 11 application earlier in the Court at Ludhiana. In that application, inter alia, the questions of jurisdiction and purported lack of cause of action were raised. That application was dismissed by an order dated 1.12.1998. The defendant No.4 filed a Revision Petition in the Punjab and Haryana High Court, being Civil Revision No. 1019/1999. The only question that was urged before the Punjab and Haryana High Court was whether the Court at Ludhiana had jurisdiction to try the matter or not as would appear from paragraph 7 of the order passed by the Punjab and Haryana High Court in the said Civil Revision No. 1019/1999 which is a reported decision being Gulf Air Company v. Nahar Spinning Mills Limited and Ors. 2000 (1) Revenue Law Reporter 78. After considering various aspects and in particular the provisions of the Carriage by Air Act, 1972, the Punjab and Haryana High Court held that the Court at Ludhiana qua the defendant No.4 had no jurisdiction. It held that if the plaintiff had any cause of action against the defendant No.4, the proper forum for it will be the Courts at Delhi because the Courts there have the jurisdiction to entertain the cause of action against the defendant No.4. It was, therefore, urged by Mr Mehta that while the defendant No.4 had moved an application under Order VII Rules 10 and 11 challenging the jurisdiction as well as raising the issue of there being no cause of action and the same had been dismissed by the Court at Ludhiana, in the Civil Revision before the Punjab and Haryana High Court only the point of jurisdiction was urged which was decided in favor of defendant No 4 and the Special Leave Petition preferred by the plaintiff against the judgment and order of the Punjab and Haryana High Court was also dismissed. From these circumstances, it can be inferred that as regards jurisdiction the issue was settled that the Court at Ludhiana had no jurisdiction at least insofar as the defendant No.4 was concerned. As regards the question of cause of action, the Defendant No.4's application on this issue was also dismissed. The defendant No.4 did not urge this issue before the Punjab and Haryana High Court and, therefore, it can be safely deduced that the defendant No.4 had accepted the position. In these circumstances, the defendant No.4 having abandoned the plea of non-disclosure of cause of action, cannot now be permitted to re-agitate the same by way of the present application. The other submission of Mr Mehta is that a distinction has to be brought out between sustainability and maintainability of the plaintiff's case. He submitted that the facts as averred in the plaint, have to be proved. The facts, if not proved in a trial may result in the dismissal of the suit but it would not mean that the plaint is liable to be rejected at the threshold on the ground that the facts are not likely to be proved.. He submitted that at the stage considering an application under Order VII Rule 11, the Court is not required to conduct a detailed inquiry and to pre-judge the issue before the evidence is led. All that has to be seen is that the plaint contains a bundle of facts which if proved would entitle the plaintiff to the relief that he is claiming. It may ultimately turn out that the facts pleaded in the plaint cannot be established on evidence. But this is a consideration which is to be taken up at the time of final decision in the matter and not at the stage prior to the evidence on the issue.
11. Mr Mehta referred to the decision of a learned Single Judge of this Court in the case of Ramnath Exports Private Ltd. v. The Chairman, Air India and Anr. . In that case goods had been sent by the plaintiff therein to the buyer in Denmark through the carrier (Air India). It appears that the cargo was misplaced in transit. After a great deal of effort the cargo was located and was sent to the buyer in Denmark but as the delivery was delayed the consignee was not prepared to accept the same. This resulted in losses to the plaintiff. The defendant (Air India) had taken the stand in the written statement filed by it that as carriers they had airlifted the consignment to its destination as per contract and, no liability accrues or arises against the Air India and that it was a matter solely between the plaintiff and the consignees since the consignee has refused to take delivery of the consignment. An objection as to the maintainability of the suit had been raised by the defendant on the ground that the dispute was solely between the plaintiff and the consignee and, therefore, the suit was not maintainable against Air India. In this context, the learned Single Judge decided this issue of maintainability as under:-
25. The objection as to the maintainability of the suit raised by the defendants is that dispute is solely between the plaintiff and the consignee and since the consignee has refused to take delivery of the consignment, the suit is not maintainable . I am afraid the choice is of the plaintiff to sue against whom its claim can succeed. Since the main plank of the claim of the plaintiff is that defendants on account of their negligence failed to deliver the consignment in time to the buyer and the buyer was therefore justified in not taking the consignment, the objection is meaningless and is devoid of merits. The issue is decided in favor of the plaintiff and against the defendants.
Mr. Mehta then referred to the decision of another learned Single Judge of this Court in the case of Asha Bhatia v. V.L. Bhatia . In the said decision it was noted in paragraph 4 thereof that the position of law in relation to Order VII Rule 11 is well settled and has been laid down by the Hon'ble Supreme Court in Saleem Bhai v. State of Maharashtra which clearly held that the only relevant facts which need to be looked into for deciding an application under Order VII Rule 11 are the averments in the plaint. The power under Order VII Rule 11 could be exercised at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order VII, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
12. Mr Mehta also referred to a decision of a learned Single Judge of this Court in the case of Kanwal Kishore Manchanda and Anr. v. S.D. Technical Services Pvt. Ltd . In particular, he referred to paragraph 37 thereof which reads as under:
37. The facts pleaded in the plaint and as noted above clearly disclose a cause of action entitling the plaintiff to maintain the suit. Whether or not the plaintiff is able to sustain the action or not is distinct from the maintainability of the action. Sustainability of the action would depend on the evidence once led.
11. It is in this context that Mr Mehta submitted that the distinction between sustainability and maintainability of an action has to be kept in mind. He submitted with reference to paragraph 12 of the plaint that inter alia the original Airway Bill No. 072-2468 dated 14.12.1992 was forwarded to the defendant No.3 for negotiation against the Letter of Credit. He then submitted that the Airway Bill shown at documents page 10 mentioned the Invoices and the Invoices in turn shown at page No.3 of the document file show the terms of delivery and payment as "document drawn under Letter of Credit No. DCIMC 9164 MPBDT.5.8.92 of National Westminister Bank P.L.C., Documentary Credit Department, P.O. Box 359, Lowry House, Marble Street, Manchester, England." Mr Mehta then referred to a decision in the case of Anil & Co. v. Air India and Ors. AIR 1986 Delhi 312. The facts in that case were that the plaintiff exported the goods to the New York buyer and booked the consignment with the Air India at Delhi for carriage to New York. In the Airway Bill the banker of New York was mentioned as the consignee. The Airway Bill and other documents were forwarded to the New York banker who was to hold the goods on account of the buyer who on intimation from the banker was to get the documents released on payment of the amount mentioned in the bill of exchange. The Air India carried the consignment to Paris and from there entrusted them to the Trans World Airlines for carriage to New York. The Trans World Airlines wrongly delivered the consignment to the New York buyer without obtaining payment and without notice to the consignee banker. Since no one appeared to get the documents cleared no payment could be obtained by the banker. It was held that it was the buyer who was responsible for payment of the value of the consignment primarily and in case the Air India was obliged to pay the amount, the remedy to recover the same from the buyer must remain alive. It was held that since the contract for carriage of the consignment from Delhi to New York was entered into by the plaintiff with the Air India, it was the liability of the Air India as the first carrier to carry the goods to New York. If the Air India chose to employ the Trans World Airlines as sub-agent to carry the goods from Paris to New York, the contract in this regard was between Air India and Trans World Airlines only. The liability of the Air India qua the plaintiff subsisted. As Trans World Airlines acting as sub-agent of the Air India negligently and without authority delivered the consignment to the buyer without obtaining payment, the Air India was responsible for the wrongful act of the Trans World Airlines and was liable to account for the consignment to the plaintiff. Therefore, the plaintiff was entitled to recover the value of the consignment from the Air India. Paragraph 11 of the said decision reads as under:-
11. There is little doubt from these facts and circumstances that the Trans World Airlines acted in a highly irresponsible manner in handing over the consignment to defendant No.4 without caring to take note that it was the defendant No.3 banker who was the consignee mentioned in the air waybill. Of course, it had been added therein that it was on account of defendant No.4. However, there could not be any misgiving that the consignee was defendant No.3 and until they had endorsed the air waybill in favor of defendant No.4 on realisation of charges which meant the price thereof, the Trans World Airlines could not have handed over the consignment to defendant No.4. In fact, the release of consignment could only have taken place when the air waybill was presented. Without caring to obtain its delivery the Trans World Airlines passed on the consignment to defendant No.4.
12. Mr Mehta placed strong reliance on this decision to assert that wrongful delivery to a consignee in absence of consideration received from the consignor was clearly a cause of action which was available. In the said decision the cause of action was found to be sustainable. In the present case, according to him we are not to consider the sustainability of the claim against the defendant No.4 but only the question of maintainability. It is averred in the plaint that defendant No.4 had wrongly delivered the goods to defendant No.1 for which the defendant No.4 may itself liable to the plaintiff. This clearly amounts to a cause of action. Whether this cause of action is ultimately sustained in fact and in law is a subject matter of the trial. Insofar as the question of Order VII Rule 11(a) is concerned, the plaint clearly discloses a cause of action.
13. Mr Wadhwani in rejoinder submitted with regard to the allegation that an earlier order VII Rule 11 application had been rejected that although the ground was taken in the Civil Revision before the Punjab and Haryana High Court though the same was not discussed in the decision. According to him, it was because the Court had no jurisdiction then whether there was or there was no decision of the cause of action would be of no effect. It has again gained relevant inasmuch as the suit has now been filed before this Court and it is, therefore, that the present application is being pressed. In the background of these facts and submissions it has to be examined as to whether the plaint is liable to be rejected on the ground that it does not disclosed cause of action. Order VII Rule 11(a) of the CPC provides that the plaint shall be rejected "where it does not disclose a cause of action." In Bullen & Leake and Jacob's Precedents of Pleadings: The Common Law Library Number 5: Twelfth Edition, the meaning of cause of action has been set out as under:
Meaning of cause of action A cause of action has been defined as being:
every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved."1 or perhaps more accurately as being, Simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.
Essentially, therefore, a cause of action is constituted by the "bundle" or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the defendant for the relief or remedy which he is seeking. The factual situation on which the plaintiff relies to support his claim must be capable of being recognised by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant, and in this respect there is a close connection between the procedural law relating to the pleading of the statement of claim and the substantive law relating to what is recognised as a legally viable cause of action.
It is necessary for the statement of claim to fulfill its function that the elements or components, which together constitute the substantive right which is being claimed or enforced, must be alleged as the material facts of the pleading. What these "elements or components" are will depend upon the particular substantive right which is being raised in the pleading. The pleader, therefore, who is settling a statement of claim has, as it were, to look over his shoulder and examine the substantive law in order to ascertain and allege the material facts which constitute the elements or components of the particular substantive right which he intends to raise and to form the basis of the claim for the relief or remedy against the defendant. Put shortly, therefore, it may be said that a cause of action consists of the factual elements or components of a legal claim or the factual constituents of a legal right, or the facts which constitute the essential ingredients of an enforceable right or claim.
13. In Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I , the Supreme Court held that
140. A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence.
14. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal : the Supreme Court held that
16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. (See T. Arivandandam v. T.V. Satyapal 5.)
15. The Supreme Court further held in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I : that
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 their entirety, a decree would be passed.
In Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I the Supreme Court further held that
146. It may be true that Order 7 Rule 11(a) although authorises the court to reject a plaint on failure on the part of the plaintiff to disclose a cause of action but the same would not mean that the averments made therein or a document upon which reliance has been placed although discloses a cause of action, the plaint would be rejected on the ground that such averments are not sufficient to prove the facts stated therein for the purpose of obtaining reliefs claimed in the suit. The approach adopted by the High Court, in this behalf, in our opinion, is not correct.
147. In D. Ramachandran v. R.V. Janakiraman64 this Court held: (SCC p. 271, para 8) 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 averments disclose a cause of action or a friable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter.
148. Furthermore a fact which is within the special knowledge of the defendant need not be pleaded in the plaint. In Punit Rai v. Dinesh Chaudhary65 it is stated: (SCC p.216, para 16) These are the material facts relating to the plea raised by the appellant that the respondent is not a Scheduled Caste. We don't think if the respondent means to say that the petitioner should have stated in the petition that the respondent is not born of Deo Kumari Devi said to be married to Bhagwan Singh in Village Adai. If at all these facts would be in the special knowledge of the respondent, Bhagwan Singh and Deo Kumari Devi hence were not required to be pleaded in the election petition. It is not possible as well. In this connection, a reference may be made to a decision of this Court in Balwan Singh v. Lakshmi Narain 66. This case also relates to an election matter and it was held that facts which are in the special knowledge of the other party could not be pleaded by the election petitioner. It was found that particulars of the arrangement of hiring or procuring a vehicle would never be in the knowledge of the petitioner, such facts need not and cannot be pleaded in the petition.
149. In D. Ramachandran v. R.V. Janakiraman 64 it has been held that the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action.
In Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I the Supreme Court held that:-
151. In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. In Vijai Pratap Singh v. Dukh Haran Nath Singh67 this Court held: (AIR pp. 943-44, para 9) By the express terms of Rule 5 clause (d), the court is concerned to ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defenses which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him.
152. So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars. (See Mohan Rawale63.)
153. In Raptakos Brett & Co. Ltd. v. Ganesh Property the Supreme Court held that:-
Keeping in view this settled legal position, let us see what the plaintiff has alleged in the suit as the basis of its cause of action. This can be culled out on a conjoint reading of all the aforesaid paragraphs of the plaint. Church of North India v. Lavajibhai Ratanjibhai , at page 778 :
The rules of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7 Rule 11 of the Code of Civil Procedure."
16. Reviewing the entire case law on the issue of Order VII Rule 11 and in particular Clause "A" and "D" thereof, the Supreme Court in the case of Sopan Sukhdeo Sable v. Asstt. Charity Commr. held that
10. In Saleem Bhai v. State of Maharashtra1 it was held with reference to Order 7 Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application there under are the averments in the plaint. The trial court can exercise the power at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal2 it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfillled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal3.)
13. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill4 only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
14. In Raptakos Brett & Co. Ltd. v. Ganesh Property5 it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 was applicable.
15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.
In Sopan Sukhdeo Sable v. Asstt. Charity Commr. the Supreme Court held that:-
The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits.
In Sopan Sukhdeo Sable v. Asstt. Charity Commr., the Supreme Court further held that:-
18. As noted supra, Order 7 Rule 11 does not justify rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with "striking out pleadings". It has three clauses permitting the court at any stage of the proceeding to strike out or amend any matter in any pleading i.e. (a) which may be unnecessary, scandalous, frivolous or vexatious, or, (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or, (c) which is otherwise an abuse of the process of the court.
19. Order 6 Rule 2(1) of the Code states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defense, as the case may be, but not the evidence by which they are to be proved.
20. There is distinction between "material facts" and "particulars". The words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between "material facts" and "particulars" was brought by Scott, L.J. in Bruce v. Odhams Press Ltd.6 in the following passage: (All ER p. 294) The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology, and in the new is liable to be 'struck out' under R.S.C. Order 25 Rule 4 (see Philipps v. Philipps7); or 'a further and better statement of claim' may be ordered under Rule 7.
The function of 'particulars' under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial.
The dictum of Scott, L.J. in Bruce case6 has been quoted with approval by this Court in Samant N. Balkrishna v. George Fernandez8 and the distinction between "material facts" and "particulars" was brought out in the following terms: (SCC p. 250, para 29) The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.
Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.
17. It must be reiterated that the Court cannot desist the pleadings into several parts and consider whether each one of them disclose the cause of action. It is well settled that there cannot be a partial rejection of the plaint. It is only when the plaint read as a whole does not disclose any cause of action. Can the same be rejected under Order VII Rule 11 (a)? Rejection of only a particular portion of the plaint is not permissible. This has already been set out above in Sopan Sukhdeo Sable (suprta). The following decision of the Supreme Court also need to be mentioned:-
In Roop Lal Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487, at page 499 : the Supreme Court held that:-
20. The order passed by the High Court directing the striking out of paragraphs 4 to 18 of the election petition can hardly be supported. It is not clear from the order that the High Court proceeded to act under Order 7, Rule 11 (a) or under Order 6, Rule 16 of the Code in passing the order that it did. It is rightly conceded that the High Court could not have acted under Order 7, Rule 11 (a) of the Code. Where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order 7, Rule 11 (a) of the Code, but the rule does not justify the rejection of any particular portion of a plaint: Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 755.
In D. Ramachandran v. R.V. Janakiraman the Supreme Court further held that:-
10. On the other hand, Rule 11 of Order 7 enjoins the court to reject the plaint where it does not disclose a cause of action. There is no question of striking out any portion of the pleading under this Rule. The application filed by the first respondent in OA No. 36 of 1997 is on the footing that the averments in the election petition did not contain the material facts giving rise to a friable issue or disclosing a cause of action. Laying stress upon the provisions of Order 7 Rule 11(a), learned Senior Counsel for the first respondent took us through the entire election petition and submitted that the averments therein do not disclose a cause of action. On a reading of the petition, we do not find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted could void the election and the provisions of Order 7 Rule 11(a) CPC cannot therefore be invoked in this case. There is no merit in the contention that some of the allegations are bereft of material facts and as such do not disclose a cause of action. It is elementary that under Order 7 Rule 11(a) CPC, the court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the Rule, there cannot be a partial rejection of the plaint or petition. See Roop Lal Sathi v. Nachhattar Singh Gill1. We are satisfied that the election petition in this case could not have been rejected in liming without a trial.
18. The above discussion reveals that cause of action refers to a bundle of facts the existence of which entitles one person to obtain from the Court a remedy against the other. It must also be remembered that the pleadings must only contain a statement in a concise forms of material facts on which the party realise for his claim or his defense as the case may be but in the evidence by which they are to be proved. (see Order VI Rule 2(1)]. It is also well settled that the plaint must be read as a whole to ascertain that it discloses a cause of action. The plaint cannot be defective and those portions which do not disclose cause of action cannot alone be rejected. Either the plaint survives in its entirety or is rejected in its entirety. If a defendant states that no relief can be claimed against him on the averments contained in the plaint itself, he cannot ask for rejection of the plaint under Order VII Rule 11 (a) as long as the plaint as a whole discloses a cause of action although against other defendants. Such a defendant can only, propose in both the provisions of Order I Rule 10 for seeking deletion of his name as a party to the suit. Keeping these principles in mind, one has to examine the facts of the present case. As indicated earlier, the case of the plaintiff is three fold. Firstly, the plaintiff claims against the defendants 1 and 2 for the price of the goods on the allegation that the defendants 1 and 2 have taken delivery of the goods and not paid anything for it. Clearly, a cause of action is disclosed. It is another matter that ultimately this may not be sustained. Secondly, the plaintiff has a claim against the Bank (defendant No.3) based upon a separate contract, i.e. The Letter of Credit. The claim against the Bank (defendant No.3), is that it had rejected the documents wrongfully and illegally as a result of which the plaintiff did not receive the payment under the Letter of Credit. This also constitutes a cause of action. Whether it is ultimately proved or not is once again on the defendant. Thirdly, insofar as the defendant No.4 is concerned, the averment is that the defendant No.4 had made a wrongful delivery to the defendant No.1 and that the defendant No.4 ought not to have delivered the goods unless the defendant No.1 had paid for the same. The fact is that the defendant No.4 delivered the goods to the defendant No.1. According to the plaintiff, it was a wrongful delivery. According to the defendant No.4 the plaintiff is not entitle in law to raise such a claim because the facts pleaded are contrary to law. It is the case of the defendant No.4 that Rule 6 of the Second Schedule to the Carrier by Air Act, 1972 makes it clear that the Gulf Air (defendant No.4) is only required to notify the consignment and to deliver the goods (cargo) to the consignee along with a consignee's copy of the Airway Bill. There was no question that "the consignee's copy of the Airway Bill could not have been presented to the said defendants as the said documents were returned by the defendant No.3 to the plaintiff through the defendant No.6." What has actually happened and would would be its effect in law would be a subject matter of trial. At this stage, the plaintiff has alleged that the defendant No.4 made a wrongful delivery to the defendant No.1. Whether this would stand the test of evidence or law is to be seen at the conclusion of the trial and not at this stage. In any event, assuming that the plaint does not disclose any cause of action against the defendant No.4, the plaint still cannot be rejected inasmuch as it does disclose a cause of action insofar as the defendants 1, 2 and 3 are concerned. Piecemeal rejection of the plaint is not permissible. If what the defendant No.4 has prayed for is existed to, it would amount to rejecting the portions of the plaint which cannot be done in view of the settled position of law. Therefore, the plaint cannot be rejected as prayed for by the defendant No.4. In the averment that I have taken, it is not necessary for me to examine the effect of the rejection of the earlier Order VII Rule 11 application by the Court at Ludhiana.
Whether the suit as against the Defendant No.4 is not maintainable as being time barred.:-
19. According to Mr Wadhwani, the learned counsel appearing for defendant No.4, the Airway Bill which is the subject matter of the present suit is dated 14.12.1992. Although, no date of delivery of the cargo to the defendant No.1 is indicated, both the parties agree that for the purposes of deciding this question of limitation, 31.12.1992 may be taken as the date of delivery. So, if 31.12.1992 is taken as a date of delivery of the cargo by defendant No.4 to defendant No.1 the starting point of limitation would be from 1.1.1993. The suit at Ludhiana was filed on 1.10.1993 exactly ten months after the starting point of limitation. Mr Wadhwani submits that there is no difficulty in submitting that if the Court at Ludhiana has territorial jurisdiction, the suit has been filed in time. He refer to Rule 30 of Schedule II of the Carriage by Air Act, 1972 and the same reads as under:-
30. (1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.
2. The method of calculating the period of limitation shall be determined by the law of the Court seized of the case.
He submitted with reference to the aforesaid Rule that the period of limitation is two years from the date of arrival at destination which we have taken as 31.12.1992. He submitted that the present suit was filed before this Court on 30.10.2000 and, therefore, the same was beyond time. Accordingly, the plaint is liable to be rejected under Clause (d) of Order VII Rule 11 which provides that the plaint shall be rejected "where the suit appears from the statement in the plaint to be barred by any law." It is the contention of Mr Wadhwani that it is not merely a case of limitation or a simple but that in view of the special provisions of Rule 30 of Schedule II to the Carriage by Air Act, 1972 if an action is not brought within two years then the right to damages itself creates extinguished. It was urged by Mr Wadhwani that the suit filed at Ludhiana was within time but in the wrong Court and that when it was filed in the right Court (this Court) upon return of the plaint, it was not within time. He further submitted that the present suit is not a continuation of the suit filed by the Plaintiff at Ludhiana. He further submitted that while the plaintiff has not filed any application under Section 14 of the Limitation Act, 1963 for exclusion of the time spent before the Court at Ludhiana, Section 14 of the Limitation Act would have no application to the present case in view of the provisions of Section 29(2) of the very same Act which reads as under:-
29(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
20. Mr Mehta, the learned counsel for the plaintiff submitted that assuming that the cause of action arose on 31.12.1992, the suit at Ludhiana was filed on 1.10.1993, i.e. within ten months. The plaint was returned by the Court at Ludhiana on 12.10.2000 and the very same plaint was filed before this Court on 30.10.2000. Therefore, if the period during which the plaint was before the Court at Ludhiana has excluded the suit has been filed within ten months and eighteen days of the cause of action having arisen. Therefore, the suit is not barred by limitation. He submitted that the question that as the plaintiff has not made any averment with regard to exclusion of time under Section 14 of the Limitation Act, 1963 and that therefore, Section 14 would not be applicable, is not tenable. He further submitted that all the facts known to the defendants as the suit was contested in Ludhiana then in the High Court of Punjaba and Haryana and, therefore, no specific pleadings would be necessary as the factum of the pendency of the plaint before the Court at Ludhiana till its return on 12.10.2000 would appear from the face of the record. He placed reliance on the decision reported in Sukhbir Singh v. Piare Lal AIR 1923 Lahore 591 at page 592. He also relied upon the decisions on the following two decisions: Parameswaraan v. N. Ramachandran and Administrator General, West Bengal v. Subodh Gopal Basu and Ors. 1974 CWN 23 (paragraph 12 and 13). He submitted that the endorsement on the plaint itself made it very clear that the plaint was instituted in Ludhiana on 1.10.1993 and returned on 12.10.2000. The plaint in the present suit is the same plaint as filed in Ludhiana and, therefore, there is no necessity of making a specific pleadings with regard to this inasmuch as the same appear on the face of the record and was well known to the defendant No.4. He further contended that the question of limitation is itself a contentious issue, at least in the facts of the present case and, therefore, cannot found the subject matter of the application under Order VII Rule 11. For this proposition, he relied upon a judgment of the Division Bench of the Calcutta High Court in British Airways v. Art Works Export Ltd. And Anr. . He further submitted that even Rule 30 (1) of the Schedule II to the Carriage by Air Act, 1973 would not apply as the present case is one of wrongful delivery and not of damages. The said Rule 30 deals only with the case of damages. He relied for this proposition on Vij Sales Corporation v. Lufthansa, German Airlines 2nd (1981) II Delhi 749 and in particular paragraphs 8 to 11, 13 and 18 to 20 thereof to show that loss and damage do not necessarily mean non-delivery. He also relied upon the decision in the case of Federal Chemical Works Ltd. v. Nutsco (Nigeria) Ltd. and Anr. 88 (2000) DLT 659 and in particular paragraphs 4, 9 and 11. In this case, it has been held that the Limitation Act would apply. Finally, he referred to a Division Bench decision of this Court in Ethopian Airlines v. Federal Chemical Works Ltd. and in particular he referred to paragraph 13 thereof which reads as under:-
13, The concept of loss or damage suffered by any account by the shipper or consignee, is not the same as the loss and damage referable to the goods. We are relying upon the judgment of Viz Sales Corporation v. Lufthansa, German Airlines' case (supra) and approve the reasoning of the learned Single Judge. In paragraph 18 of the East and West Steamship Co. v. S.K. Ramalingam Chettiar's case (supra) the Supreme Court took note that paragraph 8 spoke of loss or damage to or in connection with the goods but the Legislature in 6th paragraph of the Article left the words 'loss or damage' unqualified. Had, therefore, words 'to or in connection with the goods' been incorporated in paragraph 6 as well as after the words 'loss or damage', the Supreme Court would not have treated the same as unqualified, which, was so in their absence.
The Division Bench also held with reference to Rule 30 that "once the Legislature in its own wisdom has left the field regarding limitation to be determined by lex fori, that is the law of the Courts then relying on Rule 30(1) and to import that the law of limitation would be two years, would be making the Sub-rule (2) of Rule 30 redundant.
21. Considering all the arguments and the decisions referred to by the learned counsel, it has to be determined as to whether the present suit is beyond time insofar as defendant No.4 is concerned. Secondly, if it is so what is its legal effect? Taking up the first question, it is no doubt true that this suit instituted in this Court upon return of the plaint which had earlier instituted in the wrong Court, i.e. The Court at Ludhiana, cannot be recorded as a contention at the Ludhiana Court. This is clear from the decision of the Supreme Court in Amar Chand Inani v. Union of India wherein it held that:
It was, however, argued by Counsel for the appellant that the suit instituted in the trial court by the presentation of the plaint after it was returned for presentation to the proper Court was a continuation of the suit filed in the Karnal Court and, therefore, the suit filed in Karnal Court must be deemed to have been filed in the trial court; We think there is no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words, the suit instituted in the trial court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court (see the decisions in Harachand Succaram Gandhy v. G.I.P. Rly. Co.2 Bimla Prasad Mukerji v. Lal Moni Devi3 and Ram Kishun v. Ashirbad.4
22. Therefore, to suggest that since the suit had been filed at Ludhiana within time, ifso facto, the present suit would be in time, would not be the correct position in law. But this does not mean that the present suit is beyond time. The question that has to be examined is whether the exclusion of time under Section 14 would be available to the plaintiff. Mr Wadhwani has submitted that since the plea of Section 14 was not taken in the plaint, it would not be available to the plaintiff. I am unable to agree with this submission in view of the fact that all the necessary details and particulars are available on the face of the record and were also known to the defendant No.4. The fact that the plaint had been filed at Ludhiana on 1.10.1993 and that it was returned by the Court at Ludhiana on 12.10.2000 appears on the plaint itself. These facts were known to the defendant No.4 also. Therefore, the contention of the learned counsel for defendant No.4 in this regard is not made out. Mr Wadhwani next contended that in view of Section 29(2) of the Limitation Act, the special law of the Carriage by Air Act, would prevail over and the provisions contained in Section 4 to 24 would not apply. Reliance placed by him on judgments on Section 29(2) of the Limitation Act, 1963 being Union of India v. Popular Construction: is not act properly. His submission is that Section 14 falls within the group of Sections 4 to 24 specified in Section 29(2) of the Limitation Act, 1963 and these Sections are to apply only insofar as and to the extent to which they are not expressly excluded by the special law. He submitted that Rule 30(1) of Schedule II to the Carriage by Air Act, 1972, clearly stated that the right to damages would stand extinguished if an action is not brought within two years. According to Mr Wadhwani, this provision was a substantive provision and for this proposition, he relied upon the decision in Bharat Barrel and Drum Mfg. Co. Private Ltd. and Anr. v. The Employees' Estate Insurance Corporation. and in particular paragraphs 5 and 6 and it would operate to the exclusion of the aforesaid Sections 4 to 24. I am unable to agree with the submission of Mr Wadhwani. First of all, because of the decision of the Division Bench of this Court in the case of Ethiopian Airlines (supra). Secondly, Sub-rule (2) of Rule 30 of the Second Schedule to the Carriage by Air Act, 1972 itself provides:
(2) The method of calculating the period of limitation shall be determined by the law of the Court seized of the case.
Thus, far from the Carriage by Air Act, 1972 excluding the applicability of the provisions contained in Section 4 to 24 of the Limitation Act, 1963, it specifically provides that the method of calculating the period of limitation shall be determined by the law of the Court seized of the case. It is interesting to note that Part 3 of the Limitation Act, 1963 comprises of Sections 12 to 24. This Part (i.e. Part 3) bears heading "Computation of Period of Limitation". Computation of period of limitation, to my mind means the same thing as the expression "method of calculating the period of limitation which appears in Rule 30(2) of Schedule II to the Carriage by Air Act, 1972." Therefore, the provisions of Sections 12 to 24 are specifically included by virtue of Rule 30(2). That being the case, Section 14 would be applicable. Section 14 deals with Exclusion of time of proceeding bona fide in court without jurisdiction. Sub-section (1) of Section 14 reads as under:-
14. Exclusion of time of proceeding bona fide in court without jurisdiction.-
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
24. The fact that Section 14 applies in the present case does not ifso facto leads the conclusion that insofar as the claim against the defendant No.4 is concerned, the claim is within time. The plaintiff will have to establish that it was prosecuting the plaint at Ludhiana with "due diligence" and "in good faith". These are questions of facts which have to be determined upon leading evidence.
25. At this stage, it is not possible to give a final determination on the question of Limitation insofar as the claim against defendant No.4 is concerned. Moreover, even if it were to be held that the claim against defendant No.4 is beyond time the plaint as such could not have been rejected as piecemeal rejection of the plaint is not permissible. This has already been discussed in detail above. Therefore, whichever way one looks at the problem, I would tend to agree with the submission made by Mr Mehta that in the circumstances of the present case the question of limitation is itself a contentious issue and it would not be proper to deal with the same at the stage of consideration of the application under Order VII Rule 11 particularly when evidence has to be led with regard to whether the plaintiff prosecuted the earlier suit with due diligence and in good faith. Therefore, the plaint cannot be rejected on this ground also.
26. The result of the discussion is that the defendant No. 4's application under Order VII Rule 11 stands dismissed.