ORDER
A.K. Srivastava, J. (Chairman)
1. This appeal has been filed by one Shri Rajiv Aggarwal, who is defendant No. 7, in O. A. No. 517/96, Union Bank of India v. Maxo Laboratories Pvt. Ltd. and Ors. pending in DRT-I, Delhi against order dated 1.5.2001 passed by the learned Presiding Officer of the concerned DRT on two applications moved by the appellant–one under Order VII Rule 11 of Code of Civil Procedure and the other under Section 10, CPC.
2. Heard learned Counsels for the parties.
3. By application under Order VII Rule 11, the appellant prayed before the concerned Tribunal that the suit be dismissed against him, as the same was time-barred as he had already revoked the guarantee on 26.4.1991 whereas the suit was filed on 10.5.1996 i.e. beyond a period of three years. Learned Presiding Officer has, in the impugned order, come to an opinion that the contended point required evidence and could not be decided at a stage prior to giving of the evidence by the parties. He, accordingly, directed that the point of limitation would be decided at a stage after the full-fledged trial takes place. He, accordingly, dismissed the application at that stage.
4. Learned Counsel for the appellant fairly concedes that a written statement has been filed by defendant No. 7 in the said O.A. and defendant No. 7 has taken a plea of limitation on facts. I have considered the respective arguments advanced by learned Counsel for the appellant and learned Counsel for the respondent Bank. I am of the view that since the question of limitation raised by the appellant is a mixed question of fact and law, the learned Presiding Officer of the Tribunal below was justified in not deciding that question before evidence had been led by the parties. Therefore. I do not find any error in the impugned order relating to appellant’s application under Order VII Rule 11. Moreover, provisions of Order VII Rule 11 can be invoked only where the suit appears from the statement in the plaint to be barred by any law. In the instant case the appellant did not take the plea that the O.A. was
barred by law of limitation on the basis of what appeared in the O.A. Rather the plea of limitation was taken on the basis of defence only. Therefore, the provisions akin to Order VII Rule 11 are not attracted in the matter in hand.
5. After the entire evidence is led by the parties, the appellant may request the Tribunal below for deciding the plea of limitation as a preliminary issue. But it will be the discretion of the learned Presiding Officer to decide it as preliminary issue or to decide the issue of limitation in the final order passed under Section 19 of the Act.
6. The second part of the order impugned is on application of the appellant under Section 10 of CPC. By that application, the appellant prayed that proceedings in O.A. No. 517/96 be stayed till the disposal of the suit filed by him against the respondent Bank. Learned Presiding Officer of the Tribunal below came to an opinion that the parties in the suit are not the same as are in the said O.A. and, therefore, the proceedings in O.A. cannot be stayed. He further opined that the proceedings in the O,A. could not be indefinitely stayed till the disposal of the suit filed by the appellant against the respondent Bank. He, however, found it appropriate that both the cases be decided together. Accordingly, he disposed of the aforesaid application.
7. Learned Counsel for the appellant submitted that after the aforesaid O.A. was filed by the respondent Bank, Hon’ble the Delhi High Court transferred the suit for declaration filed by the appellant against the respondent Bank to the Debts Recovery Tribunal, Delhi for adjudication. He admits that both the suits are pending before the same DRT and proceedings are taking place. He, however, contends that the suit filed by the appellant against the respondent Bank for declaration that the guarantee given by him stood discharged, cannot be tried by the Debts Recovery Tribunal. On being asked, whether the appellant has raised any such objection before the Tribunal that the Tribunal has no jurisdiction to decide the suit filed by the appellant against the respondent Bank, learned Counsel for the appellant informed that no such plea had been taken by the appellant before the Tribunal. He, however, admits that a written statement has been filed by the appellant in the aforesaid O.A. No. 517/ 96 and in that written statement, a pica has been taken that the appellant stood discharged from the guarantee as he had revoked the guarantee on 26.4.1991. Therefore, the plea taken by the appellant in the suit against the respondent Bank has already been taken by the appellant in his written statement in the aforesaid O.A and the suit filed by the appellant against the respondent Bank is going to be decided together as has been observed in the impugned order.
8. I do not find any error in the impugned order. Rather on the facts stated, the two above mentioned cases should be decided together without staying proceedings of each other.
9. With the aforesaid observations, I do not find any merit in the appeal and the same is
dismissed. Costs easy.
