1 2025:CGHC:23098 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 131 of 2025 1 - Salasar Balaji Foods Through Proprietor - Vinay Agrawal S/o. Late Shri Mahavir Prasad Agrawal, Aged About 51 Years, R/o Bhalesar Road, Near Shamshan Ghat, Mahasamund, Tehsil And District Mahasamund (C.G.) (Baalesar Wrongly Mention In Impugned Order.) (Age Not Mentioned In Impugned Order) ... Applicant versus 1 - Chandreshekhar Kastvaar And Sons (H.U.F.) Through Karta Chandrashekhar Kastvaar S/o. Late Shri Kapoorchand Ji Kastvaar, Aged About 62 Years, R/o. Odyogik Ward, Dhamtari, Tehsil And District Dhamtari (C.G.) ... Respondent For Applicant : Shri Shubhank Tiwari, Advocate For Respondent : None Hon’ble Shri Justice Amitendra Kishore Prasad Order on Board 11/06/2025 1. Learned counsel appearing for the applicant submits that while deciding the application under Order 7 Rule 11 CPC the Trial Court though has stated that the point of limitation for which application has been filed is a mixed question of fact and law, however, in the last paragraph of the order it has been stated that looking to the judgment which has been Digitally signed by GOPAL SINGH Date: 2025.06.16 18:01:56 +0530 2 cited and the arguments advanced by the parties, it was held that the suit is within limitation which is erroneous. 2. Before considering the aforesaid aspect of the matter, I have considered the arguments advanced in the plaint as well as in the written statement. 3. According to the plaintiff’s case, the Plaintiff/Respondent has filed a civil suit for recovery of amount to the tune of Rs. 26,92,333/- from the Applicant/Defendant. It was stated that the Defendant has taken loan from Plaintiff amounting to Rs. 25,00,000/- for his family business on 04.03.2019 and in pursuant thereto he has executed a Hundi. For refund of the said amount, the Applicant/Defendant has given his cheque bearing No. 000805, dated 30.06.2019 which was maintained in HDFC Bank, Mahasamund (C.G.). The said cheque was deposited by Plaintiff/Respondent on 02.07.2019 which was subsequently got dishonored due to insufficient balance. A notice was also issued by the Plaintiff/Respondent for demand of amount and information regarding dishonoring of the cheque, but, due to assurance and request made by the Applicant/Defendant, no such legal action was taken by the Plaintiff/Respondent. Further case of the Plaintiff is that the Defendant showed his inability in the year 2020-2021 to refund the amount due to Covid-19 for which the Plaintiff also did not take any heed. On 07.12.2022, the Applicant/Defendant himself has deposited Rs.2,00,000/- in 3 the account of Respondent/Plaintiff through RTGS. It was further stated that till 19.01.2023, the Plaintiff is entitled for Rs. 26,92,333/- and for that purpose the Plaintiff has also sent legal notice on 04.03.2023 and again notice was sent on 08.05.2023 as in earlier notice there was some error and till date no such amount was refunded by the Applicant/Defendant. Since the cause of action arose in favour of the Plaintiff and hence he has filed the civil suit for recovery of the amount Rs.26,92,333/- along with interest before the jurisdictional Civil Court. 4. Upon notice, the defendant has filed its written statement. While denying the averments of the plaint, it was specifically submitted that the suit is barred by limitation and as such the suit is required to be dismissed on the ground of limitation itself. However, the defendant has moved an application under Order 7 Rule 11 CPC raising plea of limitation stating that the suit is barred by limitation, as such it cannot be entertained and it is required to be dismissed at the threshold. The concerned Trial Court rejected the application filed under Order 7 Rule 11 CPC holding that from perusal of the averments of the plaint, it does not seem that the suit is barred by limitation. Further, the question of limitation is a mixed question of fact and law which can only be decided during the course of trial. While relying upon the judgment in the matter of Cryogas Equipment Private Limited v. Inox India Limited and others, decided on 15.4.2025, the 4 Hon’ble Supreme Court has also held that the question of limitation is a mixed question of fact and law. However, in the subsequent lines, the suit was declared to be within limitation. So far as law relating to deciding application under Order 7 Rule 11 CPC is concerned, it is well established law that for deciding application under Order 7 Rule 11 CPC only plaint averments are required to be seen. The grounds raised in the written statement cannot be taken into consideration. The Hon’ble Supreme Court in the matter of Swadesh Kumar Agarwal v. Dinesh Kumar Agarwal and others, (2022) 10 SCC 235 has held that as per the settled position of law, at the stage of deciding the application under Order 7 Rule 11 CPC only the averments and allegations in the application/plaint are to be considered and not the written statement and/or reply to the application and/or the defence. Therefore, as such the learned trial court rightly dismissed the application under Order 7 Rule 11 CPC. The Hon’ble Supreme Court in the matter of Ramesh D. Desai V. Bipin Vadilal Mehta and others, reported in (2006) 5 SCC 638, while dealing with the issue of limitation, opined that “A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which entirely question of fact”. And hence, by not allowing the parties to lead evidence on the issue of limitation and deciding the issue of limitation finally under the application filed under Order 7 Rule 11 CPC is illegal and the same is liable to be rejected and the Trial Court 5 be directed to frame the issue of limitation and decide the same along with other issues after full-fledged trial. 5. In the matter of Shri Mukund Bhavan Trust and others v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another, 2024 SCC OnLine SC 3844, the Hon’ble Supreme Court has held as under: “26. At this juncture, we wish to observe that we are not unmindful of the position of law that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record. However, in cases like this, where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the Courts should not be hesitant in granting the relief and drive the parties back to the trial Court. We again place it on record that this is not a case where any forgery or fabrication is committed which had recently come to the knowledge of the plaintiff. Rather, the plaintiff and his predecessors did not take any steps to assert their title and rights in time. The alleged cause of action is also found to be creation of fiction. However, the trial Court erroneously dismissed the application filed by the appellants under Order VII Rule 11(d) of CPC. The High Court also erred in affirming the same, keeping the question of limitation open to be considered by the trial Court after considering the evidence along with other issues, without deciding the core issue on the basis of the averments made by the Respondent No.1 in the Plaint as mandated by Order VII Rule 11 (d) of CPC. The spirit and intention of Order VII Rule 11(d) of CPC is only for the Courts to nip at its bud when any litigation ex facie appears to be a clear abuse of process. The Courts by being reluctant only cause more harm to the defendants by forcing them to undergo the 6 ordeal of leading evidence. Therefore, we hold that the plaint is liable to be rejected at the threshold.” 6. Considering the aforesaid aspect of the matter, when the case in hand is examined, it is apparent that question of limitation is to be decided, but, to examine the same, it is trite law that for deciding the application under Order 7 Rule 11 CPC, only the plaint averments are required to be seen and objection whatever may be in the written statement, in the application under Order 7 Rule 11 CPC it will not be considered. So far as the question of limitation is concerned, it is a mixed question of law and facts and, therefore, too it cannot be decided in the application under Order 7 Rule 11 CPC. The Trial Court has committed an apparent mistake while holding the suit to be within limitation while deciding the application under Order 7 Rule 11 CPC. 7. Accordingly, the impugned order, so far as it relates to holding the suit to be within limitation, is hereby set aside. The Trial Court is directed to frame issue in respect of limitation and to decide it in accordance with law. 8. With the aforesaid observation and direction, the revision is disposed of. Sd/- (Amitendra Kishore Prasad) JUDGE Gopal Singh