- 1 - NC: 2025:KHC:5223 CRP No. 547 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R DEVDAS CIVIL REVISION PETITION NO. 547 OF 2023 BETWEEN: 1. SMT. VENKATALAKSHMAMMI D/O LATE SRI KONDAPPA AGED 77 YERS 2. SRI S K ANJINAPPA S/O LATE SRI KONDAPPA AGED 69 YEARS 3. SRI S K KIRAN KUMAR S/O LATE SRI KONDAPPA AGED ABOUT 52 YEARS 4. SRI S K MANJUNATH S/O LATE KONDAPPA AGED ABOUT 49 YEARS PETITIONERS 1 TO 4 ARE R/AT VIDYANAGAR CROSS BETTAHALSUR POST CHIKKAJALA HOBLI BENALURU NORTH TALUK BENGALURU 562157 …PETITIONERS (BY SMT. SUSHEELA., SR. COUNSEL FOR SRI. K ABHINAV ANAND., ADVOCATE) Digitally signed by DHARMALINGAM Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:5223 CRP No. 547 of 2023 AND: 1. SMT. K.S. NIRMALA W/O B P MAHESH AGED 52 YEARS 2. SRI YASHASH B M S/O SRI B P MAHESH AGED 27 YEARS RESPONDENTS 1 & 2 R/AT NO.810 14TH A MAIN, 13TH CROSS A SECTOR, YELAHANKA NEW TOWN YELAHANKA, BENGALURU 560064 …RESPONDENTS (BY SRI. GURUDAS S KANNUR., SR. COUNSEL FOR SRI. PRASANNA KUMAR P., ADVOCATE) THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 13.06.2023 PASSED ON I.A.NO.3 IN O.S.NO.1235/2022 ON THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE I.A.NO.3 FILED UNDER ORDER VII RULE 11(d) R/W SEC.151 OF CPC FOR REJECTION OF PLAINT AND ETC. THIS PETITION, COMING ON FOR ORERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:5223 CRP No. 547 of 2023 CORAM: HON'BLE MR JUSTICE R DEVDAS ORAL ORDER The petitioners are defendants No.2 to 5 in O.S.No.1235/2022 on the file of the XII Addl. City Civil & Sessions Judge at Bengaluru. Being aggrieved of the rejection of their application filed in I.A.No.3 under Order VII Rule 11(d) of Code of Civil Procedure, the defendants are before this Court. 2. Learned Senior Counsel Smt.Susheela, appearing for the defendants submits that the claim of the plaintiffs arise from an agreement of sale dated 21.06.2017 and the suit is filed for recovery of Rs.1,38,00,000/- paid towards advance in the said agreement of sale, along with interest for the delayed period. It is submitted that even in terms of the agreement where time is the essence of contract, the plaintiffs were at liberty to sue the defendants for specific performance of the contract and also seek refund of the advance amount paid along with interest of 18% per - 4 - NC: 2025:KHC:5223 CRP No. 547 of 2023 annum. It is therefore contended that time began to run for the plaintiffs from 21.06.2017 itself. It is therefore clear from the averments of the plaint that the suit is hopelessly time barred. Learned Senior Counsel submits that even if it is found from the plaint that the plaintiffs had issued a legal notice on 08.10.2020 calling upon the defendants to repay the money and reply was given by the contesting defendants on 22.10.2020 clearly stating that they will not be able to refund the amount, cause of action arose for the plaintiffs in terms of the provisions of the agreement and therefore the application filed by the defendants for rejection of the plaint could not have been dismissed. It is submitted that the trial court erred in accepting the contention of the plaintiffs that plaintiffs had earlier approached the Commercial Court and a Pre- Institution Mediation was filed on 22.12.2020, nevertheless the said proceedings were closed on 22.01.2021 itself. However, the suit is filed more than a year after the said order of closure of the PIM at the hands of the Commercial Court. The suit was filed on 17.02.2022 - 5 - NC: 2025:KHC:5223 CRP No. 547 of 2023 and therefore it is quiet evident from the averments in the plaint itself that the suit is time barred. In this regard, the learned Senior Counsel points out a decision of the Hon’ble Supreme Court in the case of SHRI MUKUND BHAVAN TRUST AND ORS. /VS./ SHRIMANT CHHATRAPATI UDAYAN RAJE PRATAPSINH MAHARAJ BHONSLE AND ANOTHER in Civil Appeal No.14807/2024 dated 20.12.2024, where it is held that in cases 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. 3. Per contra, learned Senior Counsel Sri G.S.Kannur, appearing for the plaintiffs submits that the trial court has rightly considered the contentions raised by the defendants and has held that the question of limitation is a mixed question of law and fact and having regard to the chronological events and the fact that legal notice was issued by the plaintiffs on 08.10.2020 and the reply is - 6 - NC: 2025:KHC:5223 CRP No. 547 of 2023 given by the contesting defendants on 22.10.2020 where certain statements have been made by both the parties which are required to be considered only after evidence is led by the parties. The trial court has also held that the trial court cannot ignore the fact that the plaintiffs had earlier approached the Commercial Court by mistaken notion and the said Pre-Institution Mediation was filed before the Commercial Court on 22.12.2020 and the proceedings were closed on 22.01.2021. Here again the trial court is of the opinion that it is permissible for the plaintiffs to explain to the court the time taken to file the suit, with reference to the provisions of the Limitation Act which may come to the aid of the plaintiffs. Such question of limitation are required to be considered only after evidence is looked into. Learned Senior Counsel would also point out to the very same decision cited by the learned Senior Counsel appearing for the defendants in the case of SHRI MUKUND BHAVAN TRUST AND ORS. (supra), where it is held that the Apex Court is not unmindful of the position of law that limitation is a mixed - 7 - NC: 2025:KHC:5223 CRP No. 547 of 2023 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. Moreover, it is only in glaring cases where the suit is hopelessly barred by limitation, the court should not hesitate to reject the plaint. However, in the facts and circumstances of this case, even though delay is sought to be pointed out by the defendants it is only a few days which can be easily explained by the defendants. 4. Having heard the learned Senior Counsels on both sides and perusing the petition papers, this Court finds that the trial court has furnished sufficient reason for upholding the impugned order. The time gap even if it is sought to be made out is not so glaring that it is obvious that the suit is hopelessly time barred. Therefore, if the trail court has come to a conclusion that unless the parties are permitted to lead evidence, the trial court will not be able to come to a conclusion at this juncture the suit is hopelessly time barred, no infirmity can be found. Nevertheless, the trial court has left all the question - 8 - NC: 2025:KHC:5223 CRP No. 547 of 2023 regarding limitation open for arguments. As rightly pointed out by the learned Senior Counsel for the petitioners if at all any statement is found in the impugned order accepting the contentions of the plaintiffs regarding the question of limitation, the same shall not be considered at the time of the disposal of the suit on merits and regarding question of limitation, all contentions shall be kept open. 5. Accordingly, the Civil Revision Petition stands dismissed. Sd/- (R DEVDAS) JUDGE KLY CT: JL