2025:HHC:42400 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA OMP Nos. 684 & 1143 of 2024 in Civil Suit No. 76 of 2015 Reserved on: 24.11.2025 Date of decision: 09.12.2025. The Bilaspur Distt. Truck Operator Transport Society Ltd. ...Plaintiff Versus Naresh Kumar & Company Pvt. Ltd. & others ...Defendants Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1Yes. For the plaintiff: Mr. Surinder Saklani, Advocate, for non-applicant/plaintiff. For the defendant: Ms. Devyani Sharma, Sr. Advocate with Mr. Surya Chauhan Advocate, for applicant/defendants No. 1 and 2. Mr. Vishal Mohan Sr. Advocate, with Mr. Kulwant Chauhan, Advocate, for applicant/defendant No.3 in OMP No. 1143 of 2024. Satyen Vaidya, Judge: Both these applications were heard and are being decided together as common questions of facts and law are involved. 2. Civil Suit No. 76 of 2015 has been filed by The Bilaspur District Truck Operators Co-operative Transport 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- Society Ltd. Barmana, District Bilaspur, H.P. (for short the ‘Plaintiff’) against defendant Naresh Kumar & Co. Pvt. Ltd. (for short ‘Defendants No. 1 and 2) and ACC Ltd. Gaggal Cement Works Barmana, District Bilaspur, H.P. (for short ‘Defendant No.3’). The relief prayed in the suit is for recovery of a sum of Rs. 1,17,69,566/- along with pendent- lite and future interest at the rate of 9% per annum. The suit amount consists of alleged arrears of hike in transportation charges of coal from the premises of defendants No. 1 and 2 at Kiratpur to the premises of defendant No.3 at Barmana, District Bilaspur. The arrears have been claimed to the tune of Rs. 28,32,910/- for the period 1.4.2011 to 25.6.2011 at the rate of 14.70% over and above the existing rate. Similarly, arrears to the tune of Rs. 61,60,120/- have been claimed for the period 1.4.2012 to 13.9.2012 at the rate of 4.47% over and above the existing freight charges. 3. The plaintiff has averred in the plaint that it is a Cooperative Society, registered under the Himachal Pradesh Co-operative Societies Act. On 1.4.2011, defendant No.3 had appointed the plaintiff as its -3- authorized road transporter for transportation of cement from Gaggal Cement Works Barmana to different destinations. An agreement in this regard is stated to have been executed on 1.4.2011 for the period of five years ending with 31.3.2016. The freight rates for transportation of cement undertaken by the plaintiff are claimed to be paid directly by defendant No.3 to the plaintiff. 4. The plaintiff has also alleged that on the same day i.e. 1.4.2011, a Memorandum of Settlement was entered between defendant No.3 and the plaintiff for revision of freight rates. Accordingly, the freight rates were mutually agreed to be enhanced w.e.f. 1.4.2011 by 14.70%. It is also the case of the plaintiff that as per memorandum of settlement dated 1.4.2011; the plaintiff was to deploy trucks for bringing raw materials to the premises of ACC at Barmana and the raw materials including coal and fly ash. In view thereof, defendant No.3 was to provide commensurate demand carriage of cement to the plaintiff. 5. It has further been averred that one of the destinations provided to the plaintiff for transportation of cement from Barmana was Kiratpur in Punjab. The trucks -4- of the plaintiff transporting cement to Kiratpur on their return journey to Barmana would carry coal in terms of the contract entered into between defendant No.3 and the plaintiff. Defendants No. 1 and 2 are stated to be the supplier of coal from Kiratpur. It has further been stated that for the coal carriage from Kiratpur to Barmana by the trucks belonging to the plaintiff, freight rates were paid by defendant No.3 to defendants No. 1 and 2 and later, defendants No. 1 and 2 disbursed the said payment to the plaintiff. 6. In the aforesaid backdrop, claim has been presented by the plaintiff by way of the instant suit. The plaintiff has further asserted that it had made the claim of the suit amount from defendants No.1 and 2 through communications dated 4.9.2014, 11.9.2014 and 22.9.2014 but the said defendants are stated to have denied the claim of the plaintiff on the premise that the enhancement of freight rates agreed between the plaintiff and defendant No.3 would not bind defendants No. 1 and 2 unless the same was communicated to defendants No. 1 and 2. -5- 7. OMP No. 684 of 2024 has been filed by defendants No. 1 and 2 under Order 7 Rule 11 of the Code of Civil Procedure (for short the ‘Code’) with a prayer to reject the plaint on the grounds firstly that the plaintiff had no cause action to file the suit against defendants No. 1 and 2 and secondly, the suit was barred by limitation. It is alleged in the application that the suit amount has been claimed by the plaintiff on the basis of decision taken in the meeting held between the plaintiff and defendant No.3 to which, defendants No. 1 and 2 were not party. Since the plaintiff did not have any privity of contract with defendants No. 1 and 2, no cause of action to file the suit had arisen against them. 8. Defendants No. 1 and 2 have further stated that the plaintiff has made a claim for recovery of amount on account of arrears for the period 1.4.2011 to 25.6.2011 and 1.4.2012 to 13.9.2012, whereas it should have been from 1.4.2011 to 24.6.2011 and 1.4.2012 to 12.9.2012 because the plaintiff has admitted to have received revised freight rate charges from 26.6.2011 and 13.9.2012. The -6- suit which has been filed on 14.9.2015 is thus stated to be barred by law of limitation. 9. OMP No. 1143 of 2024 has been filed by defendant No.3. The said defendant has also sought rejection of the plaint under Order 7 Rule 11 of the Code. The grounds again are lack of cause of action and limitation. 10. As regards limitation, same objection has been raised by defendant No.3, as taken by defendants No. 1 and 2. In respect of cause of action, it has been submitted that the plaintiff has not disputed receipt of freight charges from defendant No.3 on agreed enhanced rates for carriage of cement. The claim of the plaintiff in that respect is against defendants No. 1 and 2, who is the supplier of coal and from whose premises the coal has allegedly been transported by the plaintiff to the works of defendant No.3 at Barmana. On these assertions, it has been claimed that defendant No.3 has been impleaded unnecessarily and no cause of action existed in favour of the plaintiff for filing the suit against the said defendant. -7- 11. The plaintiff has filed separate replies to both these applications and has reiterated its stand, as taken in the plaint. 12. I have heard learned counsel for the parties and have also gone through the record carefully. 13. The rejection of plaint has been sought by both the sets of defendants by invoking the provisions of Order 7 Rule 11 (a) and (d) of the Code. In the first case, the provisions of Rule 11 Order 7 mandate the rejection of plaint where it does not disclose a cause of action and in the second case where the suit appears from the statement in the plaint to be barred by any law. 14. It is more than settled that for adjudicating whether plaint is liable to be rejected under Order 7 Rule 11 (a) and (d) of the Code what is required to be looked into by the Court is the contents of the plaint and the documents relied upon by the plaintiff. Neither the defence raised by the defendants nor any other material can be taken into consideration at such stage. It is also settled principles of law that the cause of action should be made out from meaningful reading of the contents of entire plaint -8- and the plaintiff cannot be allowed to camouflage the cause of action by way of clever and crafty pleadings. 15. The contents of plaint in the instant case have to be considered keeping in view the aforesaid principles. The case of the plaintiff as understood from the meaningful reading of the contents of plaint is that the plaintiff had been appointed as an authorized transporter by defendant No.3 for a period of five years w.e.f. 1.4.2011 to 31.3.2016 to transport its product i.e. cement from Gaggal works at Barmana, District Bilaspur to different destinations in the State of Himachal Pradesh, J&K, Punjab, Haryana and Delhi. Obviously, the transportation contract granted to the plaintiff by defendant No.3 was on agreed freight rate charges. A memorandum of understanding was executed with defendant No.3 on 1.4.2011 and it was agreed that for the period 1.4.2011 to 31.3.2012, the freight rate would increase by 14.70% over and above the previously existing rates. To similar extent, is an understanding alleged to have been arrived between the plaintiff and defendant No.3 for the period 1.4.2012 to 31.3.2013 and during this -9- period, the rate was stated to have been increased by 14.70%. 16. The plaintiff admittedly has made no claim in the suit against defendant No.3 for any arrears of freight charges of the cement carriage. The suit amount relates to the arrears of enhanced freight charges for carriage of coal from Kiratpur to Barmana and the period is 1.4.2011 to 24.6.2011 and 1.4.2012 to 12.9.2013. It is also not the case of the plaintiff that the freight charges were to be paid directly by defendant No.3 to the plaintiff. It has been alleged that the freight charges for coal were paid by defendant No.3 in the first instance to defendants No. 1 and 2 and thereafter, defendants No. 1 and 2 disbursed the same to the plaintiff. 17. Thus, the plaintiff cannot be said to have any cause of action against defendant No.3, but in the presence of other set of defendants in the suit, the plaint cannot be rejected unless the cause of action is not found to exist even against the other set of defendants. Thus, it is necessary to examine whether the cause of action is made -10- out from the contents of the plaint against defendants No. 1 and 2? 18. The plaintiff has placed reliance on a document i.e. memorandum of settlement dated 1.4.2011 executed between the plaintiff and defendant No.3. Learned counsel for the plaintiff has made special reference to the following contents of the said document as under:- “In order to ensure smooth transportation of raw material to the factory, it was agreed that the Company will provide demand of cement in lieu of the number of trucks which each of M/s BDTS/HPEx will deploy for bringing raw material to the factory. For example, if M/s BDTS brings 100 trucks of raw material to the factory on the particular day, it will become eligible for demand of 100 cement trucks in lieu of the raw material which it has brought to the factory. The raw material for the above in lieu of which cement demand will be given will consist of coal and fly ash. The balance demand other than the above will be distributed to both M/s BDTS/HPEx in the existing pattern. The above arrangement is also in accordance with the interim order of the Punjab and Haryana High Court, wherein it has been directed that the trucks which are bringing coal/fly ash to the factory shall be given cement demand.” -11- 19. It is on the basis of the aforesaid content that the plaintiff seeks to claim entitlement to the increased freight charges of carriage of coal equivalent to the freight charges payable to it for carriage of cement. Another document relied upon by the plaintiff is the reply submitted by defendants No. 1 and 2 on 26.9.2014 to the communications of the plaintiff dated 11.9.2014 and 22.9.2014, whereby the plaintiff had allegedly made the claim of suit amount from defendants No. 1 and 2. In the said communication dated 26.9.2014, issued by defendant No.3, it was stated as under:- “In context to the above letters, we wish to inform your office that the rate revision is an agreement between ACC Ltd & Union, NKCPL is not a part in the settlement of the rates. Our role & agreement is with ACC for the freight payment to the Truck operators, and not to the Union. The implementation of the transportation rate, date and its subsequent revision is communicated to us by ACC which is implemented by us on the date as informed to us by ACC.” 20. Thus, it is inferable from the contents of communication dated 26.9.2014 that defendants No. 1 and 2 had admitted to have an obligation to implement the -12- transportation rates and its revision from the date it was communicated to them by defendant No.3. The reference so made by defendant No.3, at this stage cannot be construed to be for any other freight than freight for transportation of coal, as defendants No. 1 and 2 were not dealing with transportation of cement in any manner. In this backdrop, the plea raised by the plaintiff with reference to the above noticed contents of memorandum of settlement dated 1.4.2011 cannot be said to be without substance. There is another plea of the plaintiff that it has received amount on increased freight charges from defendants No. 1 and 2 for the period 1.4.2011 to 25.6.2011 and 1.4.2012 to 13.9.2012. The fact so alleged by the plaintiff is subject to proof. If proved, the plaintiff may be able to establish a circumstance in support of its claim. 21. Thus, it cannot be said that in the instant case the contents of plaint do not disclose cause of action against defendants 1 and 2. 22. No doubt, Order 7 Rule 11 (d) encompasses the situation where the suit is barred by limitation. However, -13- for adjudging the issue, the probe as to facts is not required. In other words, if the issue of limitation has to be decided as mixed question of facts and law, the plaint cannot be rejected on the ground of limitation. In the instant case, the plaintiff has sought arrears of increased freight for the period 13.9.2012 till 31.3.2013 and even if the claimed period of 1.4.2011 to 24.6.2011 is ignored at this stage, the entire claim made by the plaintiff cannot be said to be beyond the limitation. The plaint was filed on 14.9.2015 and thus, the claim for the period from 15.9.2012 to 31.3.2013 cannot be said to be beyond the period of limitation. 23. Viewed from another angle, it cannot be said that defendants No.1 and 2 were liable to pay the enhanced freight charges immediately on the date of its accrual. There is no material to suggest such an inference, hence it has to be decided on facts as to on which date the limitation would start to be run. Though, the plaintiff has not made clear pleadings in this behalf, it cannot be ignored that the scope of amendment of pleadings cannot be out rightly negated. Thus, in my considered view, the -14- issue of limitation in any case is the mixed question of facts and law. 24. In result, I find no merits in either of the applications and accordingly, both the applications are dismissed. (Satyen Vaidya) Judge 9th December, 2025 (kck)