//
you're reading...
legal issues

Limitation act = suit for recovery of amount against govt. sec. 80 c.p.c notice two months time is to be excluded while calculating the limitation.= Limitation act sec.15.Exclusion of time during which proceedings are suspended.- (1) … (2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded.=In our view, proper interpretation of Section 15(2) of the Act would be that in computing the period of limitation, the period of notice, provided notice is given within the limitation period, would be mandatorily excluded. That would mean a suit, for which period of limitation is three years, would be within limitation even if it is filed within two months after three years, provided notice has been given within the 8 limitation period. In such a case, the period of notice cannot be counted concurrently with the period of limitation. If it is done, then period of notice is not excluded. Any other interpretation would be contrary to the express mandate of Section 15(2) of the Act.

1

English: panajim circle

Image via Wikipedia

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.10763 of 2011

ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 1352 OF 2011

M/S. DISHA CONSTRUCTIONS & ORS. Appellants

VERSUS

STATE OF GOA & ANR. Respondent(s)

JUDGMENT

GANGULY, J.

1. Heard learned counsel for the parties.

2. Leave granted.

3. A suit was filed by the appellants praying for

payment of money which according to the appellants was

due to them for undertaking the construction work on

behalf of the defendants. The suit was dismissed by a

judgment and order dated 12th November, 2009 by the

District Judge, North Goa, Panaji, inter alia, holding

that the plaint cannot be registered as it was barred

by limitation as also in view of the fact that there

was no compliance with Section 80 of the Civil

Procedure Code insofar as notice on defendant No. 2 is
2
concerned.

4. On an appeal before the High Court, the High Court

was pleased to hold that the suit is barred by

limitation but on the question of notice, the High

Court came to a different finding and came to the

conclusion that notice was served. The material facts

of the case are as follows:

5. The appellants-plaintiffs entered into an

agreement with respondent No. 1 for construction of a

school auditorium for Fr. Agnelo High School under M.P.

L.A.D. scheme. On completion of the work on 30th

September, 2006 defendant No. 2 issued a certificate of

completion dated 3rd October, 2006. Out of the total

amount of Rs.24,26,000/- the appellants plaintiffs were

paid only Rs.18,12,000/- and therefore, there was a

balance amount to be paid. The appellants plaintiffs

prayed for the payment of the balance amount but it was

denied and the same remained unpaid from 30th September,

2006 and a suit was filed on 24th October, 2009 for

recovery of a sum of Rs.9,15,550/- with interest at

18%.

6. The first question, which was examined by the High

Court, was whether notice under Section 80, CPC was

required to be given to defendant No. 2? The High Court

came to the conclusion that such notice was necessary.

The High Court observed as follows:
3
“Since the suit was filed by the
plaintiffs against defendant No. 2 in his
official capacity, in my opinion, the
defendant No. 2 was certainly required to be
given a notice, as required under Section 80
of the Civil Procedure Code and in absence of
the same, the suit filed against him had to
be necessarily considered as bad in law for
want of notice. However, that cannot be said
to be fatal to the entire case of the
plaintiff because the plaintiff’s suit was
essentially for recovery of money and as
could be seen from the prayer clause (a) it
was filed against defendant No.1. A similar
view was held by the Apex Court in Ram Kumar
Vs. State of Rajasthan, AIR 2008 (10) SCC
73.”
7. It is a common ground that High Court correctly

noted the relevant facts, which are as under:

“…according to the plaintiff, the cause of
action had arisen, as pleaded by the
plaintiff, on 30/09/2006 and being so, the
suit against defendant No. 1 had to be filed
before 30/9/2009 that is to say before the
expiry of three years, that being the period
prescribed, for filing a suit for recovery
of money. There is no dispute that the suit
was in fact filed on 24/10/2009. There is
also no dispute that the plaintiff had sent
notice to defendant No. 1 on 19/02/2009
which was received by defendant No. 1 on
27/02/2009. If two months are computed from
27/02/2009, the plaitiffs were required to
file the suit on 27/04/2009.”
8. Upon setting out the aforesaid fact, the High

Court has noted that the notice under Section 80 was

served on Defendant No. 1 on 27th February, 2009 and the

period of two months had expired on 27th April, 2009.

According to the High Court, the period of limitation

expired on 30th September, 2009 and therefore, the suit

which was filed on 24th October, 2009, was barred by

limitation.
4
9. Assailing the aforesaid finding, learned counsel

for the appellants has drawn our notice to the

provision of Section 15(2) of the Limitation Act which

is contained under Part III of the Limitation Act, 1963

(hereinafter referred to as ‘the Act’). Part III is

under the heading “Computation of period of limitation”

and Section 15 deals with “Exclusion of time in certain

other cases”. Sections 12, 13 and 14 also deal with

exclusion of time in different situations such as

“Exclusion of time in legal proceedings“, “Exclusion of

time in cases where leave to sue or appeal as a pauper

is applied for” and “Exclusion of time of proceeding

bona fide in Court without jurisdiction” respectively.

10. Section 15(2) which is relevant for our

consideration deals with exclusion of time which is

required to be given for a notice and there is also an

explanation which is appended to Section 15. The said

Section 15(2) reads as follows:

15. Exclusion of time in certain other
cases.–

(1) …

(2) In computign the period of limitation
for any suit of which notice has been given,
or for which the previous consent or
sanction of the Government or any other
authority is required, in accordance with
the requirements of any law for the time
being in force, the period of such notice
or, as the case may be, the time required
for obtaining such consent or sanction shall
be excluded.
5

Explanation.–In excluding the time required
for obtaining the consent or sanction of the
Government or any other authority, the date
on which the application was made for
obtaining the consent or sanction and the
date of receipt of the order of the
Government or other authority shall both be
counted.
11. It may be noted that the present Section 15(2) is

a little more comprehensive than the previous Section

15(2) of the Limitation Act, 1908 which reads as

follows:

15.Exclusion of time during which proceedings
are suspended.-

(1) …

(2) In computing the period of limitation
prescribed for any suit of which notice has
been given in accordance with the
requirements of any enactment for the time
being in force, the period of such notice
shall be excluded.

12. We are of the view that in the facts and

circumstances of this case, the notice under Section

80 was admittedly given on 19th February, 2009 which is

within the period of limitation and the same was

received on 27th February, 2009 and two months from the

date of receipt expired on 27th April, 2009.

13. The High Court has held, in our view erroneously,

that since the suit was filed on 24th October, 2009,

which is beyond 30th September, 2009, the plaintiffs

appellants are not entitled to the benefit of

exclusion statutorily provided under Section 15(2) of

the Act and the suit is barred by limitation.
6
14. The said interpretation of the High Court is

erroneous in view of the fact that if the notice under

Section 80 had been given, say, on 29th September,

2009, in that case the appellants according to High

Court’s interpretation, would have been given the

benefit of exclusion of time after 30th September,

2009. Just because the appellants gave the notice

before the expiry of the period of limitation, the

benefit which is given under Section 15(2) of the Act

cannot be taken away. We are of the view that the said

period of two months must be computed and benefit of

exclusion of the said two months must be given to the

appellants even if they had given the said notice

within the period of limitation. If the appellants had

given the notice after the expiry of period of

limitation, say, after 30th September, 2009, then

possibly they could not have been given the benefit.

In this connection, we may refer to the decision of

this Court in Union of India & Ors. Vs. West Coast

Paper Mills Ltd. & Anr. (2004) 3 SCC 458, where in a
somewhat similar situation, this Court has held as

follows:

“Any circumstance, legal or factual,
which inhibits entertainment or
consideration by the Court of the dispute on
the merits comes within the scope of the
Section and a liberal touch must inform the
interpretation of the Limitation Act which
deprives the remedy of one who has a right”.
7
15. We are in respectful agreement with the aforesaid

principles laid down by this Court though in the

context of considering Section 14 of the Limitation

Act. We are of the view that the same principles should

be applied while considering the provision of Section

15(2) of the Limitation Act. The statutory provision in

this connection is very clear and in the definition

clause also it has been made clear in Section 2(j) of

the Act. Under Section 2(j) of the Act, the “period of

limitation” means the period prescribed for any suit,

or other proceeding by the Schedule and the “prescribed

period” means the period of limitation computed in

accordance with the provisions of the Act. If we follow

the aforesaid principles, as we must, we find that the

erroneous interpretation which has been given by the

High Court will have the effect of denying the

appellants the benefit of Section 15(2) which is not

permissible in the eye of law.

16. In our view, proper interpretation of Section 15(2)

of the Act would be that in computing the period of

limitation, the period of notice, provided notice is

given within the limitation period, would be

mandatorily excluded. That would mean a suit, for which

period of limitation is three years, would be within

limitation even if it is filed within two months after

three years, provided notice has been given within the
8
limitation period. In such a case, the period of notice

cannot be counted concurrently with the period of

limitation. If it is done, then period of notice is not

excluded. Any other interpretation would be contrary to

the express mandate of Section 15(2) of the Act.

17. We, therefore, set aside the order of the High

Court and we hold that the suit is within the period of

limitation. Since, on the question of notice, the

finding of the trial Court has been overruled by the

High Court and the High Court has held that the notice

has been served on defendant No. 1 and against such

finding there is no cross objection, we are of the view

that the notice in this case has been served.

18. Therefore, we direct that the suit may be heard

out now on merits by the trial Court as early as

possible. We, however, do not make any observation on

the merits of the controversy between the parties.

19. The appeal is accordingly allowed. No costs.
………………………..J.
(ASOK KUMAR GANGULY)
………………………..J.
(JAGDISH SINGH KHEHAR)

NEW DELHI,
09-12-2011

About these ads

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 687,614 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,588 other followers

Follow advocatemmmohan on WordPress.com

comments

k.inbasakaran,advoca… on Sec.138 of N.I.Act – Ter…
Follow

Get every new post delivered to your Inbox.

Join 1,588 other followers