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Applicability of the provisions of the Indian Limitation Act, 1956, vis-à-vis, Article 2262 of the French Code Civil, said to be the governing law of limitation in the Union Territory of Pondicherry, erstwhile French Establishment.= whether, by virtue of the Limitation Act, 1963, the French Law of Limitation which had been in force till 1.1.1964, was in any manner repealed or modified by the Limitation Act, 1963. We can draw considerable sustenance from the ratio laid down by this Court in Syndicate Bank (supra), wherein, we have already indicated, this Court considered the interaction between the provisions of the Indian Limitation Act, 1963 vis-à-vis Article 535 of the Portuguese Civil Code. In that case, this Court held as follows: “20. ……………….. In any event, as noticed above, the Portuguese Civil Code, in our view, could not be read to be providing a distinct and separate period of limitation for a cause of action arising under the Indian Contract Act or under the Negotiable Instruments Act since the Civil Code ought to be read as one instrument and cause of action arising therefrom ought only to be governed thereunder and not otherwise. The entire Civil Code ought to be treated as a local law or special law including the provisions pertaining to the question of limitation for enforcement of the right arising under that particular Civil Code and not dehors the same and in this respect the observations of the High Court in Cadar Constructions that the Portuguese Civil Code could not provide for a period of limitation for a cause of action which arose outside the provisions of that Code, stands approved. A contra approach to the issue will not only yield to an absurdity but render the law of the land wholly inappropriate. There would also be repugnancy insofar as application of the Limitation Act in various States of the country is concerned: Whereas in Goa, Daman and Diu, the period of limitation will be for a much larger period than the State of Maharashtra — the situation even conceptually cannot be sustained having due regard to the rule of law and the jurisprudential aspect of the Limitation Act.” 12. This Court also held that it cannot but hold that in the wake of the factum of the Limitation Act coming into existence from 1.1.1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly repealed and it is on this score that the decision of this Court in Justiniano Augusto De. Piedade Barreto v. Antonio Vicente Da Fonseca (1979) 3 SCC 47, stood overruled. This Court also held that there is one general law of limitation for the entire country, being the Act of 1963, and the Portuguese Civil law cannot be termed to be a local law or a special law applicable to the State of Goa, Daman and Diu, prescribing a different period of limitation within the meaning of Section 29(2) of the Limitation Act and the question of saving of local law under the Limitation Act, 1963 does not and cannot arise.- Pondicherry (Extension of Laws) Act, 1968, as amended, has adopted several such legislations in the State of Pondicherry, but the Act which governs limitation is the general law of the land that is the Indian Limitation Act. Consequently, it is not Article 2262 of the French Code Civil that applies to the suit in question, but Section 54 of the Indian Limitation Act, 1963. Under such circumstances, as rightly held by the High Court, the suit filed beyond the period of limitation prescribed under Article 54 of the Indian Limitation Act, 1963 is clearly barred. Since the suit itself is barred by the law of limitation, the other questions of law framed by the High Court were rightly not answered. The appeal, therefore, lacks in merits and accordingly dismissed.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40788

 

REPORTABLE

 

 

 
IN THE SUPREME COURT OF INDIA

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 
CIVIL APPELLATE JURISDICITON

 
CIVIL APPEAL NO. 8308 OF 2013
[Arising out of SLP (Civil) No. 4836 of 2012]

 
Gothamchand Jain .. Appellant
Versus
Arumugam @ Tamilarasan .. Respondent

 

 

 
J U D G M E N T

 

 

 
K. S. RADHAKRISHNAN, J.

 

 

 
1. Leave granted.

 
2. We are, in this appeal, concerned with the applicability of the
provisions of the Indian Limitation Act, 1956, vis-à-vis, Article 2262
of the French Code Civil, said to be the governing law of limitation
in the Union Territory of Pondicherry, erstwhile French Establishment.

 

 

 
3. Appellant herein preferred a suit, being OS No. 295 of 1991
before the Additional Subordinate Judge, Pondicherry. The suit was
resisted, inter alia, on the ground of limitation, which was
ultimately decreed in favour of the plaintiff. However, on the plea
of limitation, the trial Court held as follows:
“12. On Issue No. 3: – Article 2262 of French Code Civil shows
that the limitation for original cause of action is thirty years
and it is a well settled law that the said provision is
applicable to the Union Territory – Pondicherry. Accordingly,
suit claim is not time barred. Hence this issue is answered in
the negative and in favour of the plaintiff.”

 

 

 
4. Defendant took up the matter in appeal before the IInd
Additional District Judge, Pondicherry, but the judgment/decree of the
trial Court dated 25.11.1994 was confirmed. The matter was carried in
appeal to the High Court by filing Second Appeal No. 383 of 2010.
Following substantial questions of law were framed by the High Court:
“1. Whether the lower appellate Court has committed an error
in law in pronouncing a Judgment without considering and
answering the question regarding readiness and willingness on the
part of the respondent/plaintiff to perform his part of the
contract?

 
2. Whether the lower appellate Court has committed an error
in not adverting to the issue regarding limitation when the same
has been specifically raised in the trial Court and also in the
grounds of appeal?

 
3. Whether the Courts below have erroneously held that the
Limitation Act, 1963 is not applicable to the case?”

 
5. The question of limitation was the primary issue which was
raised before the High Court. It was submitted that provisions of the
Indian Limitation Act govern the law of limitation, so far as the
Union Territory of Pondicherry is concerned and not Article 2262 of
the French Code Civil. Placing reliance on the judgment of this Court
in Syndicate Bank v. Prabha D. Naik and Another (2001) 4 SCC 713,
which dealt with the applicability of the provisions of the Indian
Limitation Act, 1963, vis-à-vis, Article 535 of the Portuguese Civil
Code in the Union Territory of Goa, Daman and Diu, the High Court took
the view that it is Article 54 of the Indian Limitation Act, 1963 that
would apply in the matter of filing of the suit in Pondicherry and not
Article 2262 of the French Code Civil. Consequently, it was found
that the suit filed for specific performance of the contract, was not
saved by Article 54 of the Indian Limitation Act which provided that
the suit be filed within three years of the date of agreement. The
appeal was accordingly allowed and the judgment and decree of the
trial Court was reversed by the High Court. Hence the present appeal.

 

 

 
6. Shri R. Nedumaran, learned counsel appearing for the appellant,
submitted that the High Court was not justified in reversing the
concurrent finding arrived at by the trial Court without examining the
other two substantial questions of law framed by the High Court.
Learned counsel also submitted that the concurrent finding of facts
ought not have been reversed by the High Court, placing reliance on
the judgment of this Court in Syndicate Bank (supra). That was a case
where this Court was examining the scope of the Limitation Act, vis-à-
vis, the Portuguese Civil Code and not the provisions of the French
Code Civil, which is one applicable to the present case.

 
7. Shri V. Prabhakar, learned counsel appearing for the respondent,
on the other hand, contended that the ratio of the decision in
Syndicate Bank (supra) would squarely apply to the facts of the
present case and the provisions are pari materia and the High Court
has rightly held that the law that is applicable is the Limitation
Act, 1963 and, if that be so, the suit was hopelessly barred. Under
such circumstances, learned counsel further submitted that there was
no reason for considering the other two substantial questions of law,
since the suit was rightly dismissed on the ground of limitation.

 
Discussion

 

 

 
8. We may notice that de jure merger of the erstwhile French
Territory of Pondicherry took place on 16.8.1962 following the Treaty
of Cession concluded between France and India on 28.5.1956
establishing the cession of the French Establishments by France to
India in full sovereignty. The Parliament enacted the Pondicherry
(Administration) Act, 1962 (Act 49 of 1962) to provide for the
administration of Pondicherry and for matters connected therewith. The
said Act came into force on 15.12.1962. Section 4 of the Pondicherry
(Administration) Act, 1962 deals with continuance of existing laws and
their adaptation, which reads as under:
“4.Continuance of existing laws and their adaptation.- (1) All
laws in force immediately before the appointed day in the former
French Establishments or any part thereof shall continue to be in
force in Pondicherry until amended or repealed by a competent
Legislature or other competent authority:

Provided that references in any such law to the  President
or Government of the French Republic shall be construed as
references to the Central Government, references to the Governor
of the French Establishments in India, to the Commissioner of the
Republic for the French Establishments in India, to the Chief
Commissioner for the French Establishments, to the Chief
Commissioner of the State of Pondicherry or to the Chief
Commissioner, Pondicherry shall be construed as references to the
Administrator of Pondicherry and references to the State of
Pondicherry shall be construed as references to Pondicherry.

(2) For the purpose of facilitating the application of any
such law in relation to the administration of Pondicherry and for
the purpose of bringing the provisions of any such law into
accord with the provisions of the Constitution, the Central
Government may, within three years  from the appointed day, by
order, make such adaptations and modifications, whether by way of
repeal or amendment, as may be necessary or expedient and
thereupon every such law shall have effect subject to the
adaptations and modifications so made.”

 

 

 
9. By the Fourteenth Amendment to the Constitution, which came into
force on 20.12.1962, in the First Schedule to the Constitution under
the heading “II. The Union Territories”, after entry 8, the following
entry was inserted, namely:
“9. Pondicherry : The territories which immediately before the
sixteenth day of August, ‘96, were comprised in the French
Establishments in India known as Pondicherry, Karaikal, Mahe and
Yanam.”

 
Later, by the Pondicherry (Alteration of Name) Act, 2006,
instead of “Pondicherry”, the word “Puducherry” was inserted with
effect from 1.10.2006.

 
10. The Government of Union Territories Act, 1963 (Act 20 of 1963)
was enacted to provide for Legislative Assemblies and Ministries for
the Union Territories. It received the assent of the President on
10.5.1963. The Limitation Act, 1963 was passed by the Parliament on
5.10.1963. By that time, the Union Territory of Pondicherry had
become part of India. Clause 2 of Section 1 of the Limitation Act,
1963 says that it extends to the whole of India except the State of
Jammu and Kashmir. Since the Union Territory of Pondicherry having
become part of India, the Limitation Act automatically extended to the
then Pondicherry. The Limitation Act, 1963, consequently, came into
force in the Union Territory of Pondicherry on 1.1.1964.

 
11. The question that we have to consider is whether, by virtue of
the Limitation Act, 1963, the French Law of Limitation which had been
in force till 1.1.1964, was in any manner repealed or modified by the
Limitation Act, 1963. We can draw considerable sustenance from the
ratio laid down by this Court in Syndicate Bank (supra), wherein, we
have already indicated, this Court considered the interaction between
the provisions of the Indian Limitation Act, 1963 vis-à-vis Article
535 of the Portuguese Civil Code. In that case, this Court held as
follows:
“20. ……………….. In any event, as noticed above, the Portuguese
Civil Code, in our view, could not be read to be providing a
distinct and separate period of limitation for a cause of action
arising under the Indian Contract Act or under the Negotiable
Instruments Act since the Civil Code ought to be read as one
instrument and cause of action arising therefrom ought only to
be governed thereunder and not otherwise. The entire Civil Code
ought to be treated as a local law or special law including the
provisions pertaining to the question of limitation for
enforcement of the right arising under that particular Civil
Code and not dehors the same and in this respect the
observations of the High Court in Cadar Constructions that the
Portuguese Civil Code could not provide for a period of
limitation for a cause of action which arose outside the
provisions of that Code, stands approved. A contra approach to
the issue will not only yield to an absurdity but render the law
of the land wholly inappropriate. There would also be repugnancy
insofar as application of the Limitation Act in various States
of the country is concerned: Whereas in Goa, Daman and Diu, the
period of limitation will be for a much larger period than the
State of Maharashtra — the situation even conceptually cannot be
sustained having due regard to the rule of law and the
jurisprudential aspect of the Limitation Act.”

 

 

 
12. This Court also held that it cannot but hold that in the wake of
the factum of the Limitation Act coming into existence from 1.1.1964,
Article 535 of the Portuguese Civil Code cannot but be termed to be
impliedly repealed and it is on this score that the decision of this
Court in Justiniano Augusto De. Piedade Barreto v. Antonio Vicente Da
Fonseca (1979) 3 SCC 47, stood overruled. This Court also held that
there is one general law of limitation for the entire country, being
the Act of 1963, and the Portuguese Civil law cannot be termed to be a
local law or a special law applicable to the State of Goa, Daman and
Diu, prescribing a different period of limitation within the meaning
of Section 29(2) of the Limitation Act and the question of saving of
local law under the Limitation Act, 1963 does not and cannot arise.

 
13. We may, in this case, refer to the Pondicherry (laws)
Regulation, 1963 (No. 7 of 1963) which deals with the regulation to
extend certain laws to the Union Territory of Pondicherry. Reference
may also be made to the Pondicherry (Extension of Laws) Act, 1968. By
virtue of those legislations, the Indian Contract Act, 1872, the
Transfer of Property Act, 1882 and various other enactments were
brought into force in Pondicherry. It is, therefore, to be seen as to
whether specific legislations containing the subjects under which the
cause of action had arisen, would govern the field or the procedural
law assuming it would have its due application in replacement of the
governing statute. This question was also pointedly considered by
this Court in Syndicate Bank (supra) and the Court took the view that
the cause of action of the suit, namely, money lent and advanced in
terms of the agreement stands squarely governed by the Contract Act
read with the Negotiable Instruments Act by reason of the admitted
execution of the promissory note and, as such, cannot be said to be
governed by the Portuguese Civil Code. The Court held that the
Portuguese Civil Code cannot be read to be providing distinct and
separate period of limitation for cause of action arising under the
Indian Contract Act and other related laws.

 
14. Pondicherry (Extension of Laws) Act, 1968, as amended, has
adopted several such legislations in the State of Pondicherry, but the
Act which governs limitation is the general law of the land that is
the Indian Limitation Act. Consequently, it is not Article 2262 of
the French Code Civil that applies to the suit in question, but
Section 54 of the Indian Limitation Act, 1963. Under such
circumstances, as rightly held by the High Court, the suit filed
beyond the period of limitation prescribed under Article 54 of the
Indian Limitation Act, 1963 is clearly barred. Since the suit itself
is barred by the law of limitation, the other questions of law framed
by the High Court were rightly not answered. The appeal, therefore,
lacks in merits and accordingly dismissed.

 

 

 

 

 
……………………….…J
(K.S. Radhakrishnan)

 

 

 

 

 
………………………….J
(A.K. Sikri)
New Delhi,
September 18, 2013

 

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