What is sufficient cause

The Supreme Court in N.Balakrishnan v. M.Krishnamurthy [1998(7) SCC 123], observed that the superior Court would be free to consider the cause shown for the delay afresh and to come to its own finding.

“9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncontainable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in regional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.”

The Supreme Court in M.K.Prasad v. P.Arumugam [2001(6) SCC 176], while considering the question regarding delay in applying for setting aside the exparte decree, observed that the Court ought to keep in mind the judgment impugned in the matter, the extent of property involved and the stake of the parties, while deciding an application to set aside the exparte decree.

The Supreme Court in Ram Nath Sao v. Gobardhan Sao [2002(3) SCC 195], explained the expression “sufficient cause” within the meaning of Section 5 of the Limitation Act, 1963. The Supreme Court very clearly observed that explanation for the delay should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case. The Supreme Court said:

“12. Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bone fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the list terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.”

In GMG Eng. Industries vs. ISSA Green Power Solution [2015(6) Scale 551], the Supreme Court observed that the term “sufficient cause” must receive liberal construction.

“8. It is well settled that the expression ‘sufficient cause’ is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bonafide is imputable to the Appellants, the delay has to be condoned. The discretion is to be exercised like any other judicial discretion with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner. The true test is to see whether the applicant has acted with due diligence.”

In Executive Officer, Antiyur Town Panchayat vs. G.Arumugam, [2015(3) SCC 569], the Hon’ble Supreme Court considered a similar case involving delay.

 In G.Arumugam’s case, the suit land was classified as Natham Poromboke and possession and records of title are in the name of appellant Town Panchayat. The Trial Court dismissed the suit filed by the respondent for declaration of title and possession. The first Appellate Court allowed the appeal and suit was decreed. The Executive Officer, Antiyur Town Panchayat, Erode District, Tamil Nadu, who took charge when the execution petition was filed, initiated action to file second appeal. He filed an application to condone the delay of 1373 days in filing the second appeal. The High Court dismissed the application and refused to condone the delay. While allowing the appeal filed by the Panchayat, the Supreme Court narrated the facts and observed thus:

“2. It appears, no steps were taken by the Executive Officer of the Panchayat at the relevant time. When the Executive Officer, at the time of filing the second appeal, came to know of the proceedings when steps for eviction were taken in execution, he immediately took steps and filed an application on 26.10.2004 for certified copy of the judgment and decree. The same were issued on 15.12.2004, and after obtaining the necessary sanction and on completing the other procedural formalities, the second appeal was filed on 05.01.2005 along with application for condonation of delay. By the impugned order, the High Court declined to condone the delay. According to the High Court, the delay is not properly explained. It is also observed in the impugned order that though the certified copies were issued on 15.12.2004, the second appeal is filed only on 05.01.2005 and that there is no explanation even for that delay.

3. In the additional affidavit filed on behalf of the Appellant on 12.12.2006, it is brought to the notice of this Court that Shri K.G. Ramasamy, who was working as Executive Officer of the Panchayat at the relevant time was suspended from service w.e.f. 12.07.2002 on allegations of corruption. Be that as it may, after going through the records and after hearing the counsel on both sides, we are satisfied that the delay occasioned only on account of the deliberate lapses on the part of the Executive Officer of the Panchayat at the relevant time. Who else are involved in the process, is not quite clear.

4. As held by this Court in State of Nagaland v. Lipok Ao and Ors. MANU/SC/0250/2005 : (2005) 3 SCC 752, the court must always take a justice- oriented approach while considering an application for condonation of delay. If the court is convinced that there had been an attempt on the part of the government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view in such situations, condone the delay, howsoever huge may be the delay, and have the matter decided on merits.

Calcutta High Court clarified the meaning “time requisite” in Section 12(2) of the Limitation Act for Certified Copy

The position has also been made clear by the latest Supreme Court decision on this point in the case of the The Commissioner of Sales Tax, U.P. Vs. Madan Lal Das and Sons, Bareilly, . This decision interpreted Section 12(2) of the Limitation Act 1963 and following its earlier decision in the case of State of Uttar Pradesh Vs. Maharaj Narain and Others, the Supreme Court observed that the expression “time requisite” in Section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order.

1981) AIR(Calcutta) 365

CALCUTTA HIGH COURT

DIVISION BENCH

( Before : Ramendra Mohan Datta, J; C.K. Banerji, J )

SMT. ANNADA SUNDARI SAHA — Appellant

Vs.

MONOHARAN SAHA AND OTHERS — Respondent

Appeal No. 250 of 1974

Decided on : 05-09-1980

  • Civil Procedure Code, 1908 (CPC) – Order 41 Rule 1, Order 41 Rule 29, Order 41 Rule 3
  • Limitation Act, 1963 – Section 12(2)
  • Counsel for Appearing Parties

    B.N. Sen, for the Appellant; Manoharan Saha and P.K. Das, for the Respondent

                                                            JUDGMENT
    Ramendra Mohan Datta, J.—This application is made by the respondent in the above appeal for an order, inter alia, that the appeal herein be dismissed as being barred by limitation, There is an alternative prayer to the effect that the order granting leave to file the memorandum of appeal without the certified copy of the decree be cancelled or recalled or withdrawn and the leave granted be revoked and/or set aside and the appeal be dismissed on the ground of non-compliance by the appellant with the undertakings given at the time of the admission of the appeal.

    2. It is not necessary to go into the details of the facts except to mention that the hearing of the suit lasted for more than 32 days and, thereafter, the suit was dismissed with costs on or about April 11, 1974. On the very same date the plaintiff appellant gave requisitions for drawing up of the decree and for a certified copy thereof. The plaintiff appellant was granted leave to file the memorandum of appeal on or about August 2, 1974 without the certified copy of the said decree on the undertakings given to court:

    (a) To file the certified copy of the said decree within the period of limitation;

    (b) To cause the order dated 2nd Aug., 1974 to be drawn up and included in the paper book to be filed herein; and

    (c) To cause a list, of all dates relevant to the question of limitation to be prepared and to include the same in the said paper book.

    3. After filing the said memorandum of appeal the appellant on the application of the respondent by way of security for costs, gave an undertaking to the Appeal Court that the appellant would not deal with or dispose of her remaining 6 1/2 annas share in the suit property which is alleged to have been purchased by the appellant in execution of the mortgage decree pending the final disposal of the appeal.

    4. In compliance with the said third undertaking as enumerated above the appellant prepared and included a list of all dates relevant to the question of limitation in the paper book at page 2243 as follows :

    Re: Decree  dated 11th April, 1974
    1. Date of furnishing requi
       sition for drawing up of
       the decree......   11-4-74,
    2. Date of furnishing requi
       sition for certified copy
       of the decree......   11-4-74
    3. Draft decree received on          28-5-75.
    4. Decree settled on   4-7-75.
    5. Decree signed on   11-7-75.
    6. Decree filed on   25-2-76.
    7. Folios assessed on    1-3-76.
    8. Stamp furnished   on    1-3-76.
    9. Certified copy of    decree
        ready for delivery on  19-3-76.
    10. Certified copy of decree fil
        ed before Appeal Section
        on.     24-3-76.
    11. Memorandum of appeal
        filed in Court on.         2-8-74.

    We do hereby certify that the above statement is correct. D. P. Sarvadhikary & Co. Attorney for the appellant”.

    5. On behalf of the respondent Monoharan Saha, Mr. P. K. Das learned Advocate contends that the decree was signed on July 11, 1975 but the same was not filed until February 25, 1976 i. e. after a lapse of more than 7 months in between the signing of the decree and the filing thereof. That being so, it is contended that the appellant has committed breach of the very first undertaking which was given to this Court on August 2, 1974 when the memorandum of appeal was allowed to be admitted without a certified copy of the said decree. In other words, the appellant had not filed the certified copy of the said decree within the period of limitation. In view of the fact that the appellant has committed breach of the undertaking or condition subject to which the above memorandum of appeal was admitted by the said order dated August 2, 1974, there is no competent appeal which can be entertained by this Court and, accordingly, it is submitted that on this ground the leave granted admitting the memorandum of appeal without a certified copy of the decree, should be cancelled or revoked and/or the appeal should be dismissed on such ground and/ or on the ground that the appeal is barred by limitation. It is contended that unless this question is decided first, there will be great delay in the disposal of the appeal and for the ends of justice it is fit and proper that the appeal be heard and disposed of on this preliminary point in favour of the petitioner.

    6. Mr. B. N. Sen appearing on behalf Of the appellant contends that this is a case where the appeal has been filed with the leave of the Court within the period Of limitation. The High Court in giving such leave to file the memorandum of appeal without the certified copy of the decree acted in accordance with the rules of the Original Side of this Court whereby the Appeal Court allowed the appellant to file the memorandum of appeal by obtaining the undertaking set out herein-above. Hence, the filing of the memorandum of appeal cannot be held to be a nullity in case there is breach of such undertaking. The question of limitation does not strictly speaking arise because the appeal has been allowed to be filed with the leave of the Court. If there would be delay, under such circumstances, to file the decree on the basis of such undertaking the same would not give rise to a question of limitation although the same might entail punishment for breach of the undertaking as given to Court. It is a procedural matter that is provided under Order XLI, Rule 1 of the Code. The said provision of the Code, being a provision in the first schedule to the Code, comes within the powers of every High Court to alter, add to or substitute or amend such provision by making necessary rules acting under the provisions of Sections 121 to 129 of the Code. The Rules of the Original Side of this Court have been framed on the basis of powers conferred by the Letters Patent of 1865 and, thereafter, by the said provisions of the Code. The rules of the Original Side of this Court, accordingly, shall override the provisions of the first schedule to the Code. On the basis thereof the Appeal Court makes the order under Rule 2 of Chapter XXXI of the Original Side Rules read with Rule 29 (b) thereof in giving leave to the appellant to file the memorandum of appeal without the certified copy of the decree or order, as the case may be on the basis of such undertakings as mentioned hereinabove. Such undertakings are not part of the rules of the Original Side but the same are obtained on the basis of the long standing practice of this Court which have the force of law. In any event, the filing of the decree being a matter of procedure, it is submitted that the order admitting the appeal cannot be a nullity when such undertakings are not fulfilled.

    7. Mr. Das, on the other hand, contends that it is a condition on the fulfilment whereof only the filing of an appeal becomes valid and in default of performance thereof the filing of the appeal becomes a nullity. Mr. Das, however, concedes that for the breach of the other two undertakings as enumerated in (b) and (c) above, the appeal does not become a nullity.

    8. To that Mr. Sen contends that there are cases where the appeals are settled even though the undertakings have not been performed and in most such cases the Court exempts the appellant from performing the undertakings. Even then the orders made in such appeals are valid orders, and do not become nullities on the ground that such undertakings have not been complied with by filing the certified copy of the decree or order.

    9. This is the question which we have to consider and decide. To appreciate the arguments it is necessary in this connection to consider the relevant provisions of filing of appeals to the Division Bench on the Original side as provided in Chapter XXXI of the Original Side Rules. Rule 2 provides:

    “Form of Memorandum.

    2. Every memorandum of appeal from the Original Side shall be in Form No. 1 and shall be drawn up in the manner prescribed by Order XLI, Rule 1 of the Code, and shall be presented to the Registrar, accompanied by a copy of the Decree or Order appealed from.”

    Rules 3, 4, 5 and 29 (a) and (b) provide :

    “3. The Registrar shall accept and file a Memorandum of Appeal, if it is duly stamped and Rule 2 has been complied with, and if it appears to him to have been presented within the time allowed by the law of limitation. But such acceptance and filing shall not be a bar to any objection that may be taken in respect of any of such matters at the hearing of the appeal.”

    “4. When the Memorandum of Appeal is not accepted by the Registrar he shall endorse thereon the date of its presentation and return it to the party or attorney by whom it was tendered. Such Memorandum of Appeal may then be presented to the Appellate Court for admission.”

    “5. Application for the admission of a Memorandum of Appeal rejected by the Registrar shall be made to the Appellate Court at the earliest opportunity. The Appellate Court on hearing such application may admit or reject the same with or without notice to the respondent. Where it is admitted without notice to the respondent such admission shall not be a bar to any objection that may be taken at the hearing of the appeal in respect of its admissibility.”

    “29. (a) The Appellate Court, or, if such Courts be not sitting, a judge sitting on the original side of the High Court may, upon application and upon sufficient cause being shown, enlarge the time prescribed by these rules for doing any act to be done under their provisions. An application for enlargement of time must ordinarily be made before the expiration of the prescribed time and must be supported by an affidavit, and also by a certificate of the Registrar; showing the dates on which any acts prescribed by these rules were done.”

    (b) The Appellate Court, or the Judge as aforesaid, may also upon application and upon sufficient grounds verified by affidavit, exempt the parties or any of them from the operation of the whole or any part of these rules and may make such special order as shall appear desirable with regard to any matter with which these rules are concerned.”

    Vis-a-vis these rules we have now to consider the provisions of Order XLI of the CPC for filing of appeals from original decrees. The relevant part of Rule 1 (1) is set out as follows: –“1 (1). Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such Officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded”. If the effect of the orders in the First Schedule to the Code is considered it will appear that Part X of the Code contains Sections 121 to 131; and Section 123 thereof provides for formation of Rule Committee by the High Courts to make rules. Section 121 provides that the rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of the said Part X. Section 122 of the Code provides, inter alia, that the High Courts may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule. It follows, therefore, that the power to make rules has been vested in the High Courts. When such rules are made by the High Court they become a part of the Code and are treated as such for all purposes. Such legislative policy has been made out with sufficient clarity and that being the position, the rules of the Original Side of this Court would have overriding effect over the rules as framed in the First Schedule. Regarding the exercise of its Original Civil Jurisdiction the rules relating to procedure in the Original Side are made in Section 129 of the Code. It provides, inter alia, that notwithstanding anything in the Code of Civil Procedure, the High Court may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing therein contained shall affect the validity of any such rules in force at the commencement of the Code. u/s 131 it is provided that the rules made in accordance with Section 129 of the Code shall be published in the Official Gazette and shall from the date of publication or from such other date as may be specified have the force of law. Chapter XL, Rule 3 of the Rules of the Original Side provides for general rules as to procedure of this Court and the same provides :

    “Where no other provision is made by the Code or by these rules the present procedure and practice shall remain in force.”

    10. It very often happens that the certified copy of the decree is not available to the appellant until a considerable time is passed. The department concerned takes some time to make it ready and available to the appellant but the nature of the decree or order appealed from might be such that unless a stay of the operation thereof would be obtained from the Appeal Court the appellant might suffer real prejudice. For that purpose the appellant is required to file the appeal but the appellant cannot do so because Order 41, Rule 1 (1) provides that the memorandum shall be accompanied by a copy of the decree appealed from. From the aforesaid rules of this Court it will be noticed that Rule 2 of Chapter XXXI of the Original Side Rules requires that the memorandum of appeal must be in form No. 1 and must be drawn up in the manner prescribed by Order XLI, Rule 1 of the Code. That is a mandatory provision when it is presented before the Registrar of this Court. In other words, after the certified copy of the decree or order appealed from is obtained from the department the same would be presented for acceptance by the Registrar and in doing so both the memorandum and the certified copy of the decree or order appealed from must together be so presented. The Registrar will no doubt examine whether such memorandum of appeal was being presented before him within the period of limitation but even such acceptance and filing by the Registrar would not be final and objection might be taken in respect thereof at the hearing of the appeal; but we are not concerned with such type of presentation and filing. We are concerned with a case where the memorandum of appeal is presented before the Appeal Court directly at a time when the certified copy of such decree or order appealed from, has been applied for, but not obtained, from the department. Under such circumstances, the Appeal Court acting under Rule 29 (b), as set out above, grants exemption to the parties from the operation of the whole or any part of the rules provided therein. Under the said rule the appeal court has been given powers to make such special order as might appear desirable with regard to any matter with which the said rules are concerned. There is a long standing practice of this Court to grant such exemption but to a limited extent. It is granted conditionally upon the appellant’s undertaking to court, inter alia, to file the certified copy of the decree or order appealed from, within the period of limitation. That time old practice has the force of law under Chapter 40, Rule 3 of the Original Side Rules as set out above. In other words, the appellant is allowed to file the memorandum of appeal without the certified copy of the decree or order appealed from but if ultimately it is found at the hearing of the appeal or earlier that he has allowed the time to expire and has failed to file such certified copy of the decree or order appealed from within the period of limitation, after excluding the time required by the department concerned to make it ready for filing thereof within the meaning of Section 12(2) of the Limitation Act, 1963, then the appeal would be incompetent. Under such circumstances, the question of limitation will arise, because it was allowed to be filed subject to the question of limitation.

    11. Mr. Das contends that, under such circumstances, the entire proceedings before the Appeal Court will become null and void including the interim orders or interlocutory orders passed in such appeal. I do not think that the effect of the non-filing of the certified copy of the decree or order appealed from would have such a far-reaching effect. The reasons are first, that the memorandum of appeal was allowed to be filed with the leave of the Court; secondly, though it was made conditional subject to the question of limitation yet it was not made a condition precedent, and thirdly, whether the time taken for obtaining the certified copy was the time requisite within the meaning of Section 12(2) of the Limitation Act might be dependent on various questions of fact which might have to be gone into and decided in connection therewith. If after going into such facts the Appeal Court would come to the conclusion that such filing of the certified copy was beyond the period of limitation it could not be contended that any interlocutory orders made by it would at all be considered as non est. Under such circumstances, the appeal might be dismissed but the effect on the interim orders or interlocutory orders made therein would be the same as it happens when the appeal is dismissed on the ground of limitation or as not maintainable or after contested hearing.

    12. The argument of Mr. Sen also in this connection does not appear to me to be correct. Mr. Sen contends that the question of limitation is no longer there after the Court grants leave to file the memorandum of appeal without the certified copy of the decree or order appealed from. Mr. Sen’s contention, that it is a matter of punishment for breach of the undertaking, cannot be accepted either. The undertaking is to file the certified copy within the period of limitation and, accordingly, the question of limitation has expressly been kept open to be decided at a later point of time. The point of limitation was not given a go by completely at the time of making the order exempting the appellant from observing the formalities which he is otherwise required to observe hi accordance with the rules of procedure as laid down by the Code and by the rules herein. In my opinion, the decisions of this Court and of the Supreme Court which are to be presently discussed are not in any way contrary to what has been observed here in above

    13. The Supreme Court in the case of Lakshmi Rattan Engineering Works Ltd. Vs. Asstt. Commr. Sales Tax, Kanpur and Another, draws a distinction between the expression “appeal” and “memorandum of appeal” which are provided under Order XLI of the Code. At page 492 it is observed:–

    “In our opinion, making ‘an appeal’ the equivalent of the memorandum of appeal is not sound. Even under Order 41 of the Code of Civil Procedure, the expressions “appeal” and “memorandum of appeal” are used to demote two distinct things. In Wharton’s Law Lexicon, the word “Appeal” is defined as the Judicial examination of the decision by a higher Court of the decision of an inferior Court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed.”

    14. In that case the Assistant Commissioner, Sales Tax rejected as defective the memorandum of appeal filed by the appellant company against the assessment order on the ground that the memorandum of appeal which was admittedly filed within the time was not accompanied by the challan showing the deposit of admitted tax u/s 9 of the U. P. Sales Tax Act, 1948. The appellant appealed directly to the Supreme Court by special leave against the said order. Section 9 of the said Act, inter aha, required that no appeal against the assessment would be entertained unless it was accompanied by a satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. Under the relevant rules as framed by the U. P. Sales Tax Rules 1948 it was, inter alia, provided that the memorandum of appeal was to be accompanied by a challan showing deposit in the Treasury of the tax admitted by the appellant to be due. The question arose whether the various rules which became part of the Act were complied with and for the non-compliance thereof the appeal could be considered to be incompetent and whether it was properly rejected. At page 491 the Supreme Court observed :

    “The question, therefore is at what stage can the appeal be said to be entertained for the purpose of the application of the proviso? Is it ‘entertained’ when it is filed or is it ‘entertained’ when it is admitted and the date is fixed for hearing or is it finally ‘entertained’ when it is heard and disposed of?”

    15. In this case we are not concerned with the word “entertained;” but we are concerned with the words “filed”, “presented” or “accepted” as provided under the above rules of Chapter XXXI set out hereinabove and, accordingly, save and except the observations made in the said decision regarding the interpretation of the provision of Order XLI of the Code and the distinction made of the word “appeal” and the expression “memorandum of appeal”, the said decision cannot have any application in the facts of the case before us.

    16. That being the position, when the written memorandum of appeal is filed and/or when the same is allowed to be filed with the leave of the court on the basis of the undertaking as recorded, the appeal is so filed but subject to the question of limitation and/or competency and/ or maintainability thereof which are to be decided at a subsequent point of time; when the condition would be fulfilled the appeal would be properly filed otherwise the appeal would become incomplete or incompetent.

    17. To my mind, Mr. Sen’s example, to the effect that an appeal might be settled before the certified copy of the order or decree appealed from, would be filed in terms of the undertaking, but still the same does not become a nullity and remains effective, can be explained. Under such circumstances, by consent of the parties the court discharges the appellant from its obligation to perform the undertaking which the Court has power to do acting under Rule 29 (b) of Chapter XXXI and the other connected rules provided in the Original Side Rules of this Court. In other words, by discharging the appellant of its undertaking the Court gives a total exemption from the filing of such certified copy and on that basis the order made remains a valid and enforceable order and the questions of incompetency or non-maintainability or being barred by limitation, do not come in the way. It follows, therefore, that the question of filing the certified copy of the decree or order appealed from, becomes material by virtue of the undertaking that is obtained from the appellant at the time the order is made giving leave to file the memorandum of appeal without the certified copy of the decree or order appealed from. Once the appellant is discharged of its obligation to perform the undertaking then the other questions, as aforesaid, cannot arise.

    18. The question of the filing of appeal under the Original Side Rules of this Court has been considered directly by another Division Bench decision of this Court in Consolidated Appeals Nos. 393 of 1975, 25 of 1976 and 7 of 1976, (Mrs. Angur Bala Mallick v. Rathindra Nath Mitra) before A. N. Sen, J. (as he then was) and Basak J. the judgment whereof was delivered on April 13, 1978 by Basak J. There it has been held that the appeal is deemed to have been filed on the date when the certified copy of the decree or order appealed from is filed. In Angur Bala’s case it was argued that the breach of the undertakings could give rise to contempt proceedings but the appeal could not be dismissed as incompetent. It was observed by the Division Bench, “irrespective of the date of filing of the memorandum of appeal, it is only when certified copy of the decree order is filed, that the appeal is treated to be filed and completed and for the purpose of limitation the date when the certified copy of the decree/order is filed is treated as the date of the filing of the appeal”. The Division Bench relied on the Supreme Court decision in the case of Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, . There also the question arose whether the appeal preferred was competent in law or not. There also the appeal was filed without the certified copy of the decree. In that case at page 834 the Supreme Court observed:

    “Therefore there is no doubt that the requirement that the decree should be filed along with the memorandum of appeal is mandatory, and in the absence of the decree the filing of the appeal would be incomplete, defective and incompetent.”

    There the Supreme Court found that in failing to draw up a decree in that suit the office of the trial Court was negligent of its duties and the said negligence was not even noticed by the learned trial Judge himself. The defect in such procedure was not noticed even by the learned Judge who by an order admitted the appeal. It was only immediately before the hearing of the appeal the respondent gave notice to the appellant about his intention to raise preliminary objection that the appeal was not properly filed. In the facts of that case the High Court thought that in fairness to the appellant before it, the appellant should be allowed time to obtain the certified copy of the decree and to file the same before it and under such circumstances the High Court passed the order in appeal. The appellant before the Supreme Court challenged the said order as manifestly erroneous in law. The Supreme Court upheld the order passed by the High Court in the facts and circumstances of that case and at p. 838 observed:

    “However, as we have indicated the question about the competence of the appeal has to be judged in each case on its own facts and appropriate orders must be passed at the initial stage soon after the appeal is presented in the appellate Court. If any disputed question of limitation arises it may have to go before the Court for judicial decision”.

    The Division Bench in Angur Bala’s case (supra) observed:

    “Under chapter XXXI Rule 2, memorandum of appeal must be accompanied by the certified copy of the decree or order. This is similar to Order 41, Rule 1 of the Code. The provisions of our rules must also be treated as mandatory as in the case of Order 41, Rule 1 of the Code. So that an appellant may not suffer any serious prejudice in any case when a stay of the operation of the decree/order becomes urgent and immediately necessary, leave is granted by the Appeal Court to the appellant to file the memorandum of appeal without the certified copy of the decree/order on certain undertaking as recorded earlier. Such power of the Court is also recognised by Rule 29 (b) of Chapter XXXI of the O. S. Rules. Before the right of appeal conferred by Section 96 of the Code may be exercised it must comply with other provisions also, including all procedural aspects. Filing of certified copy of the decree/order is one of such requirements. If a certified copy of the decree/order is not filed along with the memorandum of appeal, the appeal is incomplete. It is not a question of deprivation of any statutory right. It must be pointed out that in spite of the conferment of the right of appeal, an appeal has to be dismissed if it is barred by limitation. If an order relating to the filing of an appeal, regarding compliance of the procedural aspects of the appeal, is not complied with and the same is one of the conditions of grant of such leave, then the position is that there is no competent and complete appeal before the Court”.

    19. We are in respectful agreement with the above observation of the Division Bench in Angur Bala’s case. We are also of the view that if the order relating to the filing of an appeal requiring compliance of the procedure provided for filing of an appeal, is not complied with even though an undertaking is given to Court to comply with the same, then there is no competent and complete appeal before the Court. From the trend of the decision of the Supreme Court in the case of Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, it would seem that the Court has power in the facts and circumstances of a particular case to allow the appellant to cure the defect in procedure in the manner it was done in an exceptional case as in the case before the Supreme Court.

    20. If it is carefully examined as to what was actually ordered in giving leave to file the memorandum of appeal without the certified copy of the decree then it would appear that initially the exemption was granted to the appellant to file the certified copy of the decree along with the memorandum of appeal on that date only upon the undertaking of the appellant that he would file the said certified copy of the decree appealed from within the period of limitation. Therefore, it was on that condition that leave was granted by the Appeal Court to file the said memorandum of appeal by granting the said exemption in the manner as provided in the said undertaking viz. that the appellant would file the same within the unexpired period left out on that date or within the extended period which might be available to her as the time requisite within the meaning of Section 12(2) of the Limitation Act for the purpose of obtaining the certified copy of the decree from the department and filing the same. It would follow, therefore, that the mandatory provision of Chapter XXXI Rule 2 was suitably relaxed so that the certified copy of the decree might be obtained from the department and then filed. Under those circumstances, it cannot be contended that if there is a breach of the undertaking then the Court might inflict punishment for such breach but there could be no question of limitation any further. In my opinion, the question of limitation was left open by the court to be decided at the time of the hearing of the appeal or earlier. The question of limitation was, accordingly, left open even though the court gave leave to the appellant to file memorandum of appeal and pursuant to such leave such memorandum of appeal only was so filed within the period of limitation. It was a conditional order touching the question of limitation. The appellant was made aware by such undertaking that she would be obliged to file the said certified copy of the decree within the period of 30 days which was to be calculated on the basis of exclusion of time provided u/s 12(2) of the Limitation Act.

    21. That being the position, Mr. Sen’s contention that the filing of appeal within the time of limitation is complete by the filing of the memorandum of appeal with the leave of the Court, cannot be accepted.

    22. Under the circumstances, the next point urged by Mr. Sen requires examination. From the above list of dates, as set out hereinabove, Mr. Sen contends that in between the date of the signing of the decree and the filing thereof although more than seven months have elapsed yet that time must be taken to be time requisite which was properly required by the department concerned in making ready the certified copy of the decree. In this case several witnesses were examined at the hearing of the suit which went on for about 32 days. A large amount was payable by way of deposition fees. Mr. Sen contends that such deposition fees would only be paid upon the stamps in connection therewith being assessed by the department and after receipt of the notice of filing of the deposition from the department requiring the appellant to put in the same to enable her to file the decree. Although no such rule exists in the Original Side Rules of this Court still the age old practice of this Court is that until such deposition fees are paid on the basis of the notice issued by the department in that respect requiring the appellant to pay the same, the steps in connection with the filing of the decree cannot be taken and, accordingly, such time has to be excluded in computing the period of limitation within the meaning of the expression “time requisite” in Section 12(2) of the Limitation Act. Although affidavits in connection therewith have been filed on behalf of either party but they could not be regarded as a safe guide to ascertain the practice of this Court because far from being uniform as to the existing practice they give nothing but a conflicting and a confusing view in connection therewith. Accordingly a report was called for from the Registrar, Original Side of this Court by an order of the previous Bench (R. M. Dutta & Basak, JJ.) dated March 20, 1980 as follows:–

    “The Court: In this matter the Registrar, Original Side is directed to make a report on the following points within three weeks from date hereof and submit the same to this Court:

    1. Is it the departmental practice of this Court in its original Side that,

    (a) the filing of the decree is dependent on the payment of outstanding deposition fees;

    (b) the payment of the outstanding deposition fees is dependent on assessment of such fees by the department and issue of a notice by the department calling upon the appellant to make such payment?

    2. If there be such a practice as in (1) (a) or 1 (b) or both, has the Registrar, Original Side any discretion in the matter of relaxing the same and allowing the decree to be filed without payment of such outstanding deposition fees, if an undertaking is given by the Advocate-on-record to pay it immediately upon receipt of notice for payment of such outstanding deposition fees issued by the department after assessment thereof?

    3. If there be such a practice as in (1) (a) or 1 (b) or both, then is the same followed in cases where the memorandum of appeal is allowed to be filed without a certified copy of the decree?

    In the matter of such report the Registrar, Original Side would be at liberty to consult such officers and records of the department as he might think proper in his discretion. The report be sent in a sealed cover.

    The Court Officer do send this order forthwith to the Registrar, Original Side, for necessary action.

    Both the appeal and the application are adjourned till 21st April, 1980″.

    23. Pursuant thereto, the Registrar, Original Side made a report dated April 8, 1980 which read as follows:–

    “Lay before their Lordships the Hon’ble Mr. Justice Ramendra Mohan Datta and the Hon’ble Mr. Justice Bimal Chandra Basak.

    I beg to submit this report as directed by your Lordships on the 20th March, 1980. I am dealing with the points raised by your Lordships one by one as follows:–

    (1) Re: Point No. 1 (a):– The Current Records Department which deals with the filing of decrees has reported that under a long standing practice of that department, the filing fees of depositions are realised before the decrees are filed.

    Re: Point No. 2 (b):– The Current Records Department has confirmed in its said report that the payment of the outstanding deposition fees is dependent on assessment of such fees by the Department and also on issue of a notice by the department calling upon the party concerned to make such payment.

    (2) Re: Point No. 2:– The Current Records Department has also reported that the department in some cases filed the decrees with the leave of the Registrar. As observed by Your Lordships, the Registrar has allowed the filing of decrees on undertaking given by the parties concerned to pay the deposition fees. Such permission is sometimes required to be given on request from parties for the sake of expedition.

    (3) Re: Point No. 3:– Yes. As there is no rule compelling a party to file depositions before a decree is filed, the department can only request a party to pay the deposition fees after the issue of a notice requesting the party to pay the same.

    The Registrar is sometimes requested by a party to help the party in the matter of filing of the decree expeditiously on its undertaking to pay the deposition fees on demand. On such occasions, the Registrar has permitted some parties to file the decree on such undertaking on their part to pay the deposition fee on demand. As there is no bar to the filing of a decree, before the deposition fee is paid, the Registrar has permitted decrees to be filed on such requests.

    Submitted.”

    24. From the said report it appears that under a long standing practice the filing fees of depositions are realised before the decrees are filed; that the payment of the outstanding deposition fees is dependent on assessment of such fees by the department and also on the issue of a notice by the department calling upon the party concerned to make such payment; that the Registrar has power to allow the filing of decrees on the undertaking given by the parties concerned to pay the deposition fees and such permission is sometimes given on request from parties for the sake of expedition. That being the position, it is to be examined as to when the appellant was intimated by the department by notice for filing deposition after fees had been assessed and whether any steps were taken by the appellant or her recorded advocates to get the permission from the Registrar to file the deposition even before the same was assessed and if the Registrar has granted or not granted such permission.

    25. From the list of all dates relevant to the question of limitation as included in the paper book at page 2243 and as set out hereinabove, it would appear that up to item 5 viz. that the signing of the decree was made on July 11, 1975 everything was done in the regular course but thereafter what happened, that has not been indicated in the list of dates. It appears from the correspondence which is annexed to the affidavit-in-opposition herein that the appellant’s advocate-on-record had been asking the Registrar for his permission to file the decree without filing the deposition on the undertaking to furnish stamps immediately upon issue of deposition on notice but no reply was received from the Registrar’s end. Such a letter was written on July 28, 1975 and the same read as follows:–

    “Our clients have filed this appeal in which, however, Paper Book has not been completed. We have not been able to file the decree passed in this suit, inasmuch as the deposition has not been filed.

    Please note that deposition has not been filed, and in the absence of such notice we could not file deposition.

    The time for filing Paper Book is running against us. We, therefore, request you to kindly allow us to file the decree herein. We undertake to file the deposition immediately upon receipt of the deposition notice.

    Thanking you,

    Yours faithfully,

    Sd./- D. P. S. & Co.”

    26. There was no reply to this letter by the Registrar. We have been shown two more letters dated August 12, 1975 and December 19, 1975 to the same effect which were written by the appellant’s advocates-on-record to the Deputy Registrar but those were not replied to on behalf of the Registrar.

    27. Then came the notice for payment of deposition fees from the Registrar on January 28, 1976 and the same read as follows-

    High Court

    Original Side;

    Registrar’s Office,

    The 28th day of Jan. 1976

    Suit No. 1476 of 1960.

    Smt. Annada Sundari Saha

    v.

    Monoharan Saha & Ors.

    Dear Sir,

    The sum of Rs. 1582.80 paise is due from the plaintiff for deposition and other fees in the above suit. Will you please see that the necessary stamps are provided as early as possible

    Received Stamps.

    Rs. 1582.80P.

    Deposition Clerk

    Dated 23-2-76.

    Yours faithfully,

    Sd. P. Roy Chowdhury,

    Asst. Registrar,

    28-1-76.


    To M/s. D. P. Sarbadhikary & Co.

    Particulars

    Deposition

    Rs. P.

    Fees.

    C. R. Saha.

    136.00

    P. C. Chatterjee

    37.20

    M. K. Saha

    32.00

    M. Saha

    117.80

    P. N. Mukherjee

    50.20

    K. P. Chatterjee

    37.00

    Moni Lal Saha

    234.80

    S. K. Saha

    500.00

    R G. N. Chowdhury

    52.80

    A. S. Saha

    180.20

    S. Gupta.

    32.80

    55 Ex.

    165.00

    1582.80 “


    28. The appellant’s aforesaid letters and the letter of the Registrar dated January 28, 1976 read together would show that the appellant was all throughout diligent and active and was sincerely intending to file the appeal within the period of limitation. The absence of any reply from the Registrar’s Side would indicate that the Registrar did not intend to exercise his discretion to allow the appellant to file the decree without the payment of the deposition fees. On the contrary, the Registrar must have intended that the large sum which had been found due and owing after assessment of folios would first be paid by the appellant and thereafter the decree should be filed by her. There is no default on the part of the appellant in this respect and whatever was to be done by the appellant was done through her recorded advocates. She expressed her intention to file the decree and asked for the permission of the Registrar in that regard. She was even prepared to give an undertaking to file the deposition immediately after she would get the deposition notice. That being so there could not be any question that up to January 28, 1976 she was entitled to get credit of the said period in her favour and possibly a day more thereafter for the purpose of enabling her to deposit the said amount.

    29. The next step the appellant was supposed to have taken for filing the decree was to deposit the said amount and to get the stamps so that the same could be filed with the department for filing the decree.

    30. From the endorsement made in the aforesaid letter dated January 28, 1976 it appears that the deposition clerk of the department acknowledge receipt of the stamps for Rs. 1582.80 on February 23, 1976. Mr. Sen has drawn our attention to paragraph 9 of the affidavit affirmed by the appellant on July 31, 1971 (sic) where she stated on oath that she was informed by her advocate in the first week of February 1976 that he was required to pay the said sum on account of deposition fees. She informed her advocates that she was not in a position to secure the said sum of Rs. 1582.80 for payment as she had already spent more than Rs. 10,000/- towards costs for filing the appeal and for printing the voluminous paper books. She stated further on oath that she made all possible efforts to secure the said sum and ultimately got the said sum. On or about February 19, 1976 she made over Rs. 1582.80 to her advocates for necessary payment.

    31. It is no doubt true that the aforesaid averments in her affidavit, showed her anxiety to file the appeal but she could not do so immediately for want of necessary funds. In spite of the aforesaid, in my opinion, she is not entitled to her credit the said time which she took for procuring the said sum for payment. She was entitled to credit to her account only such time which was properly taken by the department and not by her in making the certified copy of the decree ready which she undertook to file. That being so, on calculation it would appear that she allowed 24 days to pass-by between January 28, 1976 and February 21, 1976. There is no reason why she should get credit of this period from the period of limitation. Accordingly, out of the period of 30 days she lost 24 days from the date of notice for payment of deposition fees and up to the date when her recorded advocates deposited the said amount of Rs. 1582.80 with the Calcutta Collectorate for purchase of stamps for deposition. Her recorded advocates, however, got the stamps from the Calcutta Collectorate on February 23, 1976 which was a Monday and on that very date the said stamps were deposited in Court. Admittedly, stamps for such huge amounts are not available in the High Court and one has to purchase the same from the Calcutta Collectorate. That being so, the appellant is entitled to her credit the said period between February 21, 1976 and February 23, 1976 both days inclusive when her recorded advocates actually received the stamps from the Calcutta Collectorate. February 21, 1976 was a Saturday and February 23, 1976 was a Monday. This period from February 21 to February 23, 1976 has to be excluded from the period of limitation as time properly taken by the Court in the matter of making ready the certified copy of the decree.

    32. There is default of another day which has not been explained inasmuch as the decree could have been filed on February 24, 1976 but instead it was filed on February 25, 1976 which was a Wednesday. The result, therefore, is that the total number of days lost would come to 25 days up to the date of the filing of the decree.

    33. The next period is between February 25, 1976 when the decree was filed and March 19, 1976 when the certified copy of the decree was made ready for delivery. In between the said period it appears that on March 1, 1976 folios for certified copy of the decree were assessed and on the very same day i. e. on March 1, 1976 stamps in respect thereto were furnished. Thereafter on March 11, 1976 the recorded advocates of the appellant gave a reminder to the Deputy Registrar by their letter about the non-receipt of the certified copy of the decree and, as stated hereinabove, on March 19, 1976 which was a Friday the certified copy of the decree was made ready for delivery. From this date till March 24, 1976 when the certified copy of the decree was filed the appellant lost another 4 days for which no explanation has been given. That being so, in addition to 25 days which she had already lost, she was to lose another 4 days to file the certified copy of the decree. That makes the total of 29 days (24 + 1 + 4 = 29 days).

    34. On the basis of the aforesaid calculation it appears that she was within the period of limitation inasmuch as the undertaking given by her to file the certified copy of the decree within the period of limitation was duly performed. That being so, there is no breach of the undertaking given by the appellant to file the certified copy of the decree within the period of limitation.

    35. Mr. Das appearing on behalf of the respondent has contended that the calculation should take us to 31 days and not any shorter period as held by us. According to the learned advocate the appellant would not be entitled to any exclusion of time between the period from February 21, 1976 and February 25, 1976. Mr. Das in his submission has contended that the appellant is not entitled to the deduction even of the period between February 21, 1976 and February 23, 1976 inasmuch as such time could have been avoided if the appellant had taken steps earlier. In our opinion, that argument cannot stand inasmuch as the steps in that regard were so taken well within the period of limitation and in the facts and circumstances of this case considering both from the point of view of the deposition fees and the enormous cost of preparation of the paper book it must be held that such steps were taken without any laches or negligence on the part of the appellant in the matter of fulfilling her undertaking to Court. What is material to be considered in the matter of such calculation is whether there has been laches or negligence on the part of the appellant in obtaining such certified copy of the decree from the department and filing the same within the period of limitation. We have taken notice of the consistent view taken by the Supreme Court in this regard and have arrived at the conclusion keeping such principles in view.

    36. Referring to Section 12(2) of the Limitation Act the Supreme Court in the case of State of Uttar Pradesh Vs. Maharaj Narain and Others, observed:–

    “It must be remembered that sub-section (2) of Section 12 enlarges the period of limitation prescribed under entry 157 of Schedule I. (Limitation Act, 1908). That section permits the appellant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the application for copy had been filed at some other date. That section lays no obligation on the appellant to be prompt in his application for a copy of the order. A plain reading of Section 12(2) shows that in computing the period of limitation prescribed for an appeal, the day on which the judgment or order complained of was pronounced and the time taken by the Court to make available the copy applied for, have to be excluded. There is no justification for restricting the scope of that provision”.

    If the appellate Courts are required to find out in every appeal filed before them the minimum time required for obtaining a copy of the order appealed from it would be unworkable”.

    The Supreme Court in that case at p. 962 approved the judicial opinion of the Full Bench of the Madras High Court in Panjam V. Thirumala Reddi Vs. C.K. Anavema Reddi and Others, wherein the said Court laid down that in Sec. 12 the words ‘time requisite for obtaining a copy of the decree’ meant the time beyond the party’s control occupied in obtaining the copy which was filed with the memorandum of appeal and not an ideal lesser period which might have been occupied if the application for the copy had been filed on some other date

    37. The meaning of the expression “time requisite” in Section 12(2) of the Limitation Act was considered by the Supreme Court in the case of Lala Balmukund (Dead) through Lrs. Vs. Lajwanti and Others, where the Supreme Court at page 1092 observed:–

    “In our opinion the expression “time requisite” as used in Section 12(2) in the phrase in question, means all the time counted from the date of the pronouncement of the judgment (the same being under Order 20, Rule 7, Civil P. C., the date of the decree) which would be properly required for getting a copy of the decree, including the time which must ex necessitas elapse in the circumstances of the particular case, before a decree is drawn up and signed. If any period of the delay in preparing the decree was attributable to the default or negligence of the appellant, the latter shall not be entitled to the exclusion of such period u/s 12(2) of the Limitation Act, 1908″.

    It is true that the said observation of the Supreme Court was made in connection with Section 12 (2) of the Limitation Act, 1908 but considering the fact that very little in the language of Sub-section (2) of the said section as enacted in 1963 Act has undergone any change and is substantially the same (except with regard to a little change which does not concern us), we are of the view that the same applies on all fours in respect of the said provision of the new Act as well. That being so, what is material for our consideration is the time property required for getting a copy of the decree in the facts and circumstances of each particular case and in respect whereof there would be no default or negligence on the part of the appellant. Applying the said principles as enunciated by the Supreme Court to the facts of the case before us it cannot be said that the time taken for obtaining the certified copy of the decree herein was not properly required for getting the same or that there was any default or negligence of the appellant in getting the same within the said period

    38. The position has also been made clear by the latest Supreme Court decision on this point in the case of the The Commissioner of Sales Tax, U.P. Vs. Madan Lal Das and Sons, Bareilly, . This decision interpreted Section 12(2) of the Limitation Act 1963 and following its earlier decision in the case of State of Uttar Pradesh Vs. Maharaj Narain and Others, the Supreme Court observed that the expression “time requisite” in Section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order.

    39. Lastly we should refer to a passage in the said Supreme Court decision in Lala Balmukund (Dead) through Lrs. Vs. Lajwanti and Others, where at page 1092 the Supreme Court observed:

    “The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it”.

    In this case we are satisfied that the recorded advocates of the appellant were all throughout conscious of the fact that their client was to file the certified copy of the decree within the time as undertaken by her viz., within the period of limitation and with that end in view from time to time, they have tried to get leave of the Registrar to obtain the same by filing the decree even before payment of deposition fees and the stamps payable to connection therewith but they did not obtain such leave from the Registrar. When they were intimated about the deposition fees it was no doubt a very heavy sum for which they prayed for time to file their client’s paper book but at the same time they were aware of the fact that they were to file the deposition. as quickly as possible so that they could be in time to file the certified copy of the decree within the period of limitation, We are satisfied that the appellant cannot be said to be guilty of any laches or negligence in the matter of obtaining the certified copy of the decree and in filing the same in the facts and circumstances of this case.

    40. Judging from that point of view, in our opinion, such certified copy of the decree in this case has been filed within the period of limitation and, accordingly, the undertaking has been complied with and it cannot be held that there was any breach of such undertaking. Accordingly, we are of the view that the appeal is not barred by limitation and the respondent applicant herein is not entitled to any relief in this application. We, accordingly, dismiss the application and make costs costs in the appeal.

    41. In view of our decision as aforesaid, it is not necessary to make any order in the application made by the appellant u/s 5 of the Limitation Act. We, accordingly, make no order thereon except that costs thereof would also be costs in the appeal.

    C.K. Banerji, J.

    42. I agree.

    Final Result : Dismissed

Cases Referred

Panjam V. Thirumala Reddi Vs. C.K. Anavema Reddi and Others, AIR 1934 Mad 306 : (1934) ILR (Mad) 560 : (1934) 39 LW 559 : (1934) 66 MLJ 687
State of Uttar Pradesh Vs. Maharaj Narain and Others, AIR 1968 SC 960 : (1968) CriLJ 1132 : (1968) 70 PLR 799 : (1968) 2 SCR 842
Lakshmi Rattan Engineering Works Ltd. Vs. Asstt. Commr. Sales Tax, Kanpur and Another, AIR 1968 SC 488 : (1968) 1 SCR 505 : (1968) 21 STC 154
Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others, AIR 1961 SC 832 : (1961) 2 SCR 918
Lala Balmukund (Dead) through Lrs. Vs. Lajwanti and Others, AIR 1975 SC 1089 : (1975) 1 SCC 725 : (1975) SCR 44 Supp : (1975) 7 UJ 357
The Commissioner of Sales Tax, U.P. Vs. Madan Lal Das and Sons, Bareilly, AIR 1977 SC 523 : (1976) 4 SCC 464 : (1977) 1 SCR 683 : (1976) 38 STC 543 : (1976) 8 UJ 935

 

How to compute Limitation for filing appeal if applied for Certified Copy of the order

“However, the applicant is entitled to have the period of deduction computed from the date the application for a certified copy of the decree is made, till it is delivered, provided the application is filed within the period prescribed for filing the appeal, and no part of this period is due to any lapse on the part of the applicant, such as failure to supply copying sheets or deposit the cost of a certified copy within the time stipulated and failure to collect a copy on the date fixed for taken delivery of the same, irrespective of the fact whether on the date of filing of the application, the decree was signed or not”. Continue reading

Punjab National Bank and others Versus Surendra Prasad Sinha [ALL SC 1992 APRIL]

Keywords:- Limitation-Time barred Debt-

  • The rules of limitation are not meant to destroy the rights of the parties. S. 3 of the Limitation Act 36.of 1963, for short “the Act” only bars the remedy, but does not destroy the right which the remedy relates to. The right to the debt continues to exist notwithstanding the remedy is barred by the limitation. Only exception in which the remedy also becomes barred by limitation if the right is destroyed. For example under S. 27 of the Act a suit for possession of any property becoming barred by limitation if the right to property itself is destroyed. Except in such cases which are specially provided under the right to which remedy relates in other case the right subsists. Though the right to enforce the debt by judicial process is barred under S. 3 read with the relevant Article in the Schedule, the right to debt remains. The time barred debt does not cease to exist by reason of S. 3. That right can be exercised in any other manner than by means of a suit. The debt is not extinguished, but the remedy to enforce the liability is destroyed. What S. 3 refers is only to the remedy but not to the right of the creditors. Such debt continues to subsist so long as it is not paid.

 

AIR 1992 SC 1815 : (1992) 2 SCR 528 : (1993) 1 Suppl. SCC 499 : JT 1992 (3) SC 46 : (1992) 1 SCALE 926 : (1992) CriLJ SC 2916

(SUPREME COURT OF INDIA)

Punjab National Bank and others Appellant
Versus
Surendra Prasad Sinha Respondent

(Before: K. Ramaswamy And B. P. Jeevan Reddy, JJ.)

Criminal Appeal No.254 of 1992, Decided on: 20-04-1992.

Issue of process—Juristic person—Duty of Magistrate to ascertain as to whether the officer of Corporation were legally responsible for the offence charged or not.

The complaint was laid, impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance.

Penal Code, 1860—Section 409—Criminal breach of trust—Banker lien—Debt barred by limitation—Bank adjusting the amount due under fixed deposits of guarantor towards the time barred debt—It does not constitute criminal breach of trust.

Criminal Procedure Code, 1973—Section 204—Issue of process—Juristic person—Duty of Magistrate to ascertain as to whether the officer of Corporation were legally responsible for the offence charged or not.

Counsel for the Parties:

Mr. G.L. Sanghi, Sr. Advocate, Mr. Dhruv Mehta, Mr. Aman Vachher and Mr. S. K. Mehta, Advocates with him, for Appellants.

Judgment

K. Ramaswamy, J—Special leave granted.

2. Though the respondent was served on July 29, 1991, neither appeared in person, nor through counsel. The facts set out in the complaint eloquently manifests on its face a clear abuse of the process of the Court to harass the appellants. The respondents, an Advocate and Standing Counsel for the first appellant filed a private complaint in the Court of Addl. Chief Judicial Magistrate, Katni in C.C. No. 933/91 for offences under S. 409 and Ss. 109/114, I.P.C. The facts stated in the complaint run thus:

The first appellant’s branch at Katni gave a loan of ` 15,000/- to one Sriman Narain Dubey on May 5, 1984 and the respondent and his wife Annapoorna stood as guarantors, executed Annexure ‘P’ “security bond” and handed over Fixed Deposit Receipt for a sum of ` 24,000 / -, which would mature on November 1, 1988. At maturity its value would be at Rupees 41,292/-. The principal debtor committed default in payment of the debt. On maturity, the Branch Manager, 5th appellant, Sri V. K. Dubey, adjusted a sum of ` 27,037.60 due and payable by the principal debtor as on December, 1988 and the balance sum of Rupees 14,254.40 was credited to the Saving Banks Account of the respondent. The respondent alleged that the debt became barred by limitation as on May 5, 1987. The liability of the respondent being coextensive with that of the principal debtor, his liability also stood extinguished as on May 5, 1987. Without taking any action to recover the amount from the principal debtor within the period of limitation, on January 14, 1989, Sri D. K. Dubey, the Branch Manager, intimated that only Rupees 14,254.40 was credited to his Saving Bank Account No. 3763. The entire amount at maturity, namely Rupees 41,292/- ought to have been credited to his account and despite repeated demands made by the respondent it was not credited. Thereby the appellants criminally embezzled the said amount. The first appellant with a dishonest interest (intent) to save themselves from the financial obligation neglected to recover the amount from the principal debtor and allowed the claim to be barred limitation and embezzled the amount entrusted by the respondent. The appellants 2 to 6 abeted the commission of the crime in converting the amount of ` 27,037.40 to its own use in violation of the specific direction of the respondent. Thus they committed the offences punishable under S. 409 and Ss. 109 and 114, I.P.C.

3. The security bond, admittedly, executed by the respondent reads the material parts thus:”We confirm having handed over to you by way of security against your branch office Katni F.D. Account No. 77/ 83 dated November 1, 1983 for ` 24,000/ – in the event of renewal of the said Fixed Deposit Receipt as security for the above loan.” “We confirm….. the F.D.R. will continue to remain with the bank as security here.” “The amount due and other charges, if any, be adjusted and appropriated by you from the proceeds of the said F.D.R. at any time before, on or its maturity at your discretion, unless the loan is otherwise fully adjusted from the dues on demand in writing made by you….” “We give the bank right to credit the balance to our saving banks account or any other amount and adjust the amount due from the borrowers out of the same.” “We authorise you and confirm that the F.D.R. pledged a security for the said loan shall also be security including the surplus proceeds thereof for any other liability and the obligation of person and further in favour of the bank and the bank shall be entitled to retain/ realise/ utilise/ appropriate the same without reference to us.”

4. Admittedly, as the principal debtor did not repay the debt. The bank as creditor adjusted at maturity of the F.D.R., the outstanding debt due to the bank in terms of the contract and the balance sum was credited to the Saving Banks Account of the respondent. The rules of limitation are not meant to destroy the rights of the parties. S. 3 of the Limitation Act 36.of 1963, for short “the Act” only bars the remedy, but does not destroy the right which the remedy relates to. The right to the debt continues to exist notwithstanding the remedy is barred by the limitation. Only exception in which the remedy also becomes barred by limitation if the right is destroyed. For example under S. 27 of the Act a suit for possession of any property becoming barred by limitation if the right to property itself is destroyed. Except in such cases which are specially provided under the right to which remedy relates in other case the right subsists. Though the right to enforce the debt by judicial process is barred under S. 3 read with the relevant Article in the Schedule, the right to debt remains. The time barred debt does not cease to exist by reason of S. 3. That right can be exercised in any other manner than by means of a suit. The debt is not extinguished, but the remedy to enforce the liability is destroyed. What S. 3 refers is only to the remedy but not to the right of the creditors. Such debt continues to subsist so long as it is not paid. It is not obligatory to file a suit to recover the debt. It is settled law that the creditor would be entitled to adjust, from the payment of a sum by a debtor, towards the time barred debt. It is also equally settled law that the creditor when he is in possession of an adequate security, the debt due could be adjusted from the security in his possession and custody. Undoubtedly the respondent principal and his wife stood guarantors to the debtor, jointly executed the security bond and entrusted the F.D.R. as security to adjust the outstanding debt from it at maturity. Therefore, though the remedy to recover the debt from the principal debtor is barred by limitation, the liability still subsists. In terms of the contract the bank is entitled to appropriate the debt due and credit the balance amount to the saving bank account of the respondent. Thereby the appellant did not act in violation of any law, nor converted the amount entrusted to them dishonestly for any purpose. Action in terms of the contract express or implied is a negation of criminal breach of trust defined in S. 405 and punishable under S. 409, I.P.C. It is neither dishonest, nor misappropriation. The bank had in its possession the fixed deposit receipt as guarantee for due payment of the debt and the bank appropriated the amount towards the debt due and payable by the principal debtor. Further, the F. D. R. was not entrusted during the course of the business of the first appellant as a Banker of the respondent but in the capacity as guarantor. The complaint does not make out any case much less prima facie case, a condition precedent to set criminal law in motion. The Magistrate without adverting whether the allegation in the complaint prima facie makes out an offence charged for, obviously, in a mechanical manner, issued the process against all the appellants. The High Court committed grave error in declining to quash the complaint on the finding that the bank acted prima facie high handedly.

5. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta.

6. The appeal is accordingly allowed and the complaint is quashed.

Mangu Ram AND OTHERS Versus Municipal Corporation of Delhi [ALL SC 1975 OCTOBER ]

KEYWORDS:- APPLICATION OF SECTION 5 IN CRIMINAL MATTER-

  •  In a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it.

AIR 1976 SC 105 : (1976) 2 SCR 260 : (1976) 1 SCC 392 : (1976) CriLJ SC 179

(SUPREME COURT OF INDIA)

Mangu Ram AND OTHERS Appellant
Versus
Municipal Corporation of Delhi Respondent

(Before : P. N. Bhagwati And R. S. Sarkaria JJ.)

Petns. for Spl. Leave to Appeal (CRL) Nos. 918-919 of 1975, Decided on : 10-10-1975.

Limitation—Condonation of delay—After enforcement of Limitation Act, 1963, an appellant would be entitled to seek condonation of delay even if period of limitation laid down in Cr.P.C. has expired.

The time limit of sixty days laid down in sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of a application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it.

Counsel for the Parties:

Mr. Frank Anthony Sr. Advocate, (Mr. K. C. Dua, Advocate with him), (In SLP No. 918 of 1975)

Mr. C. L Sahu Advocate, (In SLP No. 919 of 1975) for Petitioners; M/s. B. P. Maheshwari and Suresh Sethi, Advocates, for Respondent (In both the Petitions.) .

Judgement

Bhagwati , J—These are two special leave petitions which are being disposed of by us by judgment after hearing both sides. There is only one question of law which arises for determination and since it lies in a very narrow compass and is concluded against the petitioner by the language of the new statutory enactment in Sec. 29(2) of the Limitation Act, 1963, we thought that it would be a futile exercise to grant special leave and then hear the appeals and hence we decided to hear these two special leave petitions after issuing notice to the respondents so that the question of law arising for consideration can be finally determined by a pronouncement of this Court.

2. The petitioner in Special Leave Petition No. 918 of 1975, hereinafter referred to as Mangu Ram, was at all material times a partner in the firm of M/s. Ram Parshad Gondamal, which is the petitioner in Special Leave Petition No. 919 of 1975. The firm of M/s. Ram Parshad Gondamal owned a shop in Kharibaoli, Delhi where it sold inter alia Phool Gulab. On 8th August, 1969, the Food Inspector of the Municipal Corporation of Delhi purchased two samples of Phool Gulab from the shop of the firm of M/s. Ram Parshad Gondamal for analysis after complying with the procedure prescribed by law, and each sample was divided into three parts, out of which one part was sent to the Public Analyst for analysis, the other was retained by the Food Inspector and the third was handed over to Mangu Ram who sold the samples on behalf of the firm of M/s. Ram Parshad Gondmal. The first sample was marked O.P.K. 169 and the second was marked O.P.K. 170. It was found from the report of the analysis made by the Public Analyst that both samples O.P.K. 169 and O.P.K. 170 were adulterated and hence the Municipal Corporation of Delhi filed two complaints, one in respect of each sample, against Mangu Ram and the firm of M/s Ram Parshad Gondamal in the Court of the Judicial Magistrate, 1 st Class, Delhi for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. These two complaints were consolidated and tried together by the learned Judicial Magistrate. During the course of the trial, on an application made by the Mangu Ram and the firm of M/s Ram Parshad Gondamal, one part of each of the two samples lying with them was sent by the learned Judicial Magistrate to the Director, Central Food Laboratory for analysis as required by Section 13, sub-section (2) of the Act. The Director, Central Food Laboratory, analyzed the two samples sent to him and issued a certificate in respect of each of them showing the result of the analysis. The certificate in respect of sample O.P.K. 169 showed the presence of Tartrazine indigo. Carmine which was then a non-permitted Coal Tar dye, but subsequently permitted by reason of amendment of rule 29 of the Prevention of Food Adulteration Rules, 1955, while the certificate in respect of sample O.P.K. 170 revealed the presence of Rhodamine B, which was at all times a non-permitted coal tar dye. The learned Judicial Magistrate, in view of these certificates of the Director, Central Food Laboratory, came to the conclusion that both the samples sold by Mangu Ram on behalf of the firm of M/S Ram Pershad Gondmal were adulterated, but since Phool Gulab of these two samples was purchased by the firm of M/s Ram Parshad Gondmal from M/s Venkateshwara and Co. which was a large manufacturing concern and hence presumably a lincensed manufacturer the learned Judicial Magistrate held that Mangu Ram and the firm of M/s Ram Parshad Gondamal were entitled to the benefit of Section 19 sub-s. (2) of the Act and accordingly acquitted them by an order dated 18 th March, 1971.

3. The Municipal Corporation of Delhi, being aggrieved by the order of acquittal, made an application to the High Court of Delhi under Section 417 sub-section (3) of the Code of Criminal Procedure, 1898 for special leave to appeal from the order of acquittal. Sub-section (4) of Section 417 required that the application for special leave should be made before the expiry of sixty days from the date of the order of acquittal and, therefore, after excluding the time taken in obtaining certified copy of the order of acquittal, the application for special leave should have been filed on 25 th August, 1971, but it came to be filed two days late namely, on 27 th August, 1971. The Municipal Corpn. of Delhi, therefore, made an application for condonation of delay by invoking Sec.5 of the Limitation Act, 1963 and pleaded that there was sufficient cause which prevented it from making the application for special leave within time. The High Court by an order dated 3 rd November 1971 condoned the delay as there was in its opinion sufficient cause for not making the application for special leave within the time prescribed by sub-section (4) of Section 417 and, taking the view that this was a fit case which deserved the exercise of discretion under sub-section (3) of Section 417, the High Court granted special leave to the Municipal Corporation of Delhi to appeal against the order of acquittal.

4. The appeal was thereafter heard by a Division Bench of the High Court. The High Court took the view that there was no evidence on record to show that M/s Venkateshwara and Co from whom Phool Gulab was purchased by the firm of M/s Ram Parshad Gondmal was a licensed manufacturer, nor was there any written warranty in the prescribed form obtained by the firm of M/s Ram Pershad Gondmal from M/s Venkateshwara and Co. and hence the defence under S. 19 sub-s. (2) was not available to Mangu Ram and the firm of M/s. Ram Pershad Gondmal. Since the certificates issued by the Director, Central Food Laboratory showed unmistakably the presence of non-permitted coal tar dye in both the samples, there was no doubt said the High Court that the two samples were adulterated and in this view the High Court set aside the acquittal of Mangu Ram and the firm of M/s. Ram Pershad Gondamal and convicted them of the offence under Section 7 read, with Sec. 16 of the Act for selling adulterated samples of Phool Gulab to the food Inspector. The sentence imposed for the offence in respect of sample O. P. K 169 was only a sentence of fine since coal tar dye found in that sample subsequently came to be permitted by the amendment of Rule 29, but so far the offence in respect of sample O. P. K. 170 was concerned, Mangu Ram was sentenced to suffer six months rigorous imprisonment and to pay fine of ` 1,000/- or in default to suffer rigorous imprisonment for a further period of three months while the firm of M/s. Ram Parshad Gondamal was sentenced to pay a fine of Rs.1000/-. Mangu Ram and the firm of M/s. Ram Parshad Gondamal thereupon filed the present petitions for special leave to appeal against the order of conviction and sentence passed against them.

5. There was nothing that could be said on behalf of Mangu Ram and the firm of M/s. Ram Pershad Gondamal on the merits of the conviction and sentence since the certificates of the Director Central Food Laboratory clearly showed the presence of non-permitted coal tar dye in both the samples, and it was impossible to contend that the two samples were not adulterated. The only argument which could be advanced on their behalf was – and that was the only argument pressed before us – that the time limit of sixty days prescribed in sub-s. (4) of Section 417 for the making of an application for special leave under sub-section (3) of that section was a mandatory and inexorable time limit which could not be relieved again or relaxed and it excluded the applicability of Section 5 of the Limitation Act, 1963. It was urged that having regard to the clear and specific language of sub-s. (4) of Section 417 which left no scope for doubt or ambiguity, the High Court was statutorily obliged to reject an application for special leave made after the expiry of sixty days from the date of the order of acquittal and it had no jurisdiction to extend this time limit of sixty days by resort to Section 5 of the Limitation Act 1963. This contention was sought to be supported by reference to a decision of this Court in Kaushalya Rani v. Gopal Singh, AIR 1964 SC 260. Now, prima facie, it might seem at first blush that the decision in Kaushalya Rani’s case (supra) is directly applicable in the present case and clinches the decision of the issue in favour of Mangu Ram and the firm of M/s. Ram Pershad Gondamal. But a closer scrutiny will reveal that it is not so. The decision in Kaushalya Rani’s case (supra) is clearly distinguishable from. the present case.

6. The question which arose for consideration in Kaushalya Rani’s case (supra) was apparently the same as in the present case, namely, whether the time limit of sixty days prescribed in sub-s. (4) of Sec. 417 for making an application for special leave under sub-s. (3) of that section could be extended by invoking Section 5 of the Indian Limitation Act 1908. This Court held that sub-section (4) of Section 417 laid down a special period of limitation for an application by a complainant for special leave to appeal against an order of acquittal and

“in that sense, this rule of sixty days bar is a special law, that is to say, a rule of limitation which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appeals or applications.”

This Court pointed out that since the special rule of limitation laid down in sub-section (4) of S. 417 of the Code is a special law of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that Section 5 of the Limitation Act is wholly out of the way, in view of Section. (2) (b) of the Limitation Act”. The applicability of Section 5 of the Indian Limitation Act, 1908 was thus held to be excluded in determining the period of limitation of sixty days prescribed in sub-section (4) of Section 417 by reason of Section 29 (2) (b) of that Act which provided in so many terms that “for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the remaining provisions of this Act” that is sections other than Secs. 4, 9 to l8 and 22 “shall not apply”. Now, there can be no doubt that if the present case were governed by the Indian Limitation Act, 1908, this decision would wholly apply and Municipal Corporation of Delhi would not be entitled to invoke the aid of Section 5 of that Act for the purpose of extending the period of limitation of sixty days prescribed in sub-s.(4) of Section 417 for an application by a complainant for special leave to appeal against an order of acquittal. But the Indian Limitation Act. 1908 has clearly no application in the present case, since that act is repealed by the limitation Act 1963 which came in to force with effect front 1st January , 1964 and the present case must, therefore, be decided by reference to the provisions of the Limitation Act, 1963.

7. There is an important departure made by the Limitation Act 1963 in so far as the provision contained in Section 29, sub-section (2) is concerned. Whereas under the Indian Limitation Act , 1908 Section 29 sub- section (2) , cl. (b) provide that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than those contained in Sections 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of Section 5 was in clear and specific terms excluded. Section 29, sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit appeal or application by any special for local law the provisions contained in Sections 4 to 24, which would include Section 5, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. S. 29, sub-s. (2), cl. (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of Section 5, while Section 29, sub-section (2) of the Limitation Act, 1963 in clear and unambiguous terms provides for the applicability of Section 5 and the ratio of the decision in Kaushalya Rani’s case (supra) can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability of Section 5 was excluded by reason of Section 29 (2)(b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963 Section 5 is specifically made applicable by Section 29, sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. Here, as pointed out by this Court in Kaushalya Rani’s case (supra) the time limit of sixty days laid down in sub-section (4) of Section 417 is a special law of Limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. The High Court, in the present case, did not, therefore, act without jurisdiction in holding that the application preferred by the Municipal Corporation of Delhi was not barred by the time limit of sixty days laid down in sub-section (4) of Section 417 since the Municipal Corporation of Delhi had sufficient cause for not preferring the application within such time limit. The order granting special leave was in the circumstances not an order outside the power of the High Court .

8. We do not, therefore, see any reason to grant special leave to Mangu Ram and the firm of M/s. Ram Pershad Gondamal to appeal against the order of the High Court and we accordingly dismiss the petitions for special leave filed by them.

M/s. Consolidated Engineering Enterprises Versus Principal Secretary, (Irrigation Department) and OTHERS [ ALL SC 2008 APRIL]

KEYWORDS:- APPLICABILITY OF LIMITATION LAW IN ARBITRATION

AIR 2008 SCW 4182 : JT 2008 (6) SC 22 : (2008) 6 SCALE 748 : (2008) 7 SCC 169

(SUPREME COURT OF INDIA)

M/s. Consolidated Engineering Enterprises Appellant
Versus
Principal Secretary, (Irrigation Department) and OTHERS Respondent

WITH

Hatti Gold Mines Co. Ltd. Appellant
Versus
Vinay Heavy Equipments Respondent

(Before : K. G. Balakrishnan, C.J.I. R. V. Raveendran And J. M. Panchal, JJ.)

Civil Appeal Nos.2461 with 2462 of 2008 (arising out of SLP (C) Nos. 10311 with 15619 of 2005, Decided on : 03-04-2008.

Arbitration and Conciliation Act, 1996—Sections 34 and 43—Delay—Limitation Act, 1963—Sections 5 and 14—Application of—Provisions have to be interpreted so as to advance the cause of justice rather than abort the proceedings—Principle of exclusion of time spent in bona fide litigious activity can be applied to the proceedings under the Act—Held: That provisions of Section 14 of Act of 1963 apply to the proceedings.

Counsel for the Parties:

R. F. Nariman, Sr. Advocate, Joseph Poockatt, Nikhil Majithia, Prashant Kumar, A. S. Bhasme, Varun Thakur, Hage Lampu and Sanjay R. Hegde, with him for the appearing parties.

Judgment

Raveendran, J—I respectfully agree with the judgment proposed by learned Brother Panchal, J. Having regard to the importance of the issue, I am add ing a few of my own reasons.

2. Two questions of law arise for our consideration :

(i) Whether Limitation Act, 1963 is inapplicable to a proceeding in a court, under the Arbitration and Conciliation Act, 1996?

(ii) Even if Limitation Act, 1963 is applicable, whether applicability of section 14 of the said Act is excluded to proceedings under section 34(1) of the Arbitration and Conciliation Act, 1996?

Re : Question No. (i) :

3. Learned counsel for the appellant contended that the Arbitration and Concili ation Act, 1996 (AC Act for short) is a self-contained Code relating to arbitration and all matters incidental thereto including limitation. He submitted that section 34(3) of AC Act prescribes the period of limitation for an application for setting aside the arbitral award, when such period can be extended and the limit to which it could be extended. Section 43 of the AC Act makes the provisions of the Limitation Act, 1963 (‘Limitation Act’ for short) applicable only to proceedings in arbitration and not to proceedings in court. Therefore, the provisions of Limitation Act are inapplicable to proceedings in a court under the AC Act.

4. To decide this question, reference to the relevant provisions of the AC Act and Limitation Act is necessary.

4.1) Part I of AC Act relates to arbitration. It contemplates a party approaching a court in three circumstances :

(a) for grant of interim measures under section 9;

(b) for setting aside an arbitral award, under section 34(1; and

(c) for filing appeals under section 37.

As section 9 deals with applications for interim measures, the question of limitation does not arise. In regard to applications for setting aside an award under sub-section (1) of section 34, sub-section (3) thereof prescribes a limitation of three months, different from the period of one month prescribed in the Schedule to the Limitation Act. Section 37 does not prescribe any period of limitation for filing appeals. If Limitation Act is inapplicable to court proceedings under AC Act, there will be no limitation for filing appeals under section 37. If Limitation Act is applicable, the period of Limitation for appeals filed under section 37 of AC Act will be governed by Article 116 of the Schedule to the Limitation Act.

4.2) Section 43 of the AC Act, relates to limitation and it is extracted below :

“43. Limitation. – (1) The Limitation Act, 1963 (36 of 1963, shall apply to arbi trations as it applies to proceedings in Court.

(2) For the purposes of this section and the Limitation Act, 1963 (36 of 1963, an arbitration shall be deemed to have commenced on the date referred in section 21.

(3) Where an arbitration agreement to submit future disputes to arbitration pro vides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and not withstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper.

(4) Where the court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963, for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.”

Section 2(1)(e) of the Act defines ‘Court’ as follows :

“2(1)(e). ‘Court’ means the principal Civil Court of original jurisdiction in a dis trict, and includes the High Court in exercise of its ordinary original civil jurisdic tion, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes.”

4.3) Let me next refer to the relevant provisions of Limitation Act. Section 3 of the Limitation Act provides for the bar of limitation. It provides that subject to the provisions contained in sections 4 to 24 (inclusive, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Prescribed period” means that period of limitation computed in accordance with the provisions of the Limitation Act. ‘Period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the Schedule to the Limitation Act (vide section 2(j) of the said Act). Section 29 of Limitation Act relates to savings. Sub-section (2) thereof which is relevant is extracted below :

“29(2) Where any special or local law prescribes for any suit, appeal or applica tion a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purposes of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions con tained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.”

4.4) Article 116 of the Schedule prescribes the period of limitation for appeals to High Court (90 days) and appeals to any other court (30 days) under the Code of Civil Procedure, 1908. It is now well settled that the words ‘appeals under the Code of Civil Procedure, 1908’ occurring in Article 116 refer not only to appeals preferred under Code of Civil Procedure, 1908, but also to appeals, where the procedure for filing of such appeals and powers of the court for dealing with such appeals are governed by Code of Civil Procedure (See decision of the Constitution Bench in Vidyacharan Shukla vs. Khubchand Baghel – AIR 1964 SC 1099). Article 119 (b) of the Schedule prescribes the period of limitation for filing an application (under Ar bitration Act, 1940, for setting aside an award, as thirty days from the date of ser vice of notice of filing of the award.

5. AC Act is no doubt, a special law, consolidating and amending the law relating to arbitration and matters connected therewith or incidental thereto. AC Act does not prescribe the period of limitation, for various proceedings under that Act, except where it intends to prescribe a period different from what is prescribed in the Limi tation Act. On the other hand, Section 43 makes the provisions of Limitation Act, 1963 applicable to proceedings – both in court and in arbitration – under the AC Act. There is also no express exclusion of application of any provision of the Limi tation Act to proceedings under AC Act, but there are some specific departures from the general provisions of Limitation Act, as for example, the proviso to section 34(3) and sub-sections (2) to (4) of section 43 of the AC Act.

6. Where the Schedule to the Limitation Act prescribes a period of limitation for appeals or applications to any court, and the special or local law provides for filing of appeals and applications to the court, but does not prescribe any period of limita tion in regard to such appeals or applications, the period of limitation prescribed in the Schedule to the Limitation Act will apply to such appeals or applications and consequently the provisions of sections 4 to 24 will also apply. Where the special or local law prescribes for any appeal or application, a period of limitation different from the period prescribed by the Schedule to the Limitation Act, then the provisions of section 29(2) will be attracted. In that event, the provisions of section 3 of Limitation Act will apply, as if the period of limitation prescribed under the special law was the period prescribed by the Schedule to Limitation Act, and for the pur pose of determining any period of limitation prescribed for the appeal or application by the special law, the provisions contained in sections 4 to 24 will apply to the extent to which they are not expressly excluded by such special law. The object of section 29(2) is to ensure that the principles contained in sections 4 to 24 of Limita tion Act apply to suits, appeals and applications filed in a court under special or local laws also, even if it prescribes a period of limitation different from what is prescribed in the Limitation Act, except to the extent of express exclusion of the application of any or all of those provisions.

7. It may be noticed at this juncture that the Schedule to the Limitation Act prescribes the period of limitation only to proceedings in courts and not to any pro ceeding before a Tribunal or quasi-judicial authority. Consequently section 3 and section 29(2) of Limitation Act will not apply to proceedings before Tribunal. This means that the Limitation Act will not apply to appeals or applications before Tribu nals, unless expressly provided.

8. Learned counsel for the appellant contended that section 43 of the AC Act makes applicable the provisions of Limitation Act only to arbitrations, thereby ex pressing an intent to exclude the application to any proceedings relating to arbitra tion in a court. The contention of appellant ignores and overlooks section 29(2) of the Limitation Act and section 43(1) of the AC Act. Sub-section (1) of section 43 of the Act provides that the Limitation Act shall apply to Arbitrations as it applies to proceedings in court. The purpose of section 43 of AC Act is not to make Limitation Act inapplicable to proceedings before court, but on the other hand, make Limita tion Act applicable to arbitrations. As already noticed, the Limitation Act applies only to proceedings in court, and but for the express provision in section 43, the Limitation Act would not have applied to arbitration, as Arbitrators are Private Tri bunals and not courts. Section 43 of the AC Act, apart from making the provisions of Limitation Act, 1963 applicable to arbitrations, reiterates that Limitation Act ap plies to proceedings in court. Therefore, the provisions of Limitation Act, 1963 apply to all proceedings under the AC Act, both in court and in arbitration, except to the extent expressly excluded by the provisions of the AC Act.

Re : Question No. (ii) :

9. The learned counsel for the appellant next contended that even if Limitation Act applied, section 14 is excluded by reason of the proviso to section 34(3) and at best, prosecution before a wrong forum can be considered as a sufficient cause for explaining the delay, in which event condonation cannot be for a period in excess of 30 days. He submitted that sub-section (3) of section 34 prescribes the period of limitation for an application to set aside an award as three months, and the proviso thereto provides for extension of such period of limitation, by a period not exceed ing one month. He pointed out that the object of the AC Act is to expedite arbitration proceedings with minimal judicial intervention as is evident from Section 5 of that Act. He further submitted that the legislature, while incorporating a provision for extension of time for an application under section 34(1) of AC Act, on sufficient cause being shown, did not choose to incorporate any provision for excluding the time spent before a wrong court, and therefore, section 14 of the Limitation Act, 1963 is inapplicable; and even if the principle underlying section 14(2) of Limita tion Act is held to be applicable, as a sufficient cause for extension of the period of limitation, the extension on that ground can be only for a period not exceeding thirty days as provided in the proviso to sub-section (3) of section 34 of the AC Act. In Supplort of the aforesaid contentions, reliance is placed on the decisions of this Court in Commissioner of Sales Tax, U.P. V.Parson Tools and Plants, Kanpur (1975) 3 SCR 743, Union of India vs. Popular Construction Co. (2001) 8 SCC 470 ) and Fairgrowth Investments Ltd vs. Custodian (2004) 11 SCC 472. The Appellant also contended that the decision rendered by two Judges Bench of this Court in State of Goa vs. Western Builders (2006) 6 SCC 239 ) holding that section 14 of Limitation Act applied to applications under section 34 of the AC Act was not good law as it failed to notice the earlier decision of a larger Bench in Parson Tools and failed to follow Popular Construction.

10. The respondents, on the other hand, contended that having regard to sec tion 29(2) of the Limitation Act, provisions of sections 4 to 24 of that Act would apply for determining the period of limitation prescribed for an application under any special law, unless expressly excluded by such special law. The AC Act, which is a special law, prescribes a period of limitation for an application to set aside an award, different from what was prescribed under the Limitation Act. It also excludes application of section 5 of the Limitation Act to an application under section 34(1, by making an express provision in the proviso to section 34(3, for extension of period of limitation. Sections 4 and 6 to 24 of the Limitation Act would however apply to an application under section 34(1) of the AC Act, as they are not excluded. Respondents also contended that the question is squarely covered by the decision of this Court in State of Goa vs. Western Builders (2006) 6 SCC 239. They submitted that the decisions in Popular Construction (su pra) and Fairgrowth (supra) are inapplicable, as they deal with section 5 and not section 14 of the Limitation Act. They also contended that the decision in Parson Tools did not relate to a proceeding before a court, but a proceeding before a Tribunal.

11. Section 34 of AC Act relates to applications for setting aside an arbitral award. Sub-section (1) provides that recourse to a court against an arbitral award may be made only by an application for setting aside such an award in accordance with sub -sections (2) and (3). Sub-section 2 contains the grounds on which an arbitral award can be set aside. Sub-section (3) which is relevant is extracted below :

“34(3). An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal :

Provided that if the Court is satisfied that the applicant was prevented by suffi cient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereaf ter.”

11.1. Section 5 of Limitation Act, providing for extension of prescribed period in certain cases, reads thus :

“5. : Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.”

**********

11.2. Section 14 of Limitation Act relates to exclusion of time of proceeding bona fide in court without jurisdiction. Sub-section (2) thereof relevant for our pur pose is extracted below :

“14(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceed ing, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like na ture, is unable to entertain it.”

12. Sub-section (3) of section 34 of the AC Act prescribes the period of limita tion for filing an application for setting aside an award as three months from the date on which the applicant has received the arbitral award. The proviso thereto vests in the court, discretion to extend the period of limitation by a further period not ex ceeding thirty days if the court is satisfied that the applicant was prevented by suffi cient cause for not making the application within three months. The use of the words “but not thereafter” in the proviso makes it clear that even if a sufficient cause is made out for a longer extension, the extension cannot be beyond thirty days. The purpose of proviso to section 34(3) of AC Act is similar to that of Section 5 of the Limitation Act which also relates to extension of the period of limitation prescribed for any application or appeal. It vests a discretion in a court to extend the prescribed period of limitation if the applicant satisfies the court that he had sufficient cause for not making the application within the prescribed period. Section 5 of Limitation Act does not place any outer limit in regard to the period of extension, whereas the proviso to sub-section (3) of section 34 of the AC Act places a limit on the period of extension of the period of limitation. Thus the proviso to sub-section 34(3) of the AC Act is also a provision relating to extension of period of limitation, but differs from section 5 of the Limitation Act, in regard to period of extension, and has the effect of excluding section 5 alone of the Limitation Act.

13. On the other hand, Section 14 contained in Part III of Limitation Act does not relate to extension of the period of limitation, but relates to exclusion of certain period while computing the period of limitation. Neither sub-section (3) of section 34 of the AC Act nor any other provision of the AC Act exclude the applicability of section 14 of the Limitation Act to applications under section 34(1) of the AC Act. Nor will the proviso to section 34(3) exclude the application of section 14, as sec tion 14 is not a provision for extension of period of limitation, but for exclusion of certain period while computing the period of limitation. Having regard to section 29(2) of Limitation Act, section 14 of that Act will be applicable to an application under section 34(1) of the AC Act. Even when there is cause to apply section 14, the limitation period continues to be three months and not more, but in computing the limitation period of three months for the application under section 34(1) of the AC Act, the time during which the applicant was prosecuting such application before the wrong court is excluded, provided the proceeding in the wrong court was pros ecuted bona fide, with due diligence. Western Builders therefore lays down the correct legal position.

14. Reliance placed by the appellant on the decision of three Judges of this Court in Parson Tools (supra) is totally misplaced. That decision re lated to section 10(3B) of the U. P. Sales Tax Act, 1958 which provided a limitation period of one year for invoking the revisional jurisdiction and further provided that the revising authority may on sufficient cause being shown, entertain an application within a further period of six months. The appellant con tended that section 10(3B) of the U.P. Sales Tax Act considered in Parsons Tools is similar to proviso to section 34(3) of the AC Act and therefore the following obser vations in Parson Tools, with reference to section 10(3B) of U. P. Sales Tax Act, making section 14(2) of the Limitation Act inapplicable to a revision under section 10(3B) of U. P. Sales Tax Act, would also make section 14(2) inapplicable, to an application under section 34(1) of the AC Act :

“Three features of the scheme of the above provision are noteworthy. The first is the no limitation has been prescribed for the suo motu exercise of its jurisdiction by the Revising Authority. The second is that the period of one year prescribed as limi tation for filing an application for revision by the aggrieved party is unusually long. The third is that the Revising Authority has no discretion to extend this period be yond a further period of six months, even on sufficient cause shown. As rightly pointed out in the minority judgment of the High Court, pendency of proceedings of the nature contemplated by section 14(2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but S. 10 (3-B) of the Sales Tax Act, gives no jurisdiction to the Revising Authority to extend the limitation, even in such a case, for a further period of more than six months.”

“………..We are of the opinion that the object, the scheme and language of S.10 of the Sales-Tax Act do not permit the invocation of S.14(2) of the Limitation Act, either, in terms, or, in principle, for excluding the time spent in prosecuting proceed ings for setting aside the dismissal of appeals in default, from computation of the period of limitation prescribed for filing a revision under the Sales-tax. “

[Emphasis   Supplied )

The said observations have to be read and understood with reference to the issue that was being considered in that case. In Parson Tools, this court did not hold that section 14(2) was excluded by reason of the wording of section 10(3B) of the Sales Tax Act. This Court was considering an appeal against the Full Bench decision of the Allahabad High Court. Two Judges of the High Court had held that the time spent in prosecuting the application for setting aside the order of dismissal of appeals in default, could be excluded when computing the period of limitation for filing a revision under section 10 of the said Act, by application of the principle underlying section 14(2) of the Limitation Act. The minority view of the third Judge was that the revisional authority under section 10 of the U P Sales Tax Act did not act as a court but only as a Revenue Tribunal and therefore the Limitation Act did not apply to the proceedings before such Tribunal, and consequently neither sec tion 29(2) nor section 14(2) of Limitation Act applied. The decision of the Full Bench was challenged by the Commissioner of Sales Tax before this Court, contending that the Limitation Act did not apply to tribunals, and section 14(2) of Limitation Act as excluded in principle or by analogy. This Court upheld the view that Limitation Act did not apply to Tribunals, and that as the Revisional Authority under section 10 of UP Sales Tax Act was a Tribunal and not a court, Limitation Act was inapplicable. This Court further held that the period of pendency of proceedings before the wrong forum could not be excluded while computing the period of limitation by applying section 14(2) of Limitation Act. This Court however held that by applying the prin ciple underlying section 14(2, the period of pendency before the wrong forum may be considered as a ‘sufficient cause’ for condoning the delay, but then having regard to section 10(3B, the extension on that ground could not extend beyond six months. The observation that pendency of proceedings of the nature contemplated by section 14(2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation and such extension cannot be for a period in excess of the ceiling period prescribed, are in the light of its finding that section 14(2) of Limitation Act was inapplicable to revisions under section 10(3B) of U. P. Sales Tax Act. These observations cannot be interpreted as laying down a proposition that even where section 14(2) of Limitation Act in terms applied and the period spent before wrong forum could therefore be excluded while computing the period of limitation, the pendency before the wrong forum should be considered only as a sufficient cause for extension of period of limitation and therefore, subjected to the ceiling relating to the extension of the period of limitation. As we are concerned with a proceeding before a court to which section 14(2) of Limitation Act applies, the decision in Parson Tools which related to a proceeding before a tribunal to which section 14(2) of Limitation Act did not apply, has no application.

15. The decision in Popular Construction is also of no assis tance. That decision makes it clear that AC Act, 1996 being a special law, and section 34 thereof prescribing a period of limitation different from that prescribed under the Limitation Act and providing a ceiling on the period by which the period of limitation could be extended, the corresponding provisions in the Limitation Act prescribing the period of limitation for filing an application for setting aside an award (Article 119(b) of the Schedule to Limitation Act ) and for extending the period of limitation for sufficient cause (section 5 of the Limitation Act, were inapplicable. It did not relate to applicability of section 14(2) of Limitation Act. Nor did this Court consider the applicability of section 14(2). Therefore, the decision in Popular Construction will not apply. Fairgrowth merely reiterates the principle in Popular Construction in regard to the exclusion of section 5 of Limitation Act, as is evident from the following observations :

“……….the general rule as far as special and local Acts are concerned is that the specified provisions including Section 5 of the Limitation Act will apply provided the special or local Act provides a period of limitation different from that prescribed under the Limitation Act. There is an additional requirement viz. that the special local Act does not expressly exclude the application of the Limitation Act.”

Therefore it has to be held that section 14(2) of the Limitation Act, 1963 is appli cable to proceedings under section 34(1) of the AC Act.

16. I agree that the appeal arising from SLP (C) No. 10311/2005 is to be dis missed and appeal arising from SLP (C) No. 15619/2005 is to be allowed.

17. J.M. PANCHAL, J. :- Civil Appeal No. 2461 of 2008 @ SLP(C) No. 10311/ 2005

Leave granted.

18. The instant appeal is directed against judgment dated April 4, 2005 rendered by the Division Bench of the High Court of Karnataka at Bangalore in Misc. First Appeal No.4465 of 2003, by which, decision dated October 24, 2002 passed by the learned District Judge, Bangalore Rural District, Bangalore in A.S. No. 2 of 2000 dismissing the application submitted by the appellant under Section 34 of the Arbi tration and Conciliation Act, 1996 (the Act for short) as time barred has been set aside and the matter is remanded to the District Court with a direction to proceed further with the matter in accordance with law.

19. The appellant is an enterprise engaged in civil engineering construction as well as development of infrastructure. It entered into an agreement dated January 20, 1989 with the respondent for construction of earthen bund, head sluices and the draft channel of the Y.G. Gudda tank. During the subsistence of the contract, dis putes arose between the parties. Therefore, the appellant invoked Arbitration clause No. 51 of the agreement pursuant to which the disputes were referred to the sole arbitrator for adjudication. The sole arbitrator made his award on April 10, 1999 in favour of the appellant. Feeling aggrieved by the said award, the respondents pre ferred an application dated July 5, 1999 to set aside the award as contemplated by Section 34 of the Act in the court of learned Civil Judge (Senior Division, Ramanagaram, Bangalore Rural District. The said application was registered as A.C. No. 1 of 1999. It was realized by the respondents that an application for setting aside the award should have been filed before the learned Principal District Judge, Banga lore District (Rural). Therefore, the respondents submitted an application on July 26, 2000 in the Court of learned Civil Judge (Senior Division, Ramanagaram with a request to transfer the application made for setting aside the award to the court of learned Principal District Judge (Rural, Bangalore. The learned Civil Judge (Senior Division, Ramanagaram passed an order directing return of the suit records for presentation before the proper court. The respondents collected the papers from the court of learned Civil Judge (Senior Division, Ramanagaram and presented the same in the court of learned Principal District Judge, Bangalore (Rural) on August 21, 2000. The present application for setting aside the award, filed by the respon dents, was numbered as A.S. No. 2 of 2000. The District Court framed preliminary issue for determination which was as under :

“Whether the defendant proves that the present suit is barred by the limitation under Section 34(3) of the Arbitration and Conciliation Act, 1996.” The respondents examined one witness and produced certain documents whereas on behalf of the appellants one witness was examined. After appreciating the evidence and hearing the learned counsel for the parties, the learned District Judge held that the suit/application for setting aside the award, was time barred and dismissed the same by his judgment dated October 24, 2002.

20. Thereupon the respondents invoked appellate jurisdiction of the High Court of Karnataka at Bangalore by filing Misc. First Appeal No.4465 of 2003 under Sec tion 37 of the Act. The issue, namely, whether the provisions of Sections 12 and 14 of the Limitation Act, 1963 are applicable to an application filed under Section 34 of the Act was pending for consideration in other matters also. The appeal filed by the respondents was, therefore, taken up for hearing with other matters. The Division Bench of the High Court of Karnataka was of the view that the learned District Judge, Bangalore Rural District, Bangalore committed an error in holding that Sec tion 14 of the Limitation Act was not applicable to an application submitted under Section 34 of the Act and, therefore, the time taken during which the respondents had been prosecuting in the court of learned Civil Judge (Senior Division, Ramanagaram was not excludable. On facts, the High Court held that there was no lack of bona fide on the part of the respondents and that the respondents had dili gently prosecuted the matter before the other court. In view of these conclusions, the High Court by Judgment dated April 4, 2005 set aside the decision dated October 24, 2002 rendered by the learned District Judge, Bangalore (Rural) in A.S. No.2 of 2000 and has directed the learned District Judge to proceed further with the matter in accordance with law, giving rise to the instant appeal.

Civil Appeal No……… of 2008 @ SLP (C) NO. 1561 9/2005

21. Leave granted.

22. This appeal is directed against the judgment dated April 4, 2005 rendered by the Division Bench of the High Court of Karnataka in W.P. No. 7089 of 2003 by which it is held that Sections 12 and 14 of the Limi tation Act are applicable to an application submitted under Section 34 of the Act, but the appellant is not entitled to exclusion of time as contem plated by Section 14 of the Limitation Act, because the appellant had not prosecuted application for setting aside the award made by the arbitrator, in other courts, with due diligence and in good faith.

23. The appellant is a public sector undertaking of the Government of Karnataka. It had invited tenders by way of public notification for mining and transporting ore from Ajjanahalli mine to Ingaldal. The tender submitted by the respondent was ac cepted on May 10, 1999 and an agreement was entered into between the parties. The respondent was directed to commence the work from May 26, 1999 and to deploy required number of vehicles etc. The respondent did not follow the instructions given by the appellants and, therefore, disputes arose between the parties. The appellant and the respondent mutually agreed to terminate the contract as per the clause men tioned in the contract. The respondent made claim with respect to the works done by it during the subsistence of the contract. The claim was not accepted by the Appellant. Therefore the dispute was referred to the sole arbitrator for adjudication as stipulated by the contract. The arbitrator made his award on March 15, 2002. The appellant filed an application on June 6, 2002 in the court of learned Civil Judge (Senior Division, Chitradurga to set aside the award made by the arbitrator on the footing that the court of learned Civil Judge (Senior Division) was the Principal Civil Court of original jurisdiction in the District and that two other cases, namely, Arbitration Case No. 1/97 and 1/2001 were also pending in the court of learned Civil Judge (Senior Division, Chitradurga. After sometime, the appellant realized that the appropriate court before which an application for setting aside the award should have been made was the court of learned District Judge, Chitradurga. Therefore, the appellant filed an application under order VII, Rule 10A seeking prayer to return the application to it for presentation before the District Court, Chitradurga. The learned Civil Judge (Senior Division, Chitradurga after hearing the learned counsel for the parties directed the appellant to present the application made under Section 34 of the Act before the District Court, Chitradurga by an order dated October 29, 2002 and directed the parties to appear before the learned District Judge on November 21, 2002. In view of the directions given by the learned Civil Judge (Senior Division, Chitradurga the appellant presented the application filed under Section 34 of the Act before the District Court, Chitradurga on November 21, 2002. The respondent raised a preliminary objection regarding jurisdiction of the learned District Judge, Chitradurga to entertain the application submitted under Section 34 of the Act on the ground that the agreement was entered into between the parties within the jurisdic tion of city of Bangalore and, therefore, the City Civil Court, Bangalore had juris diction to entertain the application filed by the appellant. The learned District Judge, Chitradurga by an order dated February 3, 2003 held that he had no jurisdiction to entertain the application submitted by the appellant and accordingly returned the application, for presentation before the appropriate court. The appellant thereafter presented the application for setting aside the award, before the VIth Additional City Civil Court, Bangalore on February 10, 2003 which was registered as an appeal. Along with the appeal, the appellant also filed an application under Section 14 read with Section 5 of the Limitation Act and prayed to exclude the time taken in pros ecuting the proceedings bona fide before the two courts which had no jurisdiction. The learned Judge of City Civil Court, Bangalore dismissed the application, as time barred, by an order dated July 17, 2003. Thereupon the appellant invoked extra ordinary jurisdiction of the High Court of Karnataka under Article 226 of the Con stitution by filing Writ Petition No.7089 of 2003. The questions posed for consider ation of the High Court was, whether the provisions of Sections 12 and 14 of the Limitation Act were applicable to an application filed under Section 34 of the Act and whether the appellant had prosecuted the matter in other courts with due diligence and in good faith. After hearing the learned counsel for the parties, the High Court by Judgment dated April 4, 2005 held that the provisions of Sections 12 and 14 of the Limitation Act are applicable to a proceeding under the Act. However, on appreciation of facts the High Court held that the appellant had not prosecuted the matter in other courts, with due diligence and in good faith. In view of the above mentioned conclusion the High Court has dismissed the writ petition filed by the appellant vide Judgment dated April 4, 2005, giving rise to the instant appeal.

24. This Court has heard the learned counsel for the parties at length and in great detail as well as considered the documents submitted by the parties.

25. The question posed for consideration before the Court is whether the provi sion of Section 14 of the Limitation Act would be applicable to an application sub mitted under Section 34 of the Act of 1996 for setting aside the award made by the arbitrator. In order to resolve the controversy it would be advantageous to refer to certain provisions of the Limitation Act and Section 34 of the Act of 1996. Section 14 and relevant part of S. 29(2) of the Limitation Act, necessary for the purpose of deciding the issue, read as under :

“14. Exclusion of time of proceeding bona fide in court without jurisdiction –

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first or of a appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceed ing, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like na ture, is unable to entertain it.

(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908, the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.

Explanation – For the purpose of this section, –

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted.

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecut ing a proceeding.

(c) misjoining of parties or of cause of action shall be deemed to be a cause of a like nature with defect of jurisdiction.”

“29(2). Where any special or local law prescribes for any suit, appeal or applica tion a period of limitation different from the period prescribed by the Schedule, the provision of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” However, Section 34 of the Arbitration and Conciliation Act, 1996 reads as under :

“34. Application for setting aside arbitral award. –

(1) Recourse to a Court against an arbitral award may be made only by an appli cation for setting aside such award in accordance with sub-section (2) and sub-sec tion (3).

(2) An arbitral award may be set aside by the Court only if –

(a) the party making the application furnishes proof that – (i) a party was under some incapacity; or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appoint ment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration :

Provided that, if the decisions on matters submitted to arbitration can be sepa rated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or

(b) the Court finds that –

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

Explanation – Without prejudice to the generality of sub-clause (ii) of clause (b, it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal :

Provided that if the Court is satisfied that the applicant was prevented by suffi cient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereaf ter.

(4) On receipt of an application under sub-section (1, the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.”

26. A bare reading of sub-section (3) of Section 34 read with the proviso makes it abundantly clear that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 will have to be made within three months. The period can further be extended, on sufficient cause being shown, by another period of 30 days but not thereafter. It means that as far as application for setting aside the award is concerned, the period of limitation prescribed is three months which can be extended by another period of 30 days, on sufficient cause being shown to the satisfaction of the Court. Section 29(2) of the Limitation Act, inter alia pro vides that where any special or local law prescribes for any suit, appeal or applica tion a period of limitation different from the period of limitation prescribed by the schedule, the provisions of Section 3 shall apply as if such period was the period prescribed by the schedule and for the purpose of determining any period of limita tion prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 shall apply only insofar as, and to the ex tent, they are not expressly excluded by such special or local law. When any special statute prescribes certain period of limitation as well as provision for extension up to specified time limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting sub-section (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act.

27. However, merely because it is held that Section 5 of the Limitation Act is not applicable to an application filed under Section 34 of the Act for setting aside an award, one need not conclude that provisions of Section 14 of the Limitation Act would also not be applicable to an application submitted under Section 34 of the Act of 1996.

28. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said Section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service :

(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;

(2) The prior proceeding had been prosecuted with due diligence and in good faith;

(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;

(4) The earlier proceeding and the latter proceeding must relate to the same mat ter in issue and;

(5) Both the proceedings are in a court.

The policy of the Section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or law or defect of procedure. Having regard to the intention of the legisla ture this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.

29. At this stage it would be relevant to ascertain whether there is any express provision in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act. On review of the provisions of the Act of 1996 this Court finds that there is no provision in the said Act which excludes the applicability of the provi sions of Section 14 of the Limitation Act to an application submitted under Section 34 of the said Act. On the contrary, this Court finds that Section 43 makes the provi sions of the Limitation Act, 1963 applicable to arbitration proceedings. The pro ceedings under Section 34 are for the purpose of challenging the award whereas the proceeding referred to under Section 43 are the original proceedings which can be equated with a suit in a court. Hence, Section 43 incorporating the Limitation Act will apply to the proceedings in the arbitration as it applies to the proceedings of a suit in the court. Sub-section (4) of Section 43, inter alia, provides that where the court orders that an arbitral award be set aside, the period between the commence ment of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act, 1963, for the commencement of the proceedings with respect to the dispute so submitted. If the period between the commencement of the arbitration proceedings till the award is set aside by the court, has to be excluded in computing the period of limitation provided for any proceedings with respect to the dispute, there is no good reason as to why it should not be held that the provisions of Section 14 of the Limitation Act would be appli cable to an application submitted under Section 34 of the Act of 1996 more particu larly where no provision is to be found in the Act of 1996, which excludes the appli cability of Section 14 of the Limitation Act, to an application made under Section 34 of the Act. It is to be noticed that the powers under Section 34 of the Act can be exercised by the court only if the aggrieved party makes an application. The juris diction under Section 34 of the Act, cannot be exercised, suo motu. The total period of four months within which an application, for setting aside an arbitral award, has to be made is not unusually long. Section 34 of the Act of 1996 would be unduly oppressive, if it is held that the provisions of Section 14 of the Limitation Act are not applicable to it, because cases are no doubt conceivable where an aggrieved party, despite exercise of due diligence and good faith, is unable to make an application within a period of 4 months. From the scheme and language of Section 34 of the Act of 1996, the intention of the Legislature to exclude, the applicability of Section 14 of the Limitation Act, is not manifest. It is well to remember that Section 14 of the Limitation Act does not provide for a fresh period of limitation but only provides for the exclusion of a certain period. Having regard to the legislative intent, it will have to be held that the provisions of Section 14 of the Limitation Act, 1963 would be applicable to an application submitted under Section 34 of the Act of 1996 for set ting aside an arbitral award.

30. We may notice that in similar circumstances the Division Bench of this Court in State of Goa vs. Western Builders, (2006) 6 SCC 239 has taken a similar view. As observed earlier the intention of the legislature in enacting Section 14 of the Act is to give relief to a litigant who had approached the wrong forum. No canon of construction of a statute is more firmly established than this that the purpose of interpretation is to give effect to the intention underlying the statute. The interpretation of Section 14 has to be liberal. The language of beneficial provision contained in Section 14 of the Limitation Act must be construed liberally so as to Supplress the mischief and advance its object. Therefore, it is held that the provisions of Section 14 of the Limitation Act are applicable to an application sub mitted under Section 34 of the Act of 1996 for setting aside an arbitral award.

31. The plea that in view of the decision rendered by three Judge Bench of this Court in Commissioner of Sales Tax, Uttar Pradesh vs. Parson Tools and Plants, Kanpur, (1975) 3 SCR 743 the provisions of Section 14 of the Limitation Act should not be held to be applicable to an application filed under Section 34 of the Act, has no substance. The question determined in the Commis sioner of Sales Tax, Uttar Pradesh (supra) was whether under the circumstances of the case, Section 14 of the Limitation Act extended the period for filing of the revi sions by the time during which the restoration application remained pending as be ing prosecuted bona fide. In the said case, Sales-Tax Officer had made two assess ment orders. The assessee had filed appeals before the Appellate Authority. The appeals were dismissed in default as the assessee did not remain present on the specified date. The assessee filed two applications for setting aside such dismissal, under Rule 68(6) of the U.P. Sales Tax Rules. During the pendency of the applica tion a Single Judge of Allahabad High Court declared Rule 68(5) of the Rules ultra vires under which the appeals were dismissed for default. In view of the ruling of High Court, the Appellate Authority dismissed the appeals. The assessee, therefore, filed two revision petitions. They were filed more than 18 months after the dismissal of the appeals. The revisions were accompanied by two applications in which the assessee had prayed for exclusion of time spent by him in presenting the aborting proceedings under Rule 68(6) for setting aside the dismissal of his appeals. The revisional authority excluded the time spent in those proceedings from computation of limitation by applying Section 14 of the Limitation Act. The High Court dis missed the Reference made on the motion of the Commissioner of Sales-Tax. In appeal, this Court held that (1) if the legislature in a special statute prescribes a certain period of limitation, then the Tribunal concerned has no jurisdiction to treat within limitation, an application, by excluding the time spent in prosecuting in good faith, on the analogy of Section 14(2) of the Limitation Act and (2) the Appellate Authority and Revisional Authority were not courts but were merely administrative Tribunals and, therefore, Section 14 of the Limitation Act did not, in terms, apply to the proceedings before such Tribunals. From the judgment of the Supreme Court in Commissioner of Sales Tax, U.P. (supra, it is evident that essen tially what weighed with the Court in holding that Section 14 of the Limitation Act was not applicable, was that the Appellate Authority and Revisional Authority were not courts. The stark features of the revisional powers pointed out by the court, showed that the legislature had deliberately excluded the application of the principles underlying Sections 5 and 14 of the Limitation Act. Here in this case, the Court is not called upon to exmine scope of revisional powers. The Court in this case is dealing with Section 34 of the Act which confers powers on the Court of the first instance to set aside an award rendered by an arbitrator, on specified grounds. It is not the case of the contractor that the forums before which the Government of India undertaking had initiated proceedings for setting aside the arbitral award are not courts. In view of these glaring distinguishing features, this Court is of the opin ion that the decision rendered in the case of Commissioner of Sales Tax, Uttar Pradesh, Lucknow (supra) did not decide the issue which falls for consideration of this Court and, therefore, the said decision cannot be construed to mean that the provisions of Section 14 of the Limitation Act are not applicable, to an application submitted under Section 34 of the Act of 1996.

32. The contention that in view of the decision of Division Bench of this Court in Union of India vs. Popular Constructions Co., (2001) 8 SCC 470 the Court should hold that the provisions of Section 14 of the Limitation Act would not apply to an application filed under Section 34 of the Act, is devoid of substance. In the said decision what is held is that Section 5 of the Limitation Act is not applicable to an application challenging an award under Section 34 of the Act. Section 29(2) of the Limitation Act inter alia provides that where any special or local law prescribes, for any application, a period of limitation different from the period prescribed by the schedule, the provisions contained in Sections 4 to 24 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. On introspection, the Division Bench of this Court held that the provisions of Section 5 of the Limitation Act are not applicable to an appli cation challenging an award. This decision cannot be construed to mean as ruling that the provisions of Section 14 of the Limitation Act are also not applicable to an application challenging an award under Section 34 of the Act. As noticed earlier, in the Act of 1996, there is no express provision excluding application of the provi sions of Section 14 of the Limitation Act to an application filed under Section 34 of the Act for challenging an award. Further, there is fundamental distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act. The power to excuse delay and grant an extension of time under Section 5 is discretionary whereas under Section 14, exclusion of time is mandatory, if the requisite conditions are satisfied. Section 5 is broader in its sweep, than Section 14 in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal or the application within time. The ingredients in respect of Sections 5 and 14 are different. The effect of Section 14 is that in order to ascertain what is the date of expiration of the prescribed period, the days excluded from oper ating by way of limitation, have to be added to what is primarily the period of limi tation prescribed. Having regard to all these principles, it is difficult to hold that the decision in Popular Construction Co. (supra) rules that the provisions of Section 14 of the Limitation Act would not apply to an application challenging an award under Section 34 of the Act.

33. As this Court holds that Section 14 of the Limitation Act, 1963 is applicable to an application filed under Section 34 of the Act, 1996 for setting aside an award made by an arbitrator, the appeal arising from Special Leave Petition (C) No. 10311 of 2005 will have to be dismissed because the Division Bench of the High Court of Karnataka has in terms held that there was no lack of bona fide on the part of the respondents and that the respondents had diligently prosecuted the matter before the other court and had also immediately after coming to know the lack of jurisdiction of the court had filed the memo seeking withdrawal of the appeal and presented the same before the lower court which had the jurisdiction.

34. As far as the appeal arising from Special leave Petition (C) No. 15619 of 2005 is concerned, this Court finds that the view taken by the High Court of Karnataka that the provisions of Sections 12 and 14 of the Limitation Act, 1963 are applicable to the proceedings under the Arbitration and Conciliation Act, 1996 is eminently just and is hereby upheld. However, this Court finds it difficult to uphold the finding recorded by the Division Bench of the High Court that the appellant had not pros ecuted the matter in other courts with due diligence and in good faith and was, there fore, not entitled to exclusion of time taken in prosecuting the matter in wrong courts.

35. To attract the provisions of Section 14 of the Limitation Act, five conditions enumerated in the earlier part of this Judgment have to co-exist. There is no manner of doubt that the section deserves to be construed liberally. Due diligence and cau tion are essentially pre-requisites for attracting Section 14. Due diligence cannot be measured by any absolute standards. Due diligence is a measure of prudence or activity expected from and ordinarily exercised by a reasonable and prudent person under the particular circumstances. The time during which a court holds up a case while it is discovering that it ought to have been presented in another court, must be excluded, as the delay of the court cannot affect the due diligence of the party. Sec tion 14 requires that the prior proceeding should have been prosecuted in good faith and with due diligence. The definition of good faith as found in Section 2(h) of the Limitation Act would indicate that nothing shall be deemed to be in good faith which is not done with due care and attention. It is true that Section 14 will not help a party who is guilty of negligence, lapse or inaction. However, there can be no hard and fast rule as to what amounts to good faith. It is a matter to be decided on the facts of each case. It will, in almost every case be more or less a question of degree. The mere filing of an application in wrong court would not prima facie show want of good faith. There must be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party. In the light of these prin ciples, the question will have to be considered whether the appellant had prosecuted the matter in other courts with due diligence and in good faith. As is evident from the facts of the case, initially the appellant had approached the court of learned Civil Judge, Senior Division, Chitradurga for setting aside the award made by the arbitra tor. On direction dated October 29, 2002 issued by the learned Civil Judge (Senior Division, Chitradurga, the appellant had presented the application for setting aside the award before the learned District Judge, Chitradurga. Before the learned District Judge, Chitradurga an objection was raised by the respondent that the application was not maintainable before the said court and that the application was maintainable before the learned Judge, City Civil Court, Bangalore. The District Judge, Chitradurga by an order dated February 3, 2003 held that it had no jurisdiction to entertain the application submitted by the applicant and accordingly returned the application for presentation before the appropriate court. The question of jurisdiction was seriously contested between the parties not only before the court of learned Civil Judge (Se nior Division, Chitradurga but also before the learned District Judge, Chitradurga. The question of jurisdiction had to be considered by the courts below because of establishment of City Civil Court, Bangalore under a special enactment and in view of the definition of the word court as given in Section 2(e) of the Arbitration and Conciliation Act, 1996 which means the principal civil court of original jurisdiction in a district. The record does not indicate that there was pretended mistake inten tionally made by the appellant with a view to delaying the proceeding or harassing the respondent. There was an honest doubt about the court competent to entertain the application for setting aside the award made by the arbitrator. The mere fact that the question of jurisdiction is an arguable one would not negative good faith because the appellant believed bona fide that the court in which it had instituted the proceeding had jurisdiction in the matter. By filing the application in the courts which had no jurisdiction to entertain the same, the appellant did not achieve any thing more particularly when the lis was never given up. Under the circumstances this Court is of the opinion that the Division Bench of the High Court of Karnataka was not justified in concluding that the appellant had not prosecuted the matter in other courts with due diligence and in good faith. The said finding being against the weight of evidence on record, is liable to be set aside and is hereby set aside. We, therefore, hold that the appellant had prosecuted the matter in other courts with due diligence and in good faith and, therefore, is entitled to claim exclusion of time in prosecuting the matter in wrong courts. Therefore, the appeal arising from SLP(C) No. 15619 of 2005 will have to be allowed.

36. For the foregoing reasons civil appeal arising from SLP(C) No. 10311 of 2005 fails and is dismissed. The judgment rendered by the Division Bench of the High Court of Karnataka on April 4, 2005, in W.P. No. 7089 of 2003 dismissing the application filed by the appellant under Section 34 of the Arbitration and Concilia tion Act, 1996 for setting aside the award of the arbitrator, is set aside, and civil appeal arising from SLP(C) No. 15619 of 2005, is allowed. The Division Bench of the High Court of Karnataka is directed to proceed further with the matter in accor dance with law. There shall be no order as to costs in both the appeals.

If there is huge delay and in order to avoid the period of limitation, it cannot be resorted to a criminal proceeding.

Supreme Court in Thermax Ltd. and others Versus K.M. Johny and others [(2011) 11 SCALE 128]

The principles enunciated from the above-quoted decisions clearly show that for proceedings under Section 156(3) of the Code, the complaint must disclose relevant material ingredients of Sections 405, 406, 420 read with Section 34 IPC. If there is a flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. If there is huge delay and in order to avoid the period of limitation, it cannot be resorted to a criminal proceeding.

The Courts below failed to appreciate an important aspect that the complaint came to be filed in the year 2002 when the alleged disputes pertain to the period from 1993 -1995. As rightly pointed out, the Courts below ought to have appreciated that Respondent No. 1 was trying to circumvent the jurisdiction of the Civil Courts which stopped him from proceeding on account of the law of limitation.

The entire analysis of the complaints with reference to the principles enunciated above and the ingredients of Sections 405, 406, 420 read with Section 34 IPC clearly show that there was inordinate delay and laches, the complaint itself is inherently improbable contains the flavour of civil nature and taking note of the closure of earlier three complaints that too after thorough investigation by the police, we are of the view that the Magistrate committed a grave error in calling for a report under Section 156(3) of the Code from the Crime Branch, Pune. In view of those infirmities and in the light of Section 482 of the Code, the High Court ought to have quashed those proceedings to safeguard the rights of the Appellants. For these reasons, the order passed by the Judicial Magistrate First Class, Pimpri in CC No. 12 of 2002 on 20.08.2007 and the judgment of the High Court dated 11.01.2008 in Criminal Writ Petition No. 1622 of 2007 are set aside. The complaint filed by Respondent No. 1 herein is quashed.

Whether Section 14 of the limitation Act can be relied upon for excluding the time spent in prosecuting remedy before a wrong forum in the context of the provisions contained in Arbitration and Conciliation Act, 1996.

The question whether Section 14 of the limitation Act can be relied upon for excluding the time spent in prosecuting remedy before a wrong forum was considered by a two Judge Bench in State of Goa v. Western Builders (supra) in the context of the provisions contained in Arbitration and Conciliation Act, 1996. The Bench referred to the provisions of the two Acts and observed:

There is no provision in the whole of the Act which prohibits discretion of the court. Under Section 14 of the limitation Act if the party has been bona fidely prosecuting his remedy before the court which has no jurisdiction whether the period spent in that proceedings shall be excluded or not. Learned Counsel for the Respondent has taken us to the provisions of the Act of 1996: like Section 5, Section 8(1), Section 9, Section 11, sub- sections (4), (6), (9) and Sub-section (3) of Section 14, Section 27, Sections 34, 36, 37, 39(2) and (4), Section 41, Sub-section (2), Sections 42 and 43 and tried to emphasise with reference to the aforesaid sections that wherever the legislature wanted to give power to the court that has been incorporated in the provisions, therefore, no further power should lie in the hands of the court so as to enable to exclude the period spent in prosecuting the remedy before other forum. It is true but at the same time there is no prohibition incorporated in the statute for curtailing the power of the court under Section 14 of the limitation Act. Much depends upon the words used in the statute and not general principles applicable. By virtue of Section 43 of the Act of 1996, the limitation Act applies to the proceedings under the Act of 1996 and the provisions of the limitation Act can only stand excluded to the extent wherever different period has been prescribed under the Act, 1996. Since there is no prohibition provided under Section 34, there is no reason why Section 14 of the limitation Act (sic not) be read in the Act of 1996, which will advance the cause of justice. If the statute is silent and there is no specific prohibition then the statute should be interpreted which advances the cause of justice.

19. The same issue was again considered by the three-Judge Bench in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department (supra) to which reference has been made hereinabove. After holding that Section 5 of the limitation Act cannot be invoked for condonation of delay, Panchal, J (speaking for himself and Balakrishnan, C.J.) observed:

Section 14 of the limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:

(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;

(2) The prior proceeding had been prosecuted with due diligence and in good faith;

(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;

(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;

(5) Both the proceedings are in a court.

The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.

At this stage it would be relevant to ascertain whether there is any express provision in the Act of 1996, which excludes the applicability of Section 14 of the limitation Act. On review of the provisions of the Act of 1996 this Court finds that there is no provision in the said Act which excludes the applicability of the provisions of Section 14 of the limitation Act to an application submitted under Section 34 of the said Act. On the contrary, this Court finds that Section 43 makes the provisions of the limitation Act, 1963 applicable to arbitration proceedings. The proceedings under Section 34 are for the purpose of challenging the award whereas the proceeding referred to under Section 43 are the original proceedings which can be equated with a suit in a court. Hence, Section 43 incorporating the limitation Act will apply to the proceedings in the arbitration as it applies to the proceedings of a suit in the court. Sub-section (4) of Section 43, inter alia, provides that where the court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the limitation Act, 1963, for the commencement of the proceedings with respect to the dispute so submitted. If the period between the commencement of the arbitration proceedings till the award is set aside by the court, has to be excluded in computing the period of limitation provided for any proceedings with respect to the dispute, there is no good reason as to why it should not be held that the provisions of Section 14 of the limitation Act would be applicable to an application submitted under Section 34 of the Act of 1996, more particularly where no provision is to be found in the Act of 1996, which excludes the applicability of Section 14 of the limitation Act, to an application made under Section 34 of the Act. It is to be noticed that the powers under Section 34 of the Act can be exercised by the court only if the aggrieved party makes an application. The jurisdiction under Section 34 of the Act, cannot be exercised suo motu. The total period of four months within which an application, for setting aside an arbitral award, has to be made is not unusually long. Section 34 of the Act of 1996 would be unduly oppressive, if it is held that the provisions of Section 14 of the limitation Act are not applicable to it, because cases are no doubt conceivable where an aggrieved party, despite exercise of due diligence and good faith, is unable to make an application within a period of four months. From the scheme and language of Section 34 of the Act of 1996, the intention of the legislature to exclude the applicability of Section 14 of the limitation Act is not manifest. It is well to remember that Section 14 of the limitation Act does not provide for a fresh period of limitation but only provides for the exclusion of a certain period. Having regard to the legislative intent, it will have to be held that the provisions of Section 14 of the limitation Act, 1963 would be applicable to an application submitted under Section 34 of the Act of 1996 for setting aside an arbitral award.

In his concurring judgment, Raveendran, J. referred to the judgment in State of Goa v. Western Builders (supra) and observed:

On the other hand, Section 14 contained in Part III of the limitation Act does not relate to extension of the period of limitation, but relates to exclusion of certain period while computing the period of limitation. Neither Sub-section (3) of Section 34 of the AC Act nor any other provision of the AC Act exclude the applicability of Section 14 of the limitation Act to applications under Section 34(1) of the AC Act. Nor will the proviso to Section 34(3) exclude the application of Section 14, as Section 14 is not a provision for extension of period of limitation, but for exclusion of certain period while computing the period of limitation. Having regard to Section 29(2) of the limitation Act, Section 14 of that Act will be applicable to an application under Section 34 of the AC Act. Even when there is cause to apply Section 14, the limitation period continues to be three months and not more, but in computing the limitation period of three months for the application under Section 34 of the AC Act, the time during which the applicant was prosecuting such application before the wrong court is excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. Western Builders therefore lays down the correct legal position.

20. The same view was reiterated in Coal India Limited v. Ujjal Transport Agency .

 

Whether Section 5 of the limitation Act can be invoked for condonation of delay in filing an application under Section 34 of the Arbitration and Conciliation Act, 1996.

In Union of India v. Popular Construction Company , Supreme Court considered the question whether Section 5 of the limitation Act can be invoked for condonation of delay in filing an application under Section 34 of the Arbitration and Conciliation Act, 1996. The two-Judge Bench referred to earlier decisions in Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099, Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133, Mangu Ram v. MCD, (1976) 1 SCC 392, Patel Naranbhai Marghabhai v. Dhulabhai Galbabhai, (1992) 4 SCC 264 and held:

As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are ‘but not thereafter’ used in the proviso to Sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase ‘but not thereafter’ wholly otiose. No principle of interpretation would justify such a result.

Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award ‘in accordance with’ Sub-section (2) and Sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, Sub-section (3) would not be an application ‘in accordance with’ that Sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that:

36. Enforcement.-Where the time for making an application to set aside the arbitral award under Section 34 has expired ….the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the court.

This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to ‘proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow’ (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court’s powers by the exclusion of the operation of Section 5 of the limitation Act.

In Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and Ors. (supra), a three-Judge Bench again considered Section 34(3) of the Arbitration and Conciliation Act, 1996. J.M. Panchal, J., speaking for himself and Balakrishnan, C.J., referred to the relevant provisions and observed:

….When any special statute prescribes certain period of limitation as well as provision for extension up to specified time-limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the limitation Act shall stand excluded. As the intention of the legislature in enacting sub- section (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the limitation Act would not be applicable because the applicability of Section 5 of the limitation Act stands excluded because of the provisions of Section 29(2) of the limitation Act.

 

OBJECTIVE SAMPLE QUESTIONS ON LIMITATION ACT, 1963

Write the correct answer amongst the options

Application includes

Writ Petition

Interlocutory application

Petition for restoration of suit

Above all

Suit does not include an appeal or an application in Limitation Act

 True

False

Cannot be said

Not a subject matter of limitation act

 The Limitation Act, 1963 applies to

proceedings before courts

Suit before courts

Suit and Proceeding Both

all the above.

The period spent in prosecuting the case before the Consumer Forum can be

partly excluded

included

excluded

partly included.

Under the Limitation Act, 1963, the court has no… power, outside the Act, to relieve a litigant from the provisions of the Act

general

inherent

over-riding

general or inherent or over-riding.

Limitation Act can be applied 

Before Criminal Court

Before Tribunal

Before Writ Court

Above all are true

If the money suit filed within three years from the date on which cause of action arises then the suit

does not relate to Limitation Act

is not barred by limitation

is barred by limitation

depends on application for condonation of delay.

The Limitation Act, 1963 applies to

 

Civil suit

partition suit

matrimonial proceeding

in an application u/s 12 of the Domestic violence act

  1. All four answers are correct
  2. Only first three is correct

Delay in filing the suit

cannot be condoned

can be condoned under section 3, Limitation Act

can be condoned under Order VII, Rule 6, C.P.C.

can be condoned under section 5, Limitation Act.

Under section 2(1) of Limitation Act suit includes

appeal

application

both (a) and (b)

none of the above.

Under section 2(1) of Limitation Act suit includes

appeal

application

execution petition

none of the above.

All instruments for the purpose of Limitation Act, 1963 shall be deemed to be made with reference to

Gregorian Calendar

English Calendar

Roman Calendar

Indian National  Calendar.

Which of the following statements is correct as regards the sections and the articles in the Limitation Act, 1963

the sections and the articles lay down the general principles of jurisdiction

the sections and the articles prescribe the period of limitation

the sections lay down the general principles of jurisdiction and the articles prescribe the period of limitation applicable in matters provided therein

the sections prescribe the period of limitation applicable in matters provided therein ana the articles lay down the general principles of jurisdiction.

Section 3 Limitation Act does not apply to

suits

appeals

application

execution petition

Under section 3, Limitation Act, 1963, a claim by way of is treated as a cross-suit

set-off

counter-claim

set-off or counter-claim

set-off and counter-claim.

Under section 3, Limitation Act, 1963 cross suit by way of set-off shall be deemed to have been instituted

on the same day as the suit in which set­off is pleaded has been filed

on the day on which the set-off is pleaded

either (a) or (b) whichever is beneficial to the defendant

either (a) or (b) whichever is beneficial to the plaintiff.

Counter-claim, under section 3, Limitation Act, 1963, shall be deemed to have been instituted

on the same day as the suit in which counter-claim is made has been filed

on the day on which the counter-claim is made

either (a) or (b) whichever is beneficial to the defendant

either (a) or (b) whichever is beneficial to the plaintiff.

Section 3, Limitation Act, 1963, does not apply to

suits

appeals

applications

execution proceedings.

The provisions of section 3, Limitation Act [ are

mandatory

directory

discretionary

optional.

Under section 3, Limitation Act, 1963 the court is required to consider the question of limitation

only when objection to limitation is raised by the defendant

only when the defendant does not confess judgment

only when the defendant does not admit his liability

suo motu even when the defendant has not taken any objection of limitation or has confessed judgment or has admitted this liability in the written statement.

A suitor, under section 3, Limitation Act, 1963 I

can be relieved of the bar of limitation on the ground of hardship, mistake or injustice

can be relieved of the bar of limitation on the ground that its application would be inconsistent with the principles of natural justice

can be relieved of the bar of limitation on the ground of equitable considerations

cannot be relieved on the ground either (a) or (b) or (c).

Section 3, Limitation Act is applicable to the i period of limitation prescribed by any

local law

special law

both (a) and (b)

neither (a) nor (b).

Section 3, Limitation Act,’l963 is

an independent section in its operation and effect

not an independent section in its operation and effect, and is subject to and controlled by sections 4 to 24

not an independent section in its operation and effect and is subject to and controlled by sections 4 to 27

not an independent section in its operation and effect and in respect to and controlled by sections 4 to 32.

For the purposes of section 3, Limitation Act, 1963, limitation is checked

when the plaint is actually presented in the proper court

when the plaint is presented even in a court not competent to try the suit

when the plaint in presented by the part

all the above.

A time-barred debt can be claimed

as a setoff

as a counterclaim

as a fresh suit

none of the above.

Under the Limitation Act, 1963, the court has no power to extend the limitation on the ground of

equitable considerations

hardship

necessary implication

either (a) or (b) or (c).

Section 5, Limitation Act, is

applicable to the proceedings under section 34, Arbitration and Conciliation Act, 1996 and the time limit prescribed under section 34 can be extended generally

not applicable to the proceedings under section 34, Arbitration & Conciliation Act, 1996 and the time limit prescribed under section 34 is absolute and unextendable

applicable to the proceedings under section 34, Arbitration and Conciliation Act, 1996 and time limit prescribed under section 34 can be extended only in exceptional circumstances

not applicable to the proceedings under section 34 Arbitration and Conciliation Act, 1996-however, the time limit prescribed under section 34 can be extended under inherent powers of the court.

An application for leave to contest the eviction proceedings before the Rent Controller attracts

section 4, Limitation Act, 1963

section 10, General Clauses Act, 1897

both (a) and (b)

either (a) or (b).

Section 4, Limitation Act, 1963 applies

where a certain period has been prescribed by a statute

where a certain period is fixed by agreement of parties

where a certain date is fixed by agreement of parties

all the above.

In order to attract section 4, Limitation Act, 1963

the court should be closed for the whole of the day

it is not necessary that the court should be closed for the whole day and it is sufficient if the court is Closed during any part of its normal working hours

the court should be closed for substantial part of the day if not for the whole of the day

the court should be closed for more than half of the normal working hours.

The extension of time granted by section 4, Limitation Act ,1963

can be combined with section 5, Limitation Act

can be combined with section 12, Limitation Act

can be combined with section 5 and section 12, Limitation Act

cannot be combined with section 5 and section 12, Limitation Act.

Section 5 of Limitation Act applies to

suit

writ application

execution

all the above.

Section 5 of Limitation Act applies to

Application

Petition

Special Leave petition

election petitions

none of the above.

Limitation for Recovery of possession based on previous Title  is

12 years

6 months as per specific relief act

Within three years  as per specific relief Act

The Matter is Confusing and no clear answer has been provided by Apex Court.

In matters of condonation of delay under section 5, Limitation Act the Government, has to be accorded

treatment similar to a private citizen and no latitude is permissible

treatment stricter than a private citizen as the Government is supposed to act in a more responsible manner

treatment similar to a private citizen, however, certain amount of latitude is not impermissible

either (a) or (b).

For condonation of delay under section 5, Limitation Act, 1963

length of delay is the only criterion

length of delay is no matter, acceptability of the explanation is the only criterion

length of delay certainly matters apart from the acceptability of the explanation

either (a) or (c).

In the matters of condonation of delay under section 5, Limitation Act 1963, relating to Government

strict proof of everyday’s delay by the Government should not be insisted upon

strict proof of everyday’s delay by the Government should be insisted upon

strict proof of everyday’s delay by the Government may not be insisted upon

strict proof of everyday’s delay by the Government may be insisted upon.

In the matters of condonation of delay under section 5, Limitation Act, 1963, public institutions like banks should

be treated at par with private individuals

be treated at par with private institutions

be treated at par with corporate body

neither be treated at par with (a), nor (b), nor (c).

The delay under section 5, Limitation Act, 1963 can be condoned on

an oral application

a verbal application

a written application

either (a) or (b) or (c).

An application for condonation of delay under section 5, Limitation Act

has to be considered by the court on merits and order has to be passed with reasons

has to be considered by the courts on merits-however, the order need not be passed with reasons

has to be considered by the court on merits-however, the order may not be passed with reasons

has to be considered by the court on merits-however, it is discretionary for the court to pass order with or without reasons.

Section 6 of Limitation Act applies to

suits

execution of a decree

both (a) and (b)

none of the above.

Section 6 of Limitation Act does not apply to

suits

execution of a decree

appeal

all the above.

Section 6 of Limitation Act can be availed by

plaintiff(s)

defendant(s)

both (a) and (b)

none of the above.

Legal disabilities are

minority

insanity

idiocy

all the above.

Section 6 of Limitation Act does not apply to

insolvent

minor

insane

idiot.

Section 6 of Limitation Act does not apply to

suits

execution of a decree

suits to enforce rights of pre-emption

none of the above.

Period of limitation stands extended, by virtue of section 6 of Limitation Act for a maximum period of

1 year

3 years

6 years

12 years.

Can a plea of limitation be

waived by a party

ignored by the court

waived by both the parties by consent

none of the above.

The period for possession of a hereditary office is

Three years

Twelve years

Within a year of the vacancy of the office

No limitation has been Prescribed

 Time which has begun to run can be stopped in case of

minority

insanity

idiocy

none of the above.

Section 6 of Limitation Act does apply in cases of

illness

poverty

insolvency

none of the above.

In computing the period of limitation for appeal, review or revision, the time requisite for obtaining a copy of the decree or order appealed shall be excluded under

section 12(1)

section 12(2)

section 13(3)

section 14(4).

In computing the period of limitation for application to set aside an award, the time requisite in obtaining a copy of the award shall be excluded under

section 12(1)

section 12(2)

section 12(3)

section 12(4).

Limitation for filing an appeal commences from

the date of judgment

the date of signing of the decree

the date of application for copy of the judgment

the date of availability of copy of the judgment.

‘Time requisite’ under section 12(2) of Limitation Act means

minimum time

maximum time

actual time taken for obtaining certified copy

absolutely necessary time.

Time excluded has to be considered on the basis of

information available from the copy of judgment/decree placed on record

information as to copies obtained by the parties for court purposes

information as to copies obtained by the parties for other purposes

information as to copies not placed on record but made available to the court.

Section 13 of Limitation Act applies to

suit filed in forma pauperis

appeal filed in forma pauperies

both (a) and (b)

none of the above.

Under section 13 of Limitation Act, the time is excluded

if the application for leave to sue or appeal as a pauper is allowed

if the application for leave to sue or appeal as a pauper is rejected

in both the cases

in none of the case.

Section 14 & section 5 of Limitation Act are

independent of each other

mutually exclusive of each other

both independent & mutually exclusive

neither independent nor mutually exclusive.

Under section 14 defect in jurisdiction must relate to

territorial jurisdiction

pecuniary jurisdiction

subject matter jurisdiction

either (a) or (b) or (c).

Section 15 excludes from computation of limitation

period of notice

time taken in granting previous consent

time taken in grant of sanction

all the above.

Section 15 does not apply to

suits

appeal

execution application

none of the above.

Period during which proceedings stand stayed by an injunction or order is excluded

under section 14

under section 15

under section 13

under section 16.

Section 15 applies to

suits

execution applications

both suits & execution applications

neither suits nor execution proceedings.

Time taken in proceedings to set aside the sale, in suit for possession by a purchaser in execution, is liable to be excluded

under section 15(4)

under section 15(2)

under section 15(3)

under section 15(1).

Any Suit for which no limitation has ben prescribed can be filed

Within three years

Three months

Within a month

At any time

Section 16 applies to

suits to enforce rights of pre-emption

suits for possession of immovable property

suits to enforce right to a hereditary office

none of the above.

Section 17 takes within its ambit

frauds

mistakes

concealments

all the above.

Section 17, Limitation Act, 1963, does not apply to

criminal proceedings

civil proceedings

execution proceedings

both (a) and (c).

The fraud contemplated by section 17, Limitation Act, 1963 is that of

the plaintiff

the defendant

a third person

either (a) or (b) or (c).

Whether a plaintiff could with reasonable diligence have discovered the fraud or mistake under section 17, Limitation Act, is a

question of fact to be decided on the basis of facts disclosed in each case

question of law

mixed question of fact and law

substantial question of law.

Under section 17, Limitation Act, 1963, the limitation starts running from

the date of the mistake

the date of discovery of mistake

either (a) or (b), depending on the facts and circumstances or the case

either (a) or (b), as per the discretion of the court.

In case of mistake, under section 17, Limitation Act, 1963, the limitation shall start running from

the date of the mistake

the date when the mistake with due diligence could have been discovered

either (a) or (b), whichever is earlier

either (a) or (b), whichever is beneficial to the suitor.

Section 17 applies to

suits

execution proceedings

both suits and execution proceed-ings

neither to suits nor to execution proceeding.

Section 17 does not take within its ambit

suits

appeals

execution application

all the above.

Under section 19, Limitation Act, 1963

payment by cheque which is dishonoured on presentation amounts to part payment and shall save limitation

payment by cheque which is dishonoured on presentation does not amount to part payment and will not save limitation

mere handing over the cheque which is dishonoured on presentation amounts to acknowledgment

either (a) or (c).

Which of the following is not required for a valid acknowledgement

in writing

made before the expiration of period of limitation

signed by the person concerned

in the handwriting of the person concerned.

Section 22 refers to cases of

continuing breach of contract

successive breach of contract

both continuing & successive breaches

neither continuing nor successive breaches.

Under section 25 the easement rights are acquired by continuous & uninterrupted user

for 12 years

for 20 years

for 30 years

for 3 years.

Under section 25, the easement rights over the property belonging to the Government are acquired by continuous & uninterrupted user

for 12 years

for 20 years

for 30 years

for 60 years.

A suit against the obstruction in the enjoyment of easementary rights acquired under section 25 must be filed

within 2 years of such obstruction

within 1 year of such obstruction

within 3 years of such obstruction

within 12 years of such obstruction.

Which is correct

limitation bars the judicial remedy

limitation extinguishes the right

limitation is a substantive law

limitation bars the extrajudicial remedies.

Which is not correct of law of limitation

limitation act bars the judicial remedies

limitation  act is an adjective law

limitation  act extinguishes the right

limitation act is a procedural law.

Which is not correct of law of limitation

limitation bars the judicial remedies

limitation is negative in its operation

limitation is a procedural law

limitation bars the extra judicial remedies.

A suit for possession based on the right of previous possession & not on title can be filed

within one year of dispossession

within three years of dispossession

within twelve years of dispossession

within six months of dispossession.

A suit for possession of immovable property based on title can be filed

within one year

within three years

within twelve years

within six months.

For a suit filed by or on behalf of Central Government or any State Government, the period of limitation is

one year

three years

twelve years

thirty years.

Law of limitation is

lex loci

lex fori

non-obstante

all the above.

Under section 21, a suit is deemed to have been instituted, in case of a new plaintiff impleaded/added

on the date on which the new plaintiff is impleaded

on the date on which the suit was initially instituted

on the date on which the application for impleading a new plaintiff is made

none of the above.

Under section 21, qua a defendant a suit is deemed to have been instituted against a newly added defendant

on the date on which the new defendant is impleaded

on the date on which the suit was initially instituted

on the date on which the application for impleading a new defendant is made

none of the above.

Under section 21, can the court direct the suit to have been instituted on an earlier date

yes, if the omission to include the party was due to a mistake made in good faith

yes, if the omission to include party was deliberate

in both (a) & (b)

neither (a) nor (b).

Section 21 does not apply in

cases of adding of a new plaintiff for the first time

cases of adding of a new defendant for the first time

cases of transposition of parties

neither (a) nor (b) nor (c).

Section 21 does not apply in

cases of devolution of interest during the pendency of the suit

cases of assignment of interest during the pendency of the suit

case of transposition of a plaintiff as a defendant & vice-versa

all the above.

Section 21 applies only to

suits

appeals & application

executions

all the above.

Law of limitation has to be strictly construed. In view of the same section 5 of Limitation Act has to be construed

strictly

liberally

harmoniously

ejusdem-generis.

Easementary rights under section 25 can be acquired by

tenant

a co-owner

both a tenant and a co-owner

neither a tenant nor a co-owner.

Section 27 of Limitation Act

bars the remedy

extinguishes the right

both (a) & (b)

neither (a) nor (b).

Section 27 of Limitation Act does not extinguish the right in

suits

appeals

execution application

all the above.

Section 27 of Limitation Act does not apply to cases for recovery of possession

where no limitation period has been prescribed

where the limitation period has been prescribed

Doth (a) & (b)

neither (a) nor (b).

Which is true of acknowledgments

extends the period of limitation

confers an independent right on a person

confers a title on the person

all the above.

Any application for which no limitation has been prescribed can be filed

Within three years

Three months

Within a month

At any time