Effect of Acknowledgment

Acknowledgement

The word acknowledgement means “an admission of the
truth of one's liability”

“an acknowledgment is an admission by the writer that there
is a debt owing by him,

either to the receiver of the letter or to some other person on
whose behalf the letter is received

but it is not enough that he refers to a debt as being due from
somebody.

In order to take the case out of statute there must, upon the
fair construction of letter,

read by the light of the surrounding circumstances, be an
admission that the writer owes the debt”
Section 18
(1) Where, before the expiration of the prescribed period for a suit
or application in respect of any property or right,
(2)an acknowledgement of liability in respect of such property or
right has been made in writing signed by the party against whom
such property or right is claimed,
(3) or by any person through whom he derives his title or liability,
(4)a fresh period of limitation shall be computed from the time
when the acknowledgement was so signed
(5) Where the writing containing the acknowledgement is undated,
oral evidence may be given of the time when it was signed; but
subject to the provisions of the Indian Evidence Act, 1872 oral
evidence of its contents shall not be received
Explanation
(a) An acknowledgment may be sufficient though it omits to
specify the exact nature of the property or right, or avers
that the time for payment, delivery, performance or
enjoyment has not yet come or is accompanied by a refusal
to pay, deliver, perform or permit to enjoy, or is coupled with
a claim to set-off or is addressed to a person other than a
person entitled to the property or right,
(b)The word “signed” means signed either personally or by an
agent duly authorised in this behalf, and
(c)An application for the execution of a decree or order shall
not be deemed to be an application in respect of any
property or right
Features of the Section
(a) An admission or acknowledgement

(b)That such acknowledgement must be in respect of

a liability in respect of a property or right
(c)That it must be made before the expiry of the
period of limitation, and
(d)That it should be in writing and signed by the party
against whom such property or right is claimed
Essentials

(1)It is necessary that an acknowledgment should be in

writing
(2)The section requires that acknowledgment must be
signed, otherwise it is no acknowledgement in the eyes
of law. However, it may be signed either personally by the
person who makes it or his agent duly authorised in this
behalf
(3)Acknowledgement as stated is Section 18 of the Act
merely renews the debt, it does not create a new right of
action
Cont......
(1)It is mere acknowledgement of the liability in respect of the
right
(2)It need not be accompanied by a promise to pay either
expressly or even by implication
(3)It must relate to a present subsisting liability though the exact
nature or the specific character of the said liability may not be
indicated in words
(4)It must indicate the existence of Jural relationship between the
parties
(5)The intention of the acknowledgement can be inferred from
the nature of admission, it need not be expressed in words
????????

State Bank Of India

V.
Kanahiya Lal & Anr.
2 May, 2016
 Facts…

– Respondent No.1, the sole proprietor of M/s Aggarwal

Store, a kirana shop, dealing in grocery and items of
daily need,
– applied for loan before the appellant Bank.
– The appellant Bank granted a cash credit limit of Rs.1
lakh to respondent/defendant No.1.
– Respondent No.2 stood as a guarantor to the loan
– and the guarantee documents were executed on
27.11.2001.
 Cont…

– but the repayments were very irregular.

– The appellant Bank sent reminders to the
respondents No.1 and 2 for returning loan
amount.
– It was in this context that the two letters dated
18.11.2006 and 20.11.2006 were written by the
defendants/respondents
 Trial court order

– On the basis of the pleadings of the parties,

– the Trial Court framed
– the sole issue as to whether the appellant Bank is
entitled to recover the amount
– decreed the suit and declared the appellant Bank
to be entitled to the decree
 First Appellate Court…

– ……….reversed the judgment of the Trial

Court
– and dismissed the suit as being barred by
law of limitation
– Second appeal preferred & argued on…..
 Endorsement….

“endorsed by the payees to you I/we acknowledge for the

purpose of section 18 of the Limitation Act, 1963 and any like
limitation law in order to preclude any question of limitation
law that I am/we are liable to you for payment of the said
Promissory Note with interest in respect of all present and
future indebtedness and liabilities secured which Promissory
Note is to remain in force with all relative securities,
agreements and obligations."
 Second appellate court…

– The substantial question of law is

– as to what would be the effect of the two letters
written by the defendant/respondents dated
18.11.2006 and 20.11.2006 (Ex.PW2/2 and Ex.PW2/3)
and whether the aforesaid letters
– would constitute a promise by the
respondent/defendants to pay in whole or in part, the
debt, of which the appellant Bank might have enforced
the payment but for the law of limitation.
The respondents/defendants
contested……..
– the suit and raised preliminary objections
– regarding the appellant not coming to the court
with clean hands.
– The respondents/defendant No.2 denied to
have executed any guarantee agreement
– as he had separate business terms with the
Bank and his signature was stated to have been
obtained maliciously.
Cont….

– It was further contended that

– the last payments towards the credit facility
were made on 02.09.2002
– by the Bank and a suit for recovery of the
balance amount could have been lodged only
within three years after 02.09.2002
 2nd appellate court opined…

– aforesaid two letters (Ex.PW2/2 and Ex.PW2/3),

– it would appear that the respondents have clearly

admitted their liability of the outstanding dues towards
the Bank,
– only for the purposes of restituting the Bank.
– The contents of the aforesaid two letters are nothing
short of an acknowledgment of the dues as also an
implied promise to pay
 Cont.…..

– If the letters (Ex.PW-2/2 & Ex.PW-2/3),

– clearly disclose the relationship between
the parties of a debtor and a creditor,
– then it is difficult to dispute that there is an
implied promise to pay
 Finally….

– Thus the First Appellate Court was not justified in

dismissing the suit of the appellant on the ground of
the same being time barred.
– The letters are in the nature of a promise and
therefore there was no requirement of the same
having been obtained/written within a period of
three years to be counted from 02.09.2002.
– The impugned judgment is, therefore, set aside and
the judgment by the Trial Court is restored.
CAVEAT

INTRODUCTION
– A Caveat is a Notice given by a person,

– …….informing the Court that another person

– …….may file a suit or application against him

Cont..

– and that the Court must give the Caveator

– …..a fair hearing before deciding any matter

– A Caveat is a Latin term which means 'let a person beware'

– ……. may be understood as a notice,

– especially in probate,

– …….certain actions may not be taken

Cont..

– ……it was inserted under section 148A

– Law Commission of India's 54th Report

– A caveat petition is a precautionary measure

Cont..

– usually when people are having a very strong

apprehension

– that some case is going to be filed in the Court regarding

their interest in any manner.

– The word 'Caveat' is not defined in the Code.

Cont…

– Nirmal Chand v. Girindra Narayan,

– AIR 1978 Cal 492

– ……the Court had defined the word Caveat,

– wherein it said,
Con …..

– A Caveat is a caution or warning

– .....given by a person to the Court

– ......not to take any action or grant relief

– ......to the other side without

Con…….

– giving notice to the Caveator

– ...... and without affording

– opportunity of hearing him.

SECTION 148A

– As per Order XI A, section 148A

– Right to lodge a caveat:

 Where an application is expected to be made, or has been

made,

 in a suit or proceedings instituted,

 Con…..

 or about to be instituted, in a Court,

 any person claiming a right to appear before the Court

 on the hearing of such application may lodge a caveat in

respect thereof.
Con…..

 Caveator shall serve a notice of the caveat by registered

post,

 ……. the Court, shall serve a notice of the application on the

Caveator
Five basic ingredients

– (a) Who may lodge a Caveat?

– Any person claiming a right to appear before the Court,

– •Where an application is expected to be made

Cont..

– Where an application has already been made

– In a suit or proceeding instituted

– In a suit or proceeding which is about to be instituted

– May lodge a caveat thereof. It is substantive in a nature.

(b) Duties of the Caveator

– •Serve a notice of the Caveat by registered post,

acknowledgement due

– •On the person by whom the application has been made

– •On the person by whom the application is expected to be

made
(c) Duty of the Court

– After a Caveat has been lodged ,

– if any application is filed in any suit or proceeding,

– the Court shall serve a notice of the application on the

Caveator.
– This is mandatory in nature.
 (d) Duties of the Applicant

– •A copy of the application made by him.

– •Copies of any paper or document which has been filed by

him in support of his application.

– •Copies of any paper or document which may be filed by

him in support of his application.
(e) Life of a Caveat Petition

– The life of the petition is 90 days,

– from the date on which it was lodged.

Object and Scope of the Section:

– The object of this section is to safeguard the interest of the

Caveator,
– who is ready to face the suit or proceedings which is
expected to be instituted by his opponent,
– affording an opportunity to be heard,
– before an ex parte order is made.

– Also, to avoid multiplicity of proceedings, so as to save the

costs and conveniences of the Courts.
Kattil Vayalil Parkkum Koiloth v. Mannil
Paadikayil Kadeesa Umma, AIR 1991 Ker
411.

– the court opined

– that a person
– who is a total stranger to a proceeding
could not lodge a caveat.
?????

RESERVE BANK OF INDIA EMPLOYEES ASSOCIATION &

ANOTHER
vs.
THE RESERVE BANK OF INDIA AND ORS.
AIR 1981 AP 246
 Con……

– In this case, the appellants had filed a Caveat

– apprehending an application which may be filed by the

respondent .

– The application was for grant of an injunction

– against restraining them from holding any meeting or,

 Con ….

– staging any demonstration

– or resorting to any other form of direct action

– or playing musical instruments,

– beating of drums, using microphones, etc.,

 Con ….

– within the premises of the Reserve Bank of India,

Hyderabad Branch.

– within the premises of the Reserve Bank of India,

Hyderabad Branch.

– for which a notice was served on the plaintiff on 08-10-

1980.
Con……

– On 27-10-1980, copies of the intended application for

interim relief,
– relevant papers and documents were served on the
Caveator’s.
– It was later heard on 30-10-1980, and
Con ……

– an order of injunction was passed without giving any notice

to the Caveator’s.
– Caveator’s contended that the interim orders of injunction
passed by the court on 30.10.1980 was null and void,
– as it was passed without jurisdiction,

– contrary to section 148A

The issues ……

– 1) Whether the order of the learned Judge without giving

a notice t caveator is null and void?

– 2) Whether the order stands till it is set aside according to

the procedure known to law?
 
Con ……..

– The court opined,

– the powers of a Civil Court are too sacrosanct

– to be allowed to be diluted or

– to be curtailed by a mere remote implication.

 Con…….

– hold that as there is no specific provision

– declaring any action taken by the Court contrary to its

mandatory duty

– under Sub-section (3) to give a notice would be void,

Con…….

– the order passed by the Court below on 30-10-1980 is not

a nullity.

– the mere lodgement of a caveat

– would not deprive the Court’s

 ??????

– As the lodgement of a caveat

– is merely a right to be informed of the hearing date

– and it has no effect by way of

– curtailing the powers of a Civil Court

– to pass an appropriate order on the merits of the case,

THANK
YOU
DEARS
LAW OF
LIMITATION

?????????????
 Objectives

of
Law of Limitation
Introduction …..

There should be limit to litigation

The intention… “controversies are restricted to a

fixed period of time, lest they should become
immortal while men are mortal.”

The Statutes of limitation are known as statutes

of repose or peace.
 Cont….
I

 n the interest of society as a whole, litigation must come to an end

 the law assists those that are vigilant with their rights, and not those
that sleep thereupon

 the legislation that governs the period within which suits are to be
filed, with relevant provisions for delay, condonation thereof etc.
The concept of Limitation

o ………is related with the fixing or prescribing of period

for barring legal actions.
o That long dormant claims have more of cruelty than
justice in them
o That a defendant might have lost the evidence to
dispute the State claim
Cont…

 The purpose of the statute of limitation is

 ……..not to destroy the rights but it is founded on public
policy fixing a life span for the legal remedy for the general
welfare.
 The object of providing a legal remedy is to repair the
damage caused by reason of legal injury.
Limitation means......

The time at the end

no action at law or

suit can be maintained.

It is a restriction of the right of action

to certain periods of time,

after the accruing of cause of action

…..

Legal remedy can be exercised

only up to certain period and not subsequently

‘limitation extinguishes the remedy, but not the right‘

........means that the legal right itself is not defeated,

but only the right to claim it in a court of law is
extinguished.
.....

– ......branch of adjective law

– Rests upon three main foundations.......
– Justice
– Convenience
– Need to encourage diligence
Act….

The Limitation Act, 1963, prescribed limitation

 with a view to see that a litigant does not

drag on the litigation.

The Laws of Limitation are statutes of peace

and repose
Cont…

– statues that manifest the policy of law

– in lending its aid only to those who are vigilant
– and not those who sleep over their rights.
– Limitation laws suggest that all
disputes/claims/remedies should be kept alive only
for a legislatively fixed period of time,
– for otherwise disputes would be immortal when
man is mortal
Object…

– That long dormant claims have more of cruelty than justice

in them;
– That a defendant might have lost the evidence to dispute
the state claim;
– That persons with good causes of actions should pursue
them.
Balakrishnan v. M.A. Krishnamurthy,
[(1998) 7 SCC 123J
– The Supreme Court has held that

– the law of limitation is based on public policy

fixing a life span for legal remedy for the purpose
of general welfare.

– It is pointed out that the rules of limitation are not

meant to destroy the rights of the parties but are
meant to see that the parties do not resort to
dilatory tactics but seek third remedy.
Rajender Singh v. Santa Singh,
AIR 1973 SC 2537
 

– The Supreme Court of India has held

– “The object of the law of limitation is to prevent

disturbance or deprivation of what may have
been acquired in equity and justice by long
enjoyment or what may have been lost by a
party’s own inaction, negligence or latches.”
History….

– First time a Law of Limitation was passed …..1859.

– Act of 1859 was followed by ……1871
– and the same was followed by …….1877.
– Next the Limitation Act, 1908……. consolidated the law
– ……… relating to limitation for suits, appeals and applications.
– Present Limitation Act 1963,
– ……was passed to implement the Third Report of the Law Commission
on the Indian Limitation Act.
 Scheme.....

The schedule to
the Act contains
137 articles

114 to 117 118 to 137

1 to 113 relate
relate to relate to
to suit
appeals applications
Definition……

– Section 2 (j) of the Limitation Act, 1963, ‘period of

limitation’ means
– the period of limitation prescribed for any suit, appeal or
application by the Schedule and
– ‘prescribed period’ means the period of limitation
computed in accordance with the provisions of the Act.
cont…

– .....law of limitation ......is to prevent.....disturbance or

deprivation of rights of parties
– Rules of limitation......not meant to destroy the rights of
parties
– Meant to.....see that parties do not resort to dilatory tactics
– .....but seeking their remedy promptly
Cont…

– The object of providing a Legal remedy

– ………. is repair the damage caused by reasons of legal
injury
Sec 3

– Bar of limitations :-
– The operative provisions of Act begin with sec 3
– Dismissal of time bar proceedings mandatory even the
defendant does not set up the limitation as a
defence
Sec 4

– Expiry of prescribed period when court re-opens.

– This section based on the principle
– that the law does not compel a man to do the impossible
– ....may be instituted on the day when the court re-opens
Lex non cogit ad impossibilia

C.F. Angadi
vs
Hirannayya
AIR 1972 S.C 239
The law does not compel a man to do the impossible and
the act of court should not harm no one
Facts....

Sale agreement executed between the plaintiff

and defendant
Suit filed by the plaintiff for specific performance ........
Trail court decreed the suit.....
Defendant filed an appeal before H.C....
During pendency of appeal.......
??????????
Cont.....

o As matter in controversy between the parties

o ……….in the appeal turns upon the construction of the
compromise decree,
o The defendant agrees to receive from the plaintiff a lakh
of rupees paid as consideration for the sale of the
property
o The period of time fixed for the payment by the plaintiff
to the defendant of-this amount stated above is from
10-3-1947 till 1-1-1960.
 Cont....
The plaintiff agrees to deposit the amount in court for
payment to the defendant
On failure of the plaintiff to deposit the amount in court by 1-
1-1960 his suit now in appeal will be dismissed with costs
throughout.
 It is agreed by the parties that time is the essence of
the contract and no further extension of time would
be allowed and the dismissal of the suit with costs
would be automatic
 Cont...
– The respondent applied for challan on 22-12-1959 to
deposit the amount
– and a challan was issued to him on 24-12-1959,
– the last working day before the court closed for
Christmas holidays.
– December 31, 1959 and January 1, 1960, were holidays.
– Neither the lower courts nor the banks were open on
these days.
– The respondent made the deposit on 2-1-1960
 Cont.....

– ……and sought to enforce his right under the decree

– by compelling the appellant to execute the conveyance in
terms of the compromise decree by filing execution case No.
25 of 1960
– The appellant also filed execution case No. 45 of 1960 ……. for
cost on the basis that the suit stood dismissed as per the
provision in the decree on the failure of the respondent to
deposit the amount by 1-1-1960.
 Cont...

 These two petitions were heard together,

 and the court passed an order
 holding that the respondent had made the deposit in substantial
compliance with the decree and allowing execution case No. 25
of 1960 and dismissing execution case No. 45 of 1960.
 Against this order, the appellant filed Appeals ……before the High
Court of Mysore.
 A Division Bench of the High Court, by its judgment …….
dismissed the appeals with costs
 Question raised......

– whether the deposit made by the respondent on 2-1-1960 was within

the time specified in the compromise decree
– and would enable him to compel the appellant to execute the sale
deed in accordance with the provisions of the compromise decree.
 Argument of appellant...

– ………. that the respondent had practically six month's time to deposit
the amount,
– that he should not have waited for the last day of the period allowed
to him by the decree
– to deposit the amount
– and if he was not diligent to deposit the amount earlier,
– he must suffer the consequences if the court happened to be closed
on the last day on which he should have made the deposit
 Res…..Counsel

– ………..said that there is a distinction between a case where under a decree

– an act has to be performed by a party on a day certain
– and a case where the party has the liberty to perform the act within a certain time or
by a certain day;
– that in the former case, if the act cannot be performed by reason of circumstances
beyond his control,
– he will be relieved against the consequences of his default by reason of the maxim
Lex non cogit ad impossibility (the law does not compel a man to do that which he
cannot possibly perform)
– if he performs the act at the next available opportunity
 Cont.....

– but where he has to perform an act within a certain period or by a certain

date as in this case,
– the law will not take notice of the circumstance that the act became
incapable of performance by reason of circumstances beyond his control on
the last day of the period.
– Whether there is any logical or reasonable basis for making the distinction,
– …….. clear that in this case the respondent had the right or, perhaps, more
accurately, the liberty to deposit the amount in court till and including 1-1-
1960.
 Cont....

– ……….the execution court has the right to construe a decree in the light
of the applicable provisions of law
– and if in this case on a construction of the decree in the light of the
applicable provision of law,
– it found that the deposit made by the respondent on 2-1-1960 was
according to law a deposit in compliance with the terms of the decree,
– then the execution court was not varying the terms of the decree but
executing the decree as it stood after considering the effect of the
deposit in the light of the relevant law.
 Finally....

– ……there is no evidence in this case that at the time when the compromise was
entered into,
– ………..either of the parties knew that the 31st of December, 1959 and the 1st of
January, 1960, would be holidays.
– In these circumstances ………that the deposit made by the respondent on 2-1-
1960 was in substance and in effect a deposit made in terms of the compromise
decree
– and that the High Court was right in its conclusion.
– …….dismiss the appeals but in the circumstances without any order as to costs.
 Limitation
Act

SECTION 5
 Sec 5

–Extension of the prescribed period

–………for sufficient cause
–Does not apply to suit
–It will apply to the applications except those
U/Or 21 of c.p.c
.
 Cont…

– In construing Section – 5
– it is relevant to bear in mind two important consideration
– The first consideration is that
– the expiration of the period of limitation prescribed for
making an appeal gives rise to a right in favour of the
decree holder to treat the decree as binding between the
parties.
– In other words……
 Cont…..

– When the period of limitation prescribed has expired

– The decree holder has obtained
– a benefit under the law of limitation to treat the decree has
beyond challenge
– and this legal right which has accrued to the decree holder
by lapse of time should not be light heartedly disturbed .
 Cont…..

– The other consideration which cannot be ignored

– …….is that if sufficient cause for excusing delay is shown
– Discretion is given to the court to condone delay and admit
the appeal.
– This discretion has been deliberately conferred on the court
– in order that judicial power and discretion in that behalf
should be exercised to advance substantial justice.
 Principles for extension of time
under section-5

– (a) the party seeking relief has to satisfy the court

– that he had sufficient cause
– for not preferring the appeals, etc. within the prescribed time
– (b) the explanation has to cover the entire period of delay
 Cont….

– © a litigant should not be easily permitted to take away a right which

has accrued to his adversary by lapse of time
– (d) the proof of sufficient cause is a condition precedent for the
exercise of the discretionary jurisdiction vested in the court by
section-5.
– After sufficient cause is shown then the court has to enquire, whether
in its discretion it should condone the delay
 Cont….

– (e) the discretion conferred in the court is a judicial discretion and

must be exercised to advance substantial justice
– (f) no liberal view should be taken merely because the
defaulting party is Government
– (g) even sheer indifference of the Advocate cannot stand in the way
of condoning the delay when there is no laches on the part of the
litigant
 Cont…..

– (h) when there is remiss on the part of the Advocate,

– the question comes up for consideration whether the mistake
was bona fide
– or was merely a device to cover ulterior purpose such as laches
on the part of the litigant or an attempt to save limitation in an
underhand way.
– (State of Assam and others V.Naresh Chandra Das and Another,
AIR 1983 Gauhati 24)
 Case Laws

The Supreme Court in

Collector, Land Acquisition
VS
Katiji
AIR 1987 SC 1953,

laid down the following six principles for dealing

with the application under section-5.
 Cont….

1. “Ordinarily, a litigant does not stand to benefit by lodging an appeal

late
2. Refusing to condone delay can result in a meritorious matter being
thrown out at the very threshold and cause of justice being
defeated
3. As against this when delay is condoned, the highest that can happen
is that a cause would be decided on merits after hearing the parties
 Cont…..

3. Everyday’s delay must be explained does not mean that a pedantic

approach should be made.
Why not every hour’s delay, every second’s delay.
This doctrine must be applied in rational common sense in a pragmatic
manner.
 Cont….

4. When substantial justice and technical consideration are pitted against

each other,
course of substantial justice deserves to be preferred for the other side
cannot claim to have vested right in injustice being done because of a
non-deliberate delay.
 Cont…..

5.There is no presumption that delay is occasioned deliberately on the

account of culpable negligence or on account of mala fides.
A litigant does not stand to benefit by resorting to delay.
In fact, he runs a serious risk
 Cont…..

6. It must be grasped that

……judiciary is respected not on account of its power to legalize injustice
on technical grounds but because it is capable of removing injustice
and is expected to do so.”
 Case-law

Basawaraj v. Land Acquisition Officer,

(2013) 14 SCC 81
 Facts….

– An appeal for enhancement of compensation

– in land acquisition matters
– Appellant-landowners preferring appeal before High Court
– after delay of five and a half years for enhancement of compensation -
 Cont….

– - High Court rejected

– the application for condonation of delay
– and consequently appeal of the appellant-landowners
 Cont….

– - Before Supreme Court

– they contended that
– High Court erred in not condoning delay
– whereas in earlier cases it had condoned delay by depriving
landowners from interest for the delay period
 Condonation of delay

– Approach of courts while condoning delay

– Held, discretion to condone delay
– has to be exercised judiciously
– based on facts and circumstances of each case
– `Sufficient cause' cannot be liberally interpreted if negligence, inaction
or lack of bona fides is attributed to the party -
 Cont….

– Even though limitation may harshly affect rights of a party

– but it has to be applied with all its rigour when prescribed by statute –
– Courts have no choice but to give effect to the same –
– Result flowing from statutory provision is never an evil –
– Inconvenience not ground for interpreting a statute - Courts do not have
power to extend period of limitation based on equitable grounds -
 Cont….

– If courts start substituting period of limitation

– then it would amount to legislation, which is impermissible
– If party acted with negligence, lack of bona fides or inaction then there
cannot be any justified ground for condoning the delay
– There is no justification in condoning delay by imposing conditions
 Cont…..

– Each application for condonation of delay

– has to be decided within the framework laid down by Supreme Court –
– If courts start condoning delay where no sufficient cause was made out
– by imposing conditions then that would amount to violation of
statutory principles and showing utter disregard to legislature,
 Cont…..

– Distinction between sufficient cause and good cause

– Held, sufficient cause means a cause for which a party could not
be blamed for his absence –
– A party should not have acted with negligence or lack of bona
fides –
– Degree of proof is less in case of good cause whereas it is higher
in case of sufficient cause
 Object

– - Held, it is founded on public policy with aim of securing peace,

– to suppress fraud and perjury,
– to quicken diligence and
– to prevent oppression –
– It seeks to bury all acts of the past which have not been agitated
unexplainably and have become stale due to lapse of time,
Finally…..

Held, any order on condonation of delay without

considering sufficient cause unwarranted –
 Under these circumstances High Courts must appreciate
that they were deciding an application under Limitation
Act
 Benefit of illegal or irregular order cannot be extended to
those who are similarly situated
As appellant-landowners had not made out sufficient
cause, rejection of their application for condonation of
delay was justified
 February 2010

Oriental Aroma Chemical Industries Ltd. ...Appellant

Versus
Gujarat Industrial Development Corporation ...Respondents and
another
 Question

– Whether the High Court was justified in condoning more than four

years' delay in filing of appeal by the respondents against judgment

and decree dated 30.10.2004 passed by Civil Judge ?

 Facts

– The appellant was allotted a piece of land for setting up an

industrial unit at Ankleshwar
– subject to the terms and conditions embodied in agreement of
licence dated 2.4.1976
– demanded Rs.2,69,895/- towards water charges.
– For next 10 years, the parties entered into long correspondence
on the issue of levy of water charges, etc.
– Finally, respondent issued bill dated 13.1.1996 requiring the
appellant to pay Rs.22,96,207/- towards water charges.
 Next….
– The appellant challenged the same
– filed a suit.
– The summons issued by the trial Court were duly served upon the
respondents
– but no written statement was filed on their behalf to controvert
the averments contained in the plaint and
– none appeared on the dates of hearing despite the fact that the
case was adjourned on more than one occasion.
– The suit was finally decreed on 30.10.2004 and it was declared that
the appellant is not liable to pay Rs.22,96,207/- by way of minimum
charges for water for the period between 1978 and 16.4.2001
 on18.11.2008,

– respondents filed an appeal against judgment and decree dated

30.10.2004
– read with Section 5 of the Limitation Act for condonation of delay
 Grounds…

– it seems that
– because of numerous transfers
– as well as it is also possible that the party might have arranged or
joined hands with some employee of the Corporation and thereby
after engaging advocate,
– no body has gone to the advocate for the purpose of giving
instruction
– or filing the written statement and as a result thereof, decree is
passed
 Cont….

– That a long span from 30.10.2004 to 18.11.2008, practically four

years time is passed

– and this has happened only because of some mistake or

mischief on the part of the staff and, therefore, the appeal could
not be preferred
 Res. Contention…

– As a matter of fact, the petitioner company being a

Government Corporation

– is bound to follow the rules and regulations as it is and

cannot deviate itself from the provisions of law.

– As a matter of fact in filing the present Appeal there is a

delay of more than 4 years.

– now the petitioner has no right to challenge the order

Cont.…

– But for the reasons best known to the appellant the correct number
of days has not been mentioned in the condonation of delay
application.

– As a matter of fact, the petitioner being a Government Corporation

has to follow the rules and regulations strictly

– and is required to give proper explanation as to why the Appeal has

not been preferred within the time frame

– said application is required to be dismissed in limine.

H.C order
– satisfied that sufficient cause is made out by the applicant
for condonation of delay.

– in view of the principles governing the discretionary

exercise of power under Section 5 of the Limitation Act,
1963,

– that sufficient cause has been stated for not filing the appeal
in time and hence, delay caused in filing appeal is to be
condoned and the application is required to be allowed
 Cont.…

– the respondents should not be penalized

– simply because the advocates appointed by the

Corporation did not bother to file written statement

– and appear before the trial Court on the dates of

hearing.
 Cont…

 The law of limitation is founded on public policy.

 The legislature does not prescribe limitation with the object of

destroying the rights of the parties

 but to ensure that they do not resort to dilatory tactics

 and seek remedy without delay.

Cont.…

– The expression "sufficient cause" employed in

Section 5 of the Indian Limitation Act, 1963

– and similar other statutes is elastic enough to

enable the courts to apply the law in a meaningful
manner

– which sub serves the ends of justice.

 Before s.c

– whether the respondents had offered any plausible/tangible

explanation for the long delay of more than four years in filing of
appeal and the High Court was justified in condoning the delay.
 S.C opinion

– impugned order makes it clear that the High Court did make a
bald reference to the application for condonation of delay filed by
the respondents but allowed the same without adverting to the
averments contained therein and the reply filed on behalf of the
appellant.
 Cont.…

– set aside the impugned order

– and remitted the case to the High Court
– for fresh disposal of the application filed by the respondents
under Section 5 of the Limitation Act
– but, do not consider it proper to adopt that course, because as
will be seen hereinafter,
– the respondents did not approach the High Court with clean
hands
 Cont.…

– the High Court committed grave error

– by condoning more than four years' delay in filing of appeal

– ignoring the judicially accepted parameters

– for exercise of discretion under Section 5 of the Limitation Act.

– In the result, the appeal is allowed

Section 6

Legal disability
 Says…..

….does not prevent

Running of limitation……
But only extends the period of limitation
????????
 Cont….

excuses an insane person,

minor
and idiot
to file suit or make an application
for the execution of a decree within the time prescribed by law
and enables him to file the suit
or make an application after the disability has ceased,
counting the period of time from the date on which the
disability ceased.
 Cont....

 If one disability supervenes and another disability

or
 one disability is followed by another without
leaving a gap the suit
 or application for execution may be filed after both
disabilities have ceased to exist.
 Cont....

o If the disability or disabilities continue till the person’s death

o then the representative of the deceased
o or on whom the title devolves is allowed to file a suit or make an
application for execution within the time allowed by law
o counting it from the death of the person.
 The conditions for the applicability......

The disability is continued only to minority,

insanity and idiocy.
This section is applicable to suits etc., brought
by ......
and not against persons under disability.
The disability must exist at the time from which
the period of limitation is to be reckoned.
 Cont.....

The proceeding in question must be a suit

or an application for the execution of a decree.
 Minors…

– Under Section 3 (1) of The Indian Majority Act of 1875, a person

becomes a major when he/she completes eighteen years.
– This computation of age is to be done after taking into account
the following two provisos discussed in section 3 (2) –
– The day on which the said individual is born is to be included as
a whole day.
– He/she is thus said to have become a major as and when the
eighteenth anniversary of that day commences.
 S.K.Yadav v. State of
Maharashtra
– In this case the court dealt with the concept of
insanity in our legal system at great length.
– It stated that courts only recognized legal insanity
and not medical insanity and that there were
substantial differences between the two.
– Even if insanity has been previously proved
medically or in a lower court of law, it has to be
proved in the higher court.
Cont…..

– Furthermore, it is to be noticed that no

such specific tests lie to prove legal insanity.
– Behaviours, antecedent, attendant and
subsequent to the event, are to be taken
into account while considering if a said
person is to be termed insane or not.
 Cont.…..

– There are four kinds of persons who may be said

to be non compos mentis (not of sound mind
– (1) an idiot;
– (2) one made non compos by illness
– (3) a lunatic or a mad man and
– (4.) one who is drunk.
 Hari Singh Gond V State of Madhya Pradesh
AIR 2009 SC 768

– An idiot is one who is of non-sane memory from his birth,

– by a perpetual infirmity,
– without lucid intervals;
– and those are said to be idiots
– who cannot count twenty, or tell the days of the week, or
who do not know their fathers or mothers, or the like
Cont…

–  Madness is permanent.
– Lunacy and madness are spoken of as
acquired insanity,
– and idiocy as natural insanity.
Cont….

– Section 6 only applies when the disability is in existence at

the time when the limitation begins to run,
– but time is not saved where disability does not exist at the
point on which limitation begins to run
– The minor must have been in existence at the time when
the cause of action accrued
– The plaintiff has therefore to prove that he attained majority
within three years of filing of the suit
 Appeals by minor not attracted

– Section 6 does not attract to the appeals

– when minors wants to prefer an appeal against the
judgement and decree passed by the trial court during his
minority in which he was represented by his guardian.
– The reason behind exclusion of s. 6 to appeal is that
– when a suit is instituted the next friend is appointed for a
defendant or the plaintiff by the court under Or 32, Code of
Civil Procedure and the decree passed in the suit in the
presence of the guardian ad litem is binding on the minor
 Burden of proof

– On the person who relies on ....

– ....such provisions
– Computation of period.....
– ......limitation for a minor....
– The date on which ..he attains majority
– Must be excluded from calculation
 Sec.9

– Continuous running of time…

– Where once time has begun to run,
– no subsequent disability
– or inability to institute a suit or to make an application stops it.
 Computation....

– Calculation of period of limitation

– Sec.12 to 18 deals........
– Ex. Pronote......acc to schedule.....3 years
– Appeal......90 days....etc.....
– In computing the period of limitation prescribed for any suit....
 Cont.....

– The data shown in the column III of the schedule

– as the day from which the period of limitation begins to run shall be
excluded.
 In an Appeal

– The day on which the period begins to run

– The day on which the judgment was pronounced
– The time requisite for obtaining a copy of the decree, sentence or
order
– The time requisite for obtaining a copy of the judgment
Case Law

State of U.P.
VS
Maharaja Narain
AIR 1968 SC 960
 Cont….

– The question whether the appeal preferred was in time or not

– should be considered on the basis of information available
from the copy of the judgment and decree filed along with
the memorandum of appeal
– and not from other copies which the party might have got
and used for other purposes with which the court has nothing
to do
 In revision

– The following periods shall be excluded

– (a) the day on which the time begins to run
– (b) the day on which the judgment was pronounced
– © the time requisite for obtaining a copy of the decree
– The time requisite for obtaining a copy of the judgment
 To set aside an award

– (a) the day on which time begins to run

– (b) the time requisite for obtaining a copy of the award

SECTION - 17

– Where, in the case of any suit or

application for which a period of
limitation is prescribed by this
Act,-   
 Cont….

– (a) the suit or application is  based upon the fraud of the
defendant or respondent or his agent; or

– (b)   the knowledge of the right or title on which a suit or

application is founded is concealed by  the fraud of  any such
person as aforesaid; or
 Cont…..

– (c) the suit or application is for  relief from the consequences of a

mistake; or

– (d) where any document necessary to establish the right  of the

plaintiff or applicant has been fraudulently concealed from him;
 Cont…

– the period of limitation shall not begin to run until the plaintiff or
applicant has discovered the fraud or the mistake
– with reasonable diligence, have discovered it;
– or in the case of a concealed document, until the plaintiff or the
applicant first  had the means of producing the concealed document or
compelling its production:
Cont….

– Provided that nothing in this section

– shall enable any suit to be instituted or
application to be
– made to recover or enforce any charge against,
– or set aside any transaction affecting, any
property which
 Cont….

– (i) in  the case of fraud, has been purchased for  valuable
consideration by a  person who  was not a  party to the
fraud 
– and  did not at  the time of the purchase know,
– or have reason to believe, that any fraud had been
committed, or       
Cont….

– (ii) in the case of mistake,

– has been purchased for  valuable consideration
subsequently to the  
– transaction in which the mistake was made, by a person
who  did not  know,  or have reason  to believe, that the
mistake had been made
 Cont….

– (iii) in the case of a concealed document, has been 

purchased for valuable consideration by a person   
– who was not a party to the concealment  and,  did not at 
the time of purchase know, or have reason to  
– believe, that the  document had been concealed. 
 Cont….

– (2) Where a judgment-debtor has, by fraud or force,

prevented the execution of a decree or order within the
period of limitation,
– the court may, on the application of the judgment-creditor
made after the expiry of the said period extend the period for
execution of the decree or order:
Cont….

– Provided that such application is

– made within one year from the date of the discovery of
the  fraud
– or the cessation of  force, as the case may be.