this Court and of the Apex Court referred to hereinabove, the fact that
time taken to pursue a complaint under the Consumer Protection Act
can be excluded in terms of Section 14 of the Limitation Act, 1963 is
no longer res integra and, as such, the contention of Mr. Tamba,
learned Counsel appearing for the respondents No.2 to 5 that such time
cannot be excluded, cannot be accepted. In such circumstances, the
fact that the proceedings were bonafide are apparent in the context that
the proceedings were diligently pursued by the appellants before the
State Commission and, in fact, on perusal of the Judgment of the
learned State Commission, it is clearly held that the appellants were
granted leave to pursue their claim by filing a civil suit. As such, the
suit filed by the appellant is within the period of limitation in terms of
Article 54 of the Limitation Act, 1963. The first point for
determination is answered accordingly.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 206 OF 2009
WITH
MISC. CIVIL APPLICATION NO. 182/2015
Shangrilla Apartments Co-op.
Housing Society Ltd.
Versus
M/s. Rivin Builders,
CORAM :- F.M. REIS & K.L. WADANE, JJ.
Date : - 08/07/2015.
Citation:2016(2) MHLJ 939
Heard Mr. M. B. da Costa, learned Senior Counsel
appearing for the appellants, Mr. A.F. Diniz, learned Counsel appearing
for respondent No.1 and Mr. V.R. Tamba, learned Counsel appearing
for the respondent No.2 to 5. 3 fa206-09
2. The above appeal, inter alia, challenges the Judgment and
Decree passed by the learned Civil Judge, Senior Division, at Panaji,
in Special Civil Suit No.130/2000 dated 7th July, 2009 whereby the suit
filed by the appellants came to be dismissed. During the pendency of
the appeal, the appellants filed an application under Order 41, Rule 27
of the Code of Civil Procedure to produce three documents, inter alia,
consisting of correspondence with the Registrar of Co-operative
Societies and the confirmation of the members of the appellant-Society.
The learned Counsel appearing for the respondents points out that in
case this Court allows production of the said documents, evidence
would have to be recorded to examine the veracity of such documents
as, according to the learned Counsel appearing for the respondents,
they wish to produce documents rebutting the contents thereof.
Considering that the documents are from the records of a public office
and prima facie authenticity thereof cannot be disputed and appear to
be relevant to decide the matter under controversy, we find it
appropriate to grant leave to the appellants under Order 41, Rule 27 of
the CPC to rely upon such documents. No doubt, such documents
would have to be produced in evidence after examining the appellant
and giving an opportunity to the respondents to rebut such evidence, if
so advised. Subject to the above, the application filed by the appellants
under Order 41, Rule 27 of the CPC is allowed.
3. Mr. M.B. da Costa, learned Senior Counsel appearing for
the appellants has also advanced elaborate arguments on merits of the
dispute in the present suit. The main grievance of the appellants is that
though the appellants No.2 to 4 are occupying individual apartments in
the building located in the subject-property, the conveyance of the
property has not been executed in favour of the appellant-Society, by
the respondents. The learned Senior Counsel further points out that
the learned Trial Judge, whilst passing the impugned Judgment, has
erroneously taken a view that the registration of the Society has not
been produced and that the requirements as contemplated in the
agreement have not been satisfied by the appellants to be entitle for the
reliefs sought in the suit. The learned Senior Counsel has minutely
taken us through the evidence, as well as the material on record to
point out that the learned Trial Judge, by the impugned Judgment, has
erroneously refused to grant the reliefs sought in the suit. We have not
elaborately recorded all the other submissions of the learned Senior
Counsel, on merits, taking note of the view that we propose to take
while deciding the present appeal.
4. On the other hand, Shri A. F. Diniz, learned Counsel
appearing for the respondent No.1, submits that as far as respondent
No.2 is concerned, it is not disputed that the property has to be
conveyed in favour of the Society, but, according to him, in view of the
objections raised by the respondent No.1, who is the owner of the
property, such an exercise could not be completed till this date.
5. Mr. V. R. Tamba, learned Counsel appearing for the
respondents No.2 to 5, however, submits that there is no privity of
contract between the appellants and the respondent no.1, so as to get
the relief as prayed for in the suit as against the respondent No.1, but,
however, both the learned Counsel have raised the objection that the
suit itself is barred by limitation and consequently, the question of
examining the grievances of the appellants, on merits, would not arise.
As such, we permitted the learned Counsel to address us on the
question of limitation.
6. Mr. Tamba, learned Counsel appearing for the respondents
No.2 to 5 has submitted that there was a notice served on the
respondent No.1 on 24/4/1995, calling upon the respondents No.1 and
2 to execute the sale deed in favour of the appellants. The learned
Counsel further points out that the suit came to be filed by the
appellants on 21.12.2000 which is hopelessly barred by limitation. The
learned Counsel further submits that in terms of Article 54 of the
Limitation Act, such a suit has to be filed from the date the defendants
show disinclination to perform their part of the contract. The learned
Counsel, as such, submits that as the notice was issued in the year 1995
and the respondents have failed to execute the sale deed, the suit filed
in the year 2000 is hopelessly barred by limitation.
7. Mr. A. F. Diniz, learned Counsel appearing for the
respondent No.1 has also supported the contention of Mr. Tamba,
learned Counsel appearing for the respondents No.2 to 5. Mr. Diniz,
however, points out that though the appellants had filed Complaint
No.24/1995 on 26/5/1995 before the Goa State Consumer Disputes
Redressal Commission, (“State Commission” for short) and such
proceedings came to be disposed of by an order dated 9th March,
1999, this period cannot be excluded for the purpose of computing the
period of limitation. The learned Counsel further submits that the
proceedings from the State Commission are not civil proceedings nor
the State Commission is a Court and, consequently, the question of
exclusion of the period under Section 14 of the Limitation Act, 1963
does not arise at all. The learned Counsel, as such, submits that the
suit itself is barred by limitation.
8. On the other hand, Mr. M. B. Da Costa, learned Senior
Counsel appearing for the appellants has submitted that as far as the
respondent No.1 is concerned, there was no reply filed by the
respondent No.1 to the said notice dated 24/4/1995 showing any
disinclination of the execution of the sale deed. The learned Senior
Counsel further submits that immediately, thereafter, Complaint
No.24/1995 was filed before the State Commission and ultimately, the
said complaint came to be disposed of by an order dated 9th March,
1999, granting leave to the appellants to file civil proceedings to claim
their reliefs. The learned Senior Counsel further points out that
immediately, thereafter, on 21st December, 2000, the appellants filed
the suit, bearing Special Civil Suit No.130/2000 and consequently, the
period spent in the proceedings before the State Commission have to
be excluded in terms of Section 14 of the Limitation Act, 1963. The
learned Senior Counsel further submits that the State Commission is a
Court and in support of his submissions, the learned Senior Counsel
has relied upon the Judgments of the Apex Court reported in (2011)
10 SCC 316 in the case of Trans Mediterranean Airways vs.
Universal Exports and another and (2000) 5 SCC 355 in the case of
P. Sarathy vs. State Bank of India.
9. Upon hearing the learned Counsel appearing for the
respective parties, the following points for determination arise in the
present appeal :
(1) Whether the suit filed by the appellants is barred by
limitation ?
(2) Whether the learned Trial Judge was justified to
pass the impugned Judgment, refusing the relief to the
appellants to direct the respondents to convey the disputed
property in favour of the appellants ?
10. Before we examine the contentions of the learned Counsel
appearing for the respondents that the suit is barred by limitation, we
would record the undisputed facts of the present case as reflected in
the records placed before us. Initially, notice calling upon the
respondent No.1 to execute the sale deed was issued on 24th April,
1995 and the respondent No.1 did not raise any objection nor send any
reply to establish any disinclination in executing the sale deed. The
respondent No.2, however, sent reply only showing willingness to
cooperate in the execution of the sale deed and contending that the
respondent No.1 was raising a dispute to execute such a sale deed.
The appellants, thereafter, filed a complaint No. 24/1995, before the
State Commission. All the respondents were parties to the said
proceedings before the State Commission. The complaint came to be
disposed of by an order dated 9th March, 1999. On perusal of the said
order, we find that the State Commission, in fact, granted leave to the
appellants to pursue their claim by filing a civil suit. Immediately,
thereafter, on 21st December, 2000, the appellants filed the suit, inter
alia, seeking the relief of specific performance and directions to the
respondents to convey the subject-property. In such circumstances, in
case the time spent in pursuing the complaint before the State
Commission is excluded, the suit is not barred by limitation is not
disputed by the respondents.
11. As such, the only aspect to be examined is whether the
time spent before the Consumer Forum can be excluded in terms of
Section 14 of the Limitation Act, 1963. In this connection, it would
also be appropriate to note that the fact that the proceedings were
initiated bonafide and that the respondents were also parties to such
proceedings and defending their claim, is also undisputed. In this
connection, a Division Bench of this Court in a Judgment reported in
AIR 2001 BOMBAY 327 in the case of M/s. Deokar Exports Pvt.
Ltd., vs. new India Assurance Co. Ltd., has taken a view that the time
taken in pursuing a complaint before the Consumer Forum is to be
excluded in terms of Section 14 of the Limitation Act, by observing at
para 10, thus:
“10. We may note that on 10-2-1990, fire broke out
and the machinery was damaged. The respondent
was immediately informed orally by the appellant.
However, the respondent was informed in writing on
17-2-1990. Correspondence followed between the
"parties. The respondent declined to pay the claim of
the appellant on 18-4-1990. The appellant
approached the said NCDRC on 20-8-1991. The
same was decided by the said forum on 23-9-1992. It
came to be rejected on the ground that considering
the contention of the respondent there was no
deficiency in service. Therefore, it has no
jurisdiction and appellant can avail of any other
remedy available. Article 44(b) of the Limitation Act,
1963 provides three years limitation from the date of
occurrence causing loss or where the claim on the
policy is denied the date of such denial. Section 14
deals with exclusion of time of proceeding bona fide
in Court without jurisdiction. Section 14(1) is 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
instance or of 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."
Considering the above position, it cannot be
accepted that the resort by the appellant to the said
forum of NCDRC was not in good faith or bona fide
or it was deliberately chosen knowing full well that
it was incompetent to deal with it. The order passed
by the said Forum shows that the appellant has
approached the said Forum bona fide and hence the
respondent was permitted to avail of any other
remedy available. At the most, it may be said that
the further steps by the appellant of going before the
Apex Court by filing S.L.P, was not in good faith.
However, in view of Section 14(1) of the Limitation
Act, the appellant is entitled for exclusion of the
period from 20th August, 1991 to 30-9-1992. The
learned counsel for the respondent has rightly relied
upon the judgment in the matter of Saushish
Diamonds Ltd. v. National Insurance Co. Ltd.
MANU/SC/1175/1998 : (1998)8SCC357 . In the
said case, precisely the same position concurred.
The appellant had approached the National
Commission for Consumer Redressal. The said
Commission in its order held that the Insurance
Company has repudiated the claim. Hence, the relief
cannot be granted by it. This order came to be
challenged before the Apex Court. It was observed
as under :--
"..... Under these circumstances, the Commission
rightly relegated the parties to a civil action. It is
true that limitation has run out against the
appellant during the pendency of the
proceedings. Therefore, the time taken between
the date of the filing of the claim before the
Commission and the date of its disposal, namely,
28-9-1995 would be considered by the Civil
Court for exclusion under Section 14 of the
Limitation Act, 1963."
In view of the above position, we hold that the suit
filed by the appellant was within limitation.”
The Karnataka High Court, in the Judgment reported in ILR 2004 KAR
4322, SCC Online Karnataka 121 in the case of The City Municipal
Council vs. M/s. S.A. Lateef & Co. Andhra Pradesh, has also taken a
similar view that the period taken in pursuing remedy under the
Consumer Protection Act can be excluded in terms of Section 14 of the
Limitation Act by observing thus :
“LIMITATION ACT, 1963 (CENTRAL ACT NO.
36 OF 1963) – SECTION 14-Exclusion of time of
proceedings 'Bonafide' in Court without jurisdiction
– Computing the period of limitation – Prosecuting
with due diligence in another Civil Proceeding in
good faith under Consumer Protection Act. The
plaintiff had filed a complaint before District
Consumer Forum for recovery of unpaid price. The
complaint was allowed and defendant was directed
to pay the amount. In the appeal, the State
Commission by its order dated 16.1.1996, held that
the subject matter of dispute is not governed by
Consumer Protection Act and gave liberty to the
plaintiff to approach Civil Court; Accordingly suit is
filed. HELD – Provisions of Section 14 declare that
bonafidely and with due diligence if a person is
prosecuting any Civil Proceedings, in any other
Court which has no competent jurisdiction, the
period spent in that litigation is to be deducted. The
District Consumer Forum is very much a Court of
Civil jurisdiction and the proceedings before the
Consumer Forum are Civil Proceedings. Merely by
the fact that State Forum has held that the complaint
is not maintainable and that the plaintiff is not a
consumer within the definition, is not a ground by
itself to infer that there was lack of diligence or
bonafides on the part of the plaintiff. The plaintiff
was assisted by the Counsel. The District Forum
entertained the complaint and granted a decree. The
limitation for filing the suit in the normal course was
22.3.96. The complaint before the Forum was filed
on 7.1.95 and proceedings under Consumer
Protection Act finally terminated on 9.1.97. About 2
years and 8 months is spent in litigation before
Consumer Forum. If the said period is deducted, the
present suit filed on 12.1.98 is well within the
limitation. Therefore, the grant of benefit of Section
14 of Limitation Act by Trial Court is sound and
proper.”
In AIR 1995 SC 1428, in the case of Laxmi Engineering Works vs.
P.S.G. Industrial Institute, the Apex Court has observed, inter alia, at
para 26 that in case the appellant chooses to file a suit, the period taken
in pursuing the complaint under the Consumer Protection Act is to be
excluded in terms of Section 14 of the Limitation Act. A similar view
has also been taken by the Apex Court in the Judgment reported in
(1998) 8 SCC 357 in the case of Saushish Diamonds Ltd. vs.
National Insurance Co. Ltd..
12. Taking note of the observations of the Division Bench of
this Court and of the Apex Court referred to hereinabove, the fact that
time taken to pursue a complaint under the Consumer Protection Act
can be excluded in terms of Section 14 of the Limitation Act, 1963 is
no longer res integra and, as such, the contention of Mr. Tamba,
learned Counsel appearing for the respondents No.2 to 5 that such time
cannot be excluded, cannot be accepted. In such circumstances, the
fact that the proceedings were bonafide are apparent in the context that
the proceedings were diligently pursued by the appellants before the
State Commission and, in fact, on perusal of the Judgment of the
learned State Commission, it is clearly held that the appellants were
granted leave to pursue their claim by filing a civil suit. As such, the
suit filed by the appellant is within the period of limitation in terms of
Article 54 of the Limitation Act, 1963. The first point for
determination is answered accordingly.
13. With regard to the second point for determination, the
contention of Shri M. B. da Costa, learned Senior Counsel appearing
for the appellants is that the merits of the dispute would have to be
considered in the context of the documents sought to be produced by
the appellants under Order 41, Rule 27 of the CPC. As already pointed
out herein above, leave to produce the said documents has been granted
subject to the respondents leading rebuttal evidence, if they so desire.
In such circumstances, witnesses would have to be examined to
produce such documents and liberty would have to be given to the
respondents, to cross examine such witnesses, if they so desire. As
such, we find it appropriate, as far as second point for determination is
concerned, to quash and set aside the impugned Judgment and Decree
of the learned Trial Judge and remand the matter to the learned Trial
Judge to decide the suit filed by the appellants, afresh, in the light of 17 fa206-09
the above observations.
14. In view of the above, we pass the following :
(I) The impugned Judgment and Decree dated 7th July, 2009
passed by the learned Civil Judge, Senior Division, “B” Court, Panaji,
in Special Civil Suit No.130/2000 is quashed and set aside.
(II) Special Civil Suit No.130/2000 is restored to the file of
the learned Civil Judge, Senior Division, “B” Court, Panaji is directed
to decide the suit afresh in the light of the observations made herein
above, after hearing the parties, in accordance with law.
(III) The appeal stands disposed of accordingly, with no order
as to costs.
(IV) The parties are directed to appear before the learned Trial
Judge on 17th August, 2015, at 10.00 a.m.
In view of the disposal of the First Appeal, the civil
application stands disposed of accordingly.
K.L. WADANE, J. F.M. REIS, J.
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