The transaction in question would, therefore, be
governed by Article 18 of the Limitation Act, which
prescribes limitation of 3 years from the date when
the work is done, as it is the case where the price of
work done by the plaintiff for the defendants at his
request and no time has been fixed for payment. In
this respect, the provision of section 12(1) of the
Limitation Act is relevant and it states that in
computing the period of limitation for any suit,
appeal or application, the day from which such period
is to be reckoned shall be excluded. The question is
therefore, from which date, the period, in the instant
case, has to be reckoned.
9. The avernment made in the plaint, as rightly
pointed out by Shri. P.R. Patil is that the plaintiff
has supplied printed list to the defendant Corporation
prior to 27.10.2001, which would mean that the
material was supplied on 26.10.2001. Shri.Yawalkar,
the learned Counsel appearing for the plaintiff states
that the plaint averments have to be read as whole
along with the documents produced on record and the
case as understood by the parties, including the
defendant. As pointed out earlier, the witness
produced by the defendant DW1 Baburam Deoram Sapkale,
in clear terms, admitted in his cross examination,
that the material was delivered to the Municipal
Council on 27.10.2001.
10. In my view, the pleadings are required to be
considered as a whole, along with the documentary and
oral evidence coupled with the fact, as to how the
parties have understood the case, to arrive at the
date on which the work was done, as contemplated by
Article 18 of the Limitation Act. In the instant case,
keeping in view the above, the date 27.10.2001, will be
the date to reckon the period of limitation, as
provided by Article 18. While counting this, the date
of 27.10.2001 will have to be excluded, in view of the
provisions of section 12(1) of the Limitation Act and
3 years period shall be reckoned w.e.f. 28th October,
2001, which shall come to an end on 27.10.2004. Thus,
the suit filed by the plaintiff on 27.10.2004, is
within a period of limitation and there is no error
committed by the Trial Court, in that respect.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
FIRST APPEAL NO. 2592 OF 2009
Municipal Corporation of City of Jalgaon, Kavita Vs Offset, Jalgaon
CORAM : R.K. DESHPANDE, J.)
DATED : 16th October, 2009
1. Notice in this appeal was issued on 29th
September, 2009. Shri.S.B. Yawalkar, the learned
Counsel appeared for sole respondent and waived the
service of notice. The parties agreed that the only
question involved in the suit was regarding the plea
of limitation and hence, the matter be disposed of at
the stage of admission. Hence, notice for final
disposal of the appeal was issued on the aforesaid
date, Shri.Yawalkar, the learned Council waived the
service of notice for the respondent. Admit. The
matter is heard, by consent of parties, at length.
2. This appeal is preferred by the original
defendant challenging the judgment and decree dated
04.05.2009 passed by the learned IIIrd Joint Civil
Judge, Senior Division, Jalgaon in Special Civil Suit
No.322/2004, filed by the respondent, who is the
original plaintiff. The parties shall be referred
hereafter as per their original status as “plaintiff”
and “defendant”.
3. The plaintiff is proprietary firm and filed
special civil suit no.322/2004 on 27.10.2004 for
recovery of Rs.3,54,860/,
for which a bill was
submitted by the plaintiff, to the defendant on 31st
October, 2001 for supply of printed material i.e.
voters list, to the defendant Municipal Corporation,
on 27.10.2001.
4. The defendant resisted the claim of the
plaintiff on merits and also on the ground that the
suit was not tenable and it was barred by limitation.
Relying upon the provisions of Articles 14 and 18 of
the Indian Limitation Act, it was stand of the
defendant corporation that the averments in the
plaint, that the printed voters list were supplied to
the defendantcorporation
prior to 27.10.2001, would
mean that the material was supplied on 26.10.2001 and
the suit was filed on 27.10.2004 which was beyond the
period of three years, as specified under the
aforesaid provisions of Limitation Act. It was further
the stand that even if it is assumed that work was
done on 27.10.2001, the period of 3 years would expire
on 26.10.2001 and hence the suit filed on 27.10.2001,
was barred by limitation. It was further the stand of
the defendant that the section 487 of the Bombay
Provincial Municipal Corporation Act, 1949 requires, a
notice to be given of the institution of the suit, as
condition precedent and thereafter, the suit is
required to be filed within a period of six months,
from the date of giving of such notice. It was the
stand that no notice was given by the plaintiff, as
required by section 487 and the suit was not filed
within six months, from the date of giving of such
notice. Thus, on these two grounds the defendant
sought dismissal of suit.
5. The Trial Court recorded a finding that the
plaintiff has proved that an amount of Rs.3,52,220/is
legally due from the defendant. It was held that
the plaintiff established that he has completed the
work as per requirement of the defendant Corporation
within time. The plaintiff also demanded the bill to
the municipal corporation and same has, however, not
been paid by the defendant. On the question of
limitation, as provided by Articles 14 and 18 of the
Limitation Act, the Trial Court held that the printed
material was supplied on 27.10.2001 and the suit was
filed on 27.10.2004, hence the same was within a
period of limitation, as per the provisions of those
Articles. It was further held that the suit filed by
the plaintiff for recovery of amount of bill, is not
in pursuance of or in execution of the act and hence
the notice under section 487 of the Bombay Provincial
and Municipal Corporation Act, was not required. The
trial court decreed the suit, by directing the
defendant to pay an amount of Rs.3,54,860/,
to the
plaintiff, within three months, from the date of
order, along with interest at the rate of 6% p.a. from
December, 2001, till its actual realisation.
6. The original defendant, is thus in the
instant appeal. In this appeal, Shri. Patil, the
learned Counsel appearing for the defendant reiterated
the stand taken before Trial Court and relied upon two
Judgments reported in (i) AIR 1932 Calcutta 275
(Jatindra Mohan Ghose V/s Rebati Mohan Das and others)
(ii) the decision of the Privy Council reported in AIR
1934 Privy Council 96 (Revati Mohan Das V/s Jatindra
Mohan Ghosh and others), in support of his second
contentions.
7. As against the aforesaid submission of Shri.
P.R. Patil, Shri.Yawalkar, the learned Counsel
appearing for the respondentplaintiff
has urged that
the question of limitation, is a mixed question of law
and fact and is required to be adjudicated after
leading evidence. According to him, the reading the
plaint as a whole with evidence, makes it clear that
the case is that the work was done on 27.10.2001. He
further submits that the witness of the defendant
himself admitted in his evidence in clear terms, that
the printed material was supplied on 27.10.2001. The
suit was filed on 27.10.2004, which was within a
period of three years and hence not barred by
limitation. He urged that while counting the period of
three years, the date of 27.10.2001 will have to be
excluded, in view of the provisions of section 12(1)
r/w section 4 of the Indian Limitation Act. He
therefore supported the findings of the Trial Court.
On the aspect of section 487, the learned Counsel
relied upon the decision of the Apex Court reported in
AIR 1965 SC 555 (The Poona City Municipal Corporation
V/s Dattatraya Nagesh Deodhar) and the decision of the
Division Bench reported in 1992 Mh.L.J. 1468 (Pune
Municipal Corporation and another V/s Mohan
Shrikrishna Assava).
8. The first contention raised by the learned
Counsel Shri.P.R. Patil is based upon the provisions
of Articles 14 and 18 of the Limitation Act, which are
reproduced below
14 For the price of goods Three years The date of
sold and delivered delivery of
where no fixed period goods.
Of credit is agreed
upon.
18 For the price of work Three years When the work
done by the plaintiff is done.
For the defendant at
his request, where no
time has been fixed
for payment.
The Article 14 reproduced above, would not be
attracted in the present case for the reason, that
there was no question of fixation of period of credit,
as contemplated by the said provision. The transaction
in question would, therefore, be governed by Article
18 of the Limitation Act reproduced above, which
prescribes limitation of 3 years from the date when
the work is done, as it is the case where the price of
work done by the plaintiff for the defendants at his
request and no time has been fixed for payment. In
this respect, the provision of section 12(1) of the
Limitation Act is relevant and it states that in
computing the period of limitation for any suit,
appeal or application, the day from which such period
is to be reckoned shall be excluded. The question is
therefore, from which date, the period, in the instant
case, has to be reckoned.
9. The avernment made in the plaint, as rightly
pointed out by Shri. P.R. Patil is that the plaintiff
has supplied printed list to the defendant Corporation
prior to 27.10.2001, which would mean that the
material was supplied on 26.10.2001. Shri.Yawalkar,
the learned Counsel appearing for the plaintiff states
that the plaint averments have to be read as whole
along with the documents produced on record and the
case as understood by the parties, including the
defendant. As pointed out earlier, the witness
produced by the defendant DW1 Baburam Deoram Sapkale,
in clear terms, admitted in his cross examination,
that the material was delivered to the Municipal
Council on 27.10.2001. The plaintiff has produced the
document on record which the letter dated 16.10.2001
(Exhibit32)
another letter dated 16.10.2001
(Exhibit41),
by which the plaintiff was called upon
to deliver the material by evening of 27.10.2001. The
Exhibit38,
is the copy of the notice dated 16.10.2004
issued by the plaintiff to the defendant wherein, it
has been stated that the printed voters list were
supplied within time. The Exhibit33
and 34 are the
delivery challans dated 27.10.2001.
10. In my view, the pleadings are required to be
considered as a whole, along with the documentary and
oral evidence coupled with the fact, as to how the
parties have understood the case, to arrive at the
date on which the work was done, as contemplated by
Article 18 of the Limitation Act. In the instant case,
keeping in view the above, the date 27.10.2001, will be
the date to reckon the period of limitation, as
provided by Article 18. While counting this, the date
of 27.10.2001 will have to be excluded, in view of the
provisions of section 12(1) of the Limitation Act and
3 years period shall be reckoned w.e.f. 28th October,
2001, which shall come to an end on 27.10.2004. Thus,
the suit filed by the plaintiff on 27.10.2004, is
within a period of limitation and there is no error
committed by the Trial Court, in that respect.
11. In the context of the question of reckoning
the period of limitation, the decision of the Apex
Court reported in (2000) 8 Supreme Court Cases 649
(Tarun Prasad Chatterjee V/s Dinanath Sharma) is
relevant. The question involved in the said appeal
before the Apex Court was whether in computing the
period of limitation, as provided in section 81(1) of
the Representation of the People Act, 1951, the date
of election of the returned candidate should be
excluded or not. The provision of section 81(1) of the
Representation of People Act requires, the Election
Petition to be preferred within 45 days of the date of
election of the returned candidate. Relying upon
section 9 of the General Clauses Act, 1897, it was
held that ordinarily in computing the period of time
prescribed, the rule observed is to exclude the first
and include the last day. Thus, after excluding the
first day from computing the period of limitation, it
was held that the Election Petition was filed in time.
Thus, this judgment of the Apex Court clearly supports
the aforesaid view, which I have taken in the instant
case.
12. Section 487(1)(a) and (b) relied upon by the
learned Counsel for the defendant Shri. P.R. Patil is
reproduced below :Section
487(1):No
suit shall be instituted
against the Corporation or against the
Commissioner, or the Transport Manager, or
against any municipal officer or servant, in
respect of any act done or purported to be
done in pursuance or execution or intended
execution of this Act or in respect of any
alleged neglect or default in the execution
of this Act:(
a) until the expiration of one month next
after notice in writing has been, in the case
of the Corporation, left at the chief
municipal office and, in the case of the
Commissioner or of the Transport Manager or
of a municipal officer or servant delivered
to him or left at his office or place of
abode, stating with reasonable particularity
the cause of action and the name and place of
abode of the intending plaintiff and of his
attorney, advocate, pleader or agent, if any,
for the purpose of such suit, nor
(b) unless it is commenced within six months
next after the accrual of the cause of
action.
This was a suit filed by the plaintiff for
recovery of money due to him for the goods supplied.
Thus it is contractual obligation of payment of money
which the defendant has incurred. The defendant has
neglected to make the payment and hence, the suit in
question has been instituted. In order to attract the
provisions of section 487, what is required to be
pointed out is that the suit, has been instituted
against the Corporation, “in respect of any act done
or purported to be done in pursuance or execution or
intended execution of this act or in respect of any
alleged neglect or default in the execution of this
act”. The first part of the provision requires any act
to be done or purported to be done in pursuance or
execution or intended execution of this act. The act
of withholding of money due to the plaintiff may be an
act of neglect or default in payment, but it does not
at all fall in the first part of the provision. The
second part is in respect of any alleged neglect or
default in the execution of this act. Shri.Patil, the
learned Counsel for the defendant could not point out
any provision, either under the Act or under the Rule,
empowering the defendant to withhold or neglect or
commit default in the payment, for any reason. He has
also not pointed out any provision in the contract
entered into between the plaintiff and defendant which
permits the defendant to withhold the payment on any
count. Thus, the act of withholding payment in
question, is neither in pursuance nor in execution of
the act. Even if it is assumed that the contract in
question was entered into, in execution of the act,
the neglect, default or withholding of payment in
question, is not authorized by contract and the same
therefore, does not fall within the expression “in
respect of alleged neglect or default, in execution of
this act”. As a matter of fact, there seems to be no
dispute that the plaintiff was entitled to receive the
amount, as he had supplied the printed material within
stipulated period. In view of this, in my opinion, the
provision of section 487 of the Act, is not at all
attracted in the instant case.
13. Shri.Yawalkar, the learned Counsel appearing
for the Respondent has relied upon the decision of the
Apex Court in Poona City Municipal Corporation’s case
cited supra in which the provision of section 487 of
the Maharashtra Provincial Municipal Corporations Act,
1949 is considered. It was the suit filed by the
plaintiff for recovery of 10% of amount deducted by
the Municipal Corporation towards the octroi in
accordance with Rule 18(3) of the Octroi Rules which
has been framed by the Municipal Authorities. The
plaintiff had supplied the goods to the municipal
Corporation worth Rs.73,650/,
the defendant municipal
corporation made the payment but deducted 10% amount
towards octroi as per the aforesaid provision. Hence
the suit was filed to recover the said amount. The
Trial Court held that the suit was not barred by
limitation, however it was held that the deduction of
10% by the corporation was valid and the suit was
dismissed. The District Court, Poona disagreed with
the findings of the Trial Court and held that the
deduction of 10% was not valid in law, however
dismissed the suit as barred by limitation. In Appeal,
the High Court, answered all the questions in favour
of the plaintiff and decreed the suit. The question
raised before the Apex Court was whether the suit was
barred by limitation, in view of section 487 of the
said act. The Apex Court held in para 21 as under :“
The benefit of this section would be
available to the Corporation only if it was
hold that this deduction of ten per cent was
“an act done or purported to be done in
pursuance or execution or intended execution
of this Act”. We have already held that this
levy was not in pursuance or execution of the
Act. It is equally clear that in view of the
provisions of section 127(4) ( to which we
have already referred) the levy could not be
said to be “purported to be done in pursuance
or execution or intended execution of the
Act.” For, what is plainly prohibited by the
Act cannot be claimed to be purported to be
done in pursuance or intended execution of
the Act. Our conclusion is that the High
Court has rightly held that the suit was not
barred by limitation.
It is thus apparent that the suit is held to
be maintainable, as levy of octroi was not found to be
in pursuance or execution of the act and it was
further held that what is plainly prohibited by the
Act, cannot be claimed to be purported to be done, in
pursuance or intended execution of the Act. This
Judgment, in my view clearly supports the view, which
I have taken that the neglect to pay is not an act or
omission in the execution of this act.
14. The second judgment relied upon by the
learned Counsel for the plaintiff Shri.Yawalkar in
Mohan Shrikrishna Assava’s case cited supra considered
the question of payment of damages as a result of the
illegal and malicious detention of the truck and
deprivation of the use thereof by the defendant
Municipal Corporation, it was held that this was not
an act in pursuance or execution or intended execution
of the act or in neglect or default in the execution
of the act. It was held that refusal to release the
truck was infact in defiance of the act and
consequently, the notice prescribed as condition
precedent to the institution of the suit is not a
protection which could be availed of, by the
corporation in this suit. The principle laid down in
this Judgment can be applied in the present case to
find out as to whether neglect to pay was an omission
in defiance of the terms of contract, if at all, said
to be executed, pursuant to any such power conferred
by the provisions of Act and Rules ? In my opinion,
the omission to pay the amount, would result in nonperformance
of contractual obligation, which can,
neither be termed as an act pursuant to the provisions
of the contract nor an act or omission or neglect, in
execution of the Act.
15. Shri.Patil, the learned Counsel for the
appellant relied upon the decision of the Culcutta
High Court in Jatindra Mohan Ghose’s case cited supra
and the decision of the Privy Council. In both these
decisions, the provisions of section 80 of the Code of
Civil Procedure has been considered which uses the
phraseology as `Any act purporting to be done by such
public Officer in his official capacity’ which is a
very wide connotation than the phraseology, used in
section 487 i.e. in respect of `Any act done or
purported to be done in pursuance or execution or
intended execution of this act or in respect of any
alleged neglect or default in the execution of this
Act’. The said judgments are not applicable to the
facts of the present case.
16. In view of the above, it can not be said that
the suit filed by the plaintiff was barred by
limitation or that it was not maintainable in view of
noncompliance
of section 487 of the Bombay Provincial
Municipal Corporations Act, 1949. The Judgment and
Decree passed by the Trial Court can not be therefore
faulted with. The Appeal is dismissed with cost
throughout.
(R.K. DESHPANDE)
JUDGE
No comments:
Post a Comment