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Monday 13 September 2021

How to ascertain limitation in the suit for recovery of money for goods supplied to the Municipal Corporation?


 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


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