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COMPUTATION OF PERIOD OF LIMITATION[1]
QUESTION BANK
- Discuss the provisions relating to ‘computation of period of limitation’ under the Limitation Act., 1963.
- Explain the effect of continuing breach of contract and continuing tort on the computation of period of limitation.
- Explain “exclusion of time or proceeding ‘bonafide’ in court without jurisdiction as provided under the Limitation Act.
- What is acknowledgment? State the essentials of valid acknowledgment under the Indian Limitation Act?
- Explain the provision relating to extension and suspension of limitation.
SHORT NOTES
- Effect of fraud or mistake.
- Exclusion of time spent in legal proceedings.
- Acknowledgment.
SYNOPSIS
1) Exclusion of time in legal proceedings (S. 12)-
2) Exclusion of time in cases where leave to sue or appeal as a pauper is applied for (S. 13)-
3) Exclusion of time of proceeding bona fide in court without jurisdiction (S. 14)-
4) Exclusion of time in certain other cases (S. 151)-
5) Effect of death on or before the accrual of the right to sue (S. 16)-
6) Effect of fraud or mistake (S. 17)-
7) Effect of acknowledgement in writing (S. 18, 19 and 20)-
8) Effect of substituting or adding a new plaintiff or defendant (S. 21)-
9) Continuing breaches and torts (S. 22)-
10) Suits for compensation for acts not actionable without special damage (S. 23)-
Note-
1) Exclusion of time of proceeding bona fide in court without jurisdiction (S. 14)-
Explanation clause (a)-
Explanation clause (b)-
Explanation clause (c)-
(2) Effect of fraud or mistake (S. 17)-
Exception-
3) Acknowledgment-
(1) Effect of acknowledgment (S. 18)-
Explanation (a) to S. 18-
Explanation (b) to S. 18-
(2) Effect of payment on account of debt etc (S. 19)-
3) Effect of acknowledgment or payment by another person (S. 20)-
Explanation S. 20 (3) (a)-
4) Continuing breach and torts (S. 22)-
Continuing breach of a contract-
Continuing tort-
Ss. 12 to 18 of the Limitation Act deal with the computation of the period of limitation. In other words, it points out how the period or time shown in the IInd column of the Schedule is to be computed.
These sections point out what days or periods have to be excluded or extended from the calculation of the limitation period. There is no necessity for any prayer or application by the party for the exclusion of the period provided by these sections. It is the duty of the court to exclude such time.
For the purpose of the computing period of limitation under the Limitation Act, the Gregorian Calendar (i.e. British Calendar) is to be used (S. 24).
The rules relating to the computation of the period of limitation are as follows-
1) Exclusion of time in legal proceedings[2] (S. 12)-
- 12 has laid down the following rules relating to exclaiming some days from the computing period of limitation-
(i) In the computing period of limitation prescribed for a suit, appeal or application, the day on which time begins to run shall be excluded.
(ii) In computing the period of limitation prescribed for an appeal, the following period shall be excluded-
(a) the day on which the period begins to run;
(b) the day on which the judgment was pronounced.
(c) the time requisite for obtaining a copy of the decree, sentence or order.
(d) the time requisite for obtaining a copy of the judgment.
(iii) In computing the period of the limitation prescribed for an application for revision or review or leave to appeal, 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;
(c) the time requisite for obtaining a copy of the decree;
(d) the time requisite for obtaining a copy of the judgment.
(iv) In computing the period of limitation for an application to set aside an award-
-the time requisite for obtaining a copy of the award shall be excluded.
However, the time between the date on which the copy is ready and the date on which it is actually taken delivery by the party cannot be excluded.
2) Exclusion of time in cases where leave to sue or appeal as a pauper is applied for[3] (S. 13)-
Where an application for leave to appeal or leave to sue as a pauper is rejected and the party is filing an appeal or suit with payment of court fees, the time during such application is prosecuted in good faith shall be excluded.
3) Exclusion of time of proceeding bona fide in court without jurisdiction (S. 14)-
(Discussed at length in the Notes at the end of this topic).
4) Exclusion of time in certain other cases (S. 15)-
- 15, laws down following rules- viz.
(i) In computing the period of limitation where the institution of a suit (or the execution of a decree) has been stayed by an injunction or order, the period during which injunction or order was in force is to be excluded[4].
(ii) In cases where the law requires that a notice should be given or consent or sanction of the Government or any other authority should be obtained before a suit is to be instituted, the period of such notice or period required for obtaining such consent or sanction shall be excluded in computing the period of limitation for filing suit.
(iii) In respect of suits on behalf of an insolvent or a company in liquidation, (a) the period between the date of the filing of the petition for adjudication or winding up and the appointment of the receiver or interim receiver etc., (b) a period of three months thereafter- shall be excluded in computing the period of limitation for suits by or on behalf of an insolvent’s estate or the company.
(iv) In computing the period of limitation for the suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale (against the purchaser by the party) has been prosecuted shall be excluded.
In other words, in a case, if a purchaser at a sale in execution of a decree has to file a suit to recover possession of the property purchased by him, the time during which the application to set aside the sale (filed by the party against such purchaser) was being fought out will be excluded from the computation.
(v) In computing the period of limitation for any suit, the time during which the defendant has been absent from India and from territories outside India under the administration of the Central Government shall be excluded.
5) Effect of death on or before the accrual of the right to sue[5] (S. 16)-
(i) where a person who would, if he were living, have a right to institute a suit or an application
– dies before the right accrues, or
– were right to institute a suit or make an application accrue only on the death of the person-
– the period of limitation shall be computed from when there is a legal representative of the deceased capable of instituting such suit or making such application. Similarly-
(ii) where a person against whom, if he were living,-
(a) a right to institute a suit or make an application would have accrued,
(b) dies before the right accrues, or
(b) where a right to institute a suit or make an application against any person accrues on the death of such a person-
– The limitation period shall be computed from when there is a legal representative of the deceased against whom the plaintiff may institute such suit or make such application.
This section enacts the general principle that unless there is a complete cause of action, the limitation cannot run and that unless there is a person who can sue and a person who can be sued, there cannot be a complete cause of action. Thus, unless there is a person who can sue or who can be sued, the limitation does not run.
However, the above rules do not apply to suits to enforce rights of pre-emption or to suits for the possession of immovable property or hereditary offices.
6) Effect of fraud or mistake (S. 17)-
(Discussed at length in the note at the end of this topic).
7) Effect of acknowledgment in writing (S. 18, 19 and 20)-
(Discussed at length in the note at the end of this topic).
8) Effect of substituting or adding a new plaintiff or defendant (S. 21)-
Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.
Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith, it may direct that the suit for regard to such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
In other words, a suit in which a party is subsequently joined shall be deemed to be instituted as regards him (new party) on the date of his joinder. The date is taken into consideration for computing the period of limitation. The suit may be barred with respect to the newly added party if he is added as a part after the limitation period is over.
9) Continuing breaches and torts (S. 22)-
(Discussed at length in the note at the end of this topic).
10) Suits for compensation for acts not actionable without special damage[6] (S. 23)-
In the case of a suit for compensation for an act that does not give rise to a cause of action unless some specific injury actually results there from the period of limitation shall be computed from the time when the injury results.
Note-
1) Exclusion of time of proceeding bona fide in court without jurisdiction[7] (S. 14)-
Subsections (1) and (2) of S. 14 lays down that, in computing the period of limitation for any suit or application, the time during which the plaintiff (application) has been prosecuting with due diligence another civil proceeding, whether in a court of the 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 for a defect of jurisdiction or other cause of like nature, is unable to entertain it.
In Basdeo Khemka v. Union of India[8]
The court held- that the litigant is entitled as a matter of right to exclude the period spent in infructuous proceeding provided the essential elements of S. 14 are satisfied by the plaintiff.
Thus, the person seeking exclusion under this section must prove-
(a) that he had prosecuted the former proceeding in good faith and with due diligence.
(b) that the former proceeding was between the same parties;
(c) that the matter in issue was the same;
(d) that the former court was unable to entertain such suit or application for defect of jurisdiction or other cause of a like nature.
The exception also applies to execution applications (Sub-S. 2 of S. 14).
For example, when a primary teacher is dismissed by a Government private school, an appeal is filed in the School Tribunal (which has jurisdiction to try appeals against private schools only). On the issue of jurisdiction, the appeal is dismissed.
The teacher filed a civil suit against the Government, but the limitation period was three years from the order of dismissal. The suit was filed after four years and fifteen days (one year was spent in appeal before the School Tribunal). The period spent in perusing appeals before the School Tribunal (i.e., one year) is to be excluded.
Explanation clause (a)-
According to the explanation clause (a), in excluding time under S. 14, the day on which the former suit or application was instituted or made and the day on which the proceeding therein ended shall be excluded.
Explanation clause (b)-
According to this clause, a plaintiff or an applicant resisting an appeal (as the respondent) shall be deemed to be prosecuting a proceeding.
Explanation clause (c)-
According to this clause, a misjoinder of parties or cause of action is deemed to be a cause of like nature with a defect of jurisdiction.
In other words, when computing the period of limitation for any suit or application, the time taken to prosecute it in a wrong court shall be enacted if it was presented in that court in good faith.
According to S. 2 (h) of the Limitation Act, ‘good faith is defined as “nothing shall be deemed to be done in good faith which is not done without care and attention”. In other words, the act is said to be done in ‘good faith’ if it is done with care and attention.
***
(2) Effect of fraud or mistake (S. 17)-
Where a person having a right to institute a suit or make an application has, by means of fraud, been kept away from the knowledge-
(i) of such right, or
(ii) of the title on which the right is founded,
-The limitation period shall be computed from the time when the fraud becomes known to the person defrauded.
Similarly, (i) where any document necessary to establish such right has been fraudulently concealed from him, or (ii) where the suit or application is for the relief from the consequence of the mistake-
- the limitation period shall be computed from the time when he first had the means of producing the concealed document or compelling its production and not from the date of the discovery of the document.
Thus, in order to get an exemption, the plaintiff must prove-
(a) that his cause of action has been concealed from him by fraud;
(b) that the fraud is of the defendant or of a person through whom he claims;
(c) that the plant is in the time since the discovery of the fraud.
Exception-
Proviso to S. 17 provides 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-
(i) in the case of fraud, or
(ii) in the case of a mistake, or
(iii) in the case of a concealed document-
-has been purchased for (a) valuable consideration, (b) by a person who did not know or have knowledge of the above defect.
Thus, the innocent purchaser of the property for value, without knowledge of the defect (mentioned above), is protected.
According to sub-section 2 of S. 17, where the execution of a decree or order within the period of limitation has been prevented by fraud or force of the judgment-debtor, the court may, on the application of the judgment-creditor made after the expiry of the period of limitation extend the period for the execution of the decree or order. However, such an application must be made within one year of the discovery of fraud.
***
3) Acknowledgment[9]–
(1) Effect of acknowledgement (S. 18)-
Where-
(i) before the expiration of the prescribed period for suit or application,
(ii) an acknowledgement is made-
(a) in writing,
(b) in respect of any property or right,
(c) signed by the party against whom such property or right is claimed (or by any person through whom he derives his title or liability)
(iv) a fresh period of limitation shall be computed from the time when the acknowledgement was so signed (S. 18).
In other words, every acknowledgement affords new proof of the existence of the debt. According to the section, the bar of limitation does not operate in the case in which the existence of the claim is acknowledged by persons who are under liability.
Thus, the acknowledgement should have been made before the claim became time-barred (i.e. before the prescribed limitation period expires).
According to sub-section (2) of S. 18, if the document containing the acknowledgement is undated, oral evidence may be admissible to prove the date of writing. However, to prove the contents of such acknowledgement, oral evidence is not admissible (if the document is not on record)
An application for execution of a decree or order shall not be deemed to be an application in respect of any property or right (Explanation (c) to S. 18).
The day on which the acknowledgement is made will have to be excluded in computing the period of limitation.
Explanation (a) to S. 18-
According to the explanation-
An acknowledgement may be sufficient-
(i) though it omits to specify the exact nature of the property or right, or
(ii) averse that the time for payment, delivery, performance or enjoyment has not yet come, or
(iii) is accompanied by the refusal to pay, deliver, perform or permit to enjoy, or
(iv) is coupled with a claim or set-off, or
(v) is addressed to a person other than a person entitled to the property or right.
In other words, in the above circumstances, the court will presume that the debt stands acknowledged and a fresh period begin to run from that point.
In Saranghar Singh v. Lakshminarayan[10]
Court Held- that an acknowledgment of liability need not be expressed; it may be a necessary implication.
Explanation (b) to S. 18-
It explains the term ‘signed’, which means ‘signed either personally or by an agent duly authorized on this behalf.
In other words, the person himself or through his agent may acknowledge. Acknowledgment through the agent is also proper acknowledgment.
(2) Effect of payment on account of debt[11] etc. (S. 19)-
- 19 is another attribute of S. 18.
It lays down that, where-
(i) payment on account of a debt or of interest on a legacy,
(ii) is made before the expiration of the prescribed period,
(iii) by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf,
(iv) a fresh period of limitation shall be computed from the time on which the payment was made,
Explanation (a) lays down the, where the mortgaged land is in possession of the mortgagee, the receipt of the (i) rent or (ii) produce of such land shall be deemed to be a payment.
Explanation (b) explains that the term ‘debt’ in S. 19 does not include money payable under a decree or order of a court.
Thus, there are two requirements of S. 19, the payment of debt or interest within the prescribed period and, second, acknowledgement thereto.
For example, A took a loan of Rs. 10,000/- from B on 1/07/2007. He paid interest on 01/10/2010 (i.e. after 2 years and 10 months). Here, it is to be noted that the period of limitation to the suit to recover the amount is 3 years. B can file suit to recover the remaining interest and principal amount within the next 3 years from 01/10/2010 (or from the date of payment in between is made).
3) Effect of acknowledgment or payment by another person[12] (S. 20)-
- 20 is explanatory of the term ‘agent duly authorised on this behalf’ mentioned in Ss. 18 and 19. It clears that the ‘agent duly authorised on this behalf’ shall-
(i) in the case of a person under disability- including his (a) lawful guardian, (b) committee or manager or (c) an agent duly authorised by such guardian to sign, acknowledge or make the payment.
However, one of several joint contractors, partners, exactors, or mortgagees will not render the other joint contractors, partners, executors, or mortgagees liable under an acknowledgement or payment (Sub- sec (2) of S. 20).
Explanation S. 20 (3) (a)-
An acknowledgement signed or a payment made, in respect of any liability by, or by the duly authorised agent of any limited owner (widow, etc.), and governed by the Hindu Law shall be a valid acknowledgement or payment against a reversioner.
Similarly, where the liability has been incurred by, or on behalf of a Hindu undivided family s such, an acknowledgement or payment made by or by the duly authorised agent of the manager of the family, for the time being, shall be deemed to have been made on behalf of the whole family.
***
4) Continuing breaches and torts[13] (S. 22)-
In the case of a (i) Continuing breach of contract, or
(ii) Continuing tort,
- a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, continues.
In other words, the section deals with computing the period of limitation in cases of continuous breach of contract or violation of right, i.e., tort.
The section’s object is to prevent a multiplicity of suits and to enable one action to be brought for all loss suffered during the whole period the breach continued.
Continuing breach of a contract-
Where the terms of a contract create rights and duties, a breach of such duty is a wrong called a ‘breach of contract’.
For example, A breach of contract for quiet possession of any property is a continuing breach, and a suit on such breach would not be barred so long the breach continues. Similarly, a breach of covenant by the tenant to repair the premises of his landlord is a continuing breach so long as the premises are not repaired.
Continuing tort[14]–
Where the rights and duties are created otherwise than a contract, the breach of such a duty is a wrong independent of the contract, which is called a ‘tort’.
In Munciple Board v. Sukhdev Prasad[15]
Facts– Some shops were constructed in the front portion of B’s house, thereby obstructing A’s right of frontage and passage. B filed suit after approximately 20 years for the removal of the contraction.
Held– The injury is a continuing wrong to B’s right; hence, the suit is not barred by the period of limitation.
*****
[1] मुदतीची गणना/मोजणी [अवधि की गणना/गणना]
[2] कायदेशीर प्रक्रियेत गेलेला वेळ वगळणे, [कानूनी कार्यवाही में लगने वाले समय को छोड़कर,]
[3] निर्धन व्यक्ती म्हणून दावा किंवा अपिलास परवानगी मागण्यासाठी अर्ज केला असल्यास तो काळ वगळावा, [यदि एक निर्धन व्यक्ति के रूप में दावा करने या अपील करने की अनुमति के लिए आवेदन किया जाता है, तो अवधि को हटा दिया जाएगा,]
[4] दावा दाखल करण्यास स्थगिती दिली असल्यास सदर स्थगितीचा कालावधी दावा दाखल मुदतीतून वजा करावा, [यदि दावा दाखिल करना स्थगित कर दिया जाता है, तो स्थगन की अवधि को दावा दायर करने की समय सीमा से घटा दिया जाता है,]
[5] दावा दाखल करण्याचा हक्क प्राप्त होण्यापूर्वी किंवा झाल्यावर मृत्यू झाल्यास त्याचा परिणाम [मुकदमा दायर करने के अधिकार के निहित होने से पहले या बाद में मृत्यु का प्रभाव,]
[6] नुकसान झाल्याषिवाय कारवाई न होणाऱ्या कृतीबद्दल भरपाईसाठी दावे,
[7] अधिकार नसलेल्या न्यायालयातील कार्यवाहीचा काळ वगळणे, [क्षेत्राधिकार के बिना अदालतों में कार्यवाही के लिए समय का समायोजन,]
[8] AIR 1978 Cal. 100.
[9] पावती/अभिस्वीकृती, [रसीद / पावती,]
[10] AIR 1956 Pat 320.
[11] कर्ज खात्यावर रकमेचा भरणा केल्याचा परिणाम [ऋण खाते पर राशि के भुगतान का प्रभाव]]
[12] अन्य व्यक्तीने भरलेल्या रकमेचा किंवा अभिस्वीकृतीचा परिणाम, [किसी अन्य व्यक्ति द्वारा भुगतान या स्वीकृति का प्रभाव,]
[13] सततचे उल्लंघन, सततचे कराराचे उल्लंघन, [ लगातार उल्लंघन, अनुबंध का लगातार उल्लंघन,]
[14] सततचे अपकृत्य, [लगातार दुराचार,]
[15] 1980