Code of Civil Procedure, 1908:
Order 47 r. 1 – Review petition – Error apparent on record – On facts, review petition on the ground that there is an apparent error in the judgment by this Court holding that suit was barred by time – Petitioner’s case that in money suit pertaining to interest on principal amount received by the petitioner, the last supply was completed on 04.10.93 but the last payment was made on 05.03.1994, a fresh period of limitation would begin from 05.03.1994 on the basis of s. 19 of the Limitation Act – Held: Exemption provided u/ss. 4 to 20 of the Limitation Act, are based on certain facts and events – On facts, perusal of the plaint indicates that there is no pleading as to exception of limitation by running any fresh period of limitation as per s. 19 – There was no occasion for defendants to raise any reply in reference to s. 19 – Also, proviso to Order 7 r. 6 cannot come to the rescue of the plaintiff since the plaintiffs specifically pleaded that the provisions of the Limitation Act are not applicable since Act, 1993 has overriding effect – Furthermore, in the paragraph of cause of action for the suit, the cause of action is not claimed from the date 05.03.1994, which was the date when the last payment was received by the petitioner – Petitioner in the plaint has clearly not pleaded for benefit of s. 19 nor has brought necessary facts to enable the Court to consider the claim under s. 19 – Thus, the petitioner is not entitled for benefit of s. 19 and there is no error in the judgment of this Court holding that the suit of the plaintiff was barred by time – Furthermore, benefit of s. 14 of Limitation Act cannot be claimed by the plaintiff since writ petition, which was filed by the Association was by different entity – Issue of benefit of s. 14 was specifically considered and rejected by this Court in its judgment thus, there is no error apparent on the said ground – Limitation Act, 1963 – ss. 19, 14 – Interest on Delayed Payment to Small Scale and Ancillary Industrial Undertakings Act, 1993.
Order 47 r. 1 – Review petitions – Error apparent on record – On facts, matter pertaining to interest on delayed payment to small scale industries – Review petition on the ground that there was error on face of record in observation of this Court – Some of the supplies made prior to commencement of the 1993 Act– 23.09.1992 and some of the supplies made after 23.09.1992 – Entitlement of petitioner to the benefit of interest under the 1993 Act – Held: The date of bill for the payment for supply of the materials by the plaintiffs was 29.09.1992 – This Court in the judgment rightly held that there was nothing on record to come to the conclusion that any supply was made after the enforcement of the Act so as to enable the appellant to claim interest u/s. 3 read with s. 4 of the 1993 Act, thus, the judgment of the High Court does not call for interference – Submission that there is error apparent on the face of record is rejected and the review petition is dismissed – Interest on Delayed Payment to Small Scale and Ancillary Industrial Undertakings Act, 1993.
Order 47 r. 1 – Review petition – Error apparent on record – Review petition on the ground that this Court dismissed the appeal as not maintainable which is error apparent on record – Held: This Court considered the maintainability of appeal and found against the petitioner, thus, there is no ground to review the petition.
Order 47 r. 1 – Review petition – Scope of – Held: Scope of review is limited – Under the guise of review, petitioner cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided.
Order 7 r. 6 – Grounds of exemption from limitation law – Applicability of – Held: When suit is instituted after expiration of period prescribed by law of limitation, the plaint should show the ground upon which exemption from such law is claimed – However, the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. Limitation Act, 1963: s. 19 – Benefit of – Held: Section 19 provide for a fresh period of limitation – Benefit under s. 19 is available when payment on account of debt or of interest on legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy and an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
Dismissing the review petitions, the Court
HELD:
Review Petition (C) Nos. 786–787 of 2019
1.1 Section 3 of the Limitation Act, 1963 makes it clear that in event, a suit is instituted after the prescribed period, it shall be dismissed although limitation has not been set up as a defence. The Court by mandate of law, is obliged to dismiss the suit, which is filed beyond limitation even though no pleading or arguments are raised to that effect. The provisions of Sections
4 to 20 are exceptions when suit beyond the period of limitation as prescribed in the Schedule shall not be dismissed as required by Section 3. Order VII Rule 6 C.P.C. uses the words “the plaint shall show the ground upon which exemption from such law is claimed”. The exemption provided under Sections 4 to 20 of the Limitation Act, 1963 are based on certain facts and events. Section 19 provide for a fresh period of limitation, which is founded on certain facts, i.e., whether payment on account of debt or of interest on legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, whether an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment. [Para 11 and 12] [263-C-D; G-H]
1.2 A perusal of the plaint indicates that there is no pleading as to exception of limitation by running any fresh period of limitation as per Section 19. The details of delivery challans have been given, last challan being dated 04.10.1993 has been mentioned by which supply was made. The details of payments received have also been mentioned, in which last being made on 05.03.1994 has been mentioned, but for the last payment made on 05.03.1994, there was no pleading of an acknowledgment on the part of the respondents, which could result in start of fresh period of limitation. Further, it has been further specifically pleaded that provisions of Limitation Act do not apply in view of the provisions contained in the Act, 1993 as because the Act, 1993 is having overriding effect over the Limitation Act and all other Acts. There being no specific pleading by the plaintiffs claiming any start of fresh period of limitation, there was no occasion for defendants to raise any reply in reference to Section 19. [Para 13, 14] [265-C-E; 266A]
1.3 The proviso of Order VII Rule 6 added by Act 104 of 1976, provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. The proviso of Order VII Rule 6 cannot come to the rescue of the plaintiff, the plaintiffs have specifically pleaded in paragraph 21 that the provisions of the Limitation Act are not applicable since Act, 1993 has overriding effect. The trial court in decreeing the suit of the plaintiff has accepted the submission and has held that Limitation Act, 1963 is not applicable. [Para 18] [269-G-H]
1.4 Paragraph 24 of the plaint, which is a paragraph of cause of action for the suit, which refers to date beginning from 31.03.1992 till 05.10.1993, i.e., the beginning from the first supply order i.e., 31.03.1992 and date of last supply order, i.e., 05.10.1993, but cause of action is not claimed from the date 05.03.1994, which was the date when the last payment was received by the petitioner. The petitioner in the plaint has clearly not pleaded for benefit of Section 19 nor has brought necessary facts to enable the Court to consider the claim under Section
19. Thus, the petitioner is not entitled for benefit of Section 19 of the Limitation Act and there is no error in the judgment of this Court dated 23.01.2019 holding that the suit of the plaintiff was barred by time. [Para 19] [270-A-C]
1.5 That benefit of Section 14 of Limitation Act cannot be claimed by the plaintiff since writ petition, which was filed by the Association was by different entity. The question of benefit of Section 14 having been specifically considered and rejected by this Court in its judgment dated 23.01.2019, there is no error apparent on the said ground. Moreover, instant is a case where writ petition filed by Association was dismissed on 28.08.1997 subsequent to filing of the suit by plaintiff on 10.01.1997. Furthermore, after the judgment of the Single Judge on 28.08.1997 Association filed a writ appeal challenging the said judgment, which facts also detracts from fulfilling the conditions as required for extending the benefit of Section 14 of the Limitation Act. [Para 20] [270-D-E]
1.6 Insofar as other submissions that Act, 1993 is retroactive in nature and further amount due at the time of the commencement of the Act ought to attract interest of the Act, 1993, all these submissions have been elaborately considered in the judgment dated 23.01.2019, which have been considered on merits. The scope of review is limited and under the guise of review, petitioner cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided. Thus, there is no merit in review petition (c) Nos. 786–
787 of 2019. [Para 21, 22] [270-F-G; 271-C]
Review Petition (C) No.789 of 2019
2. A perusal of the chart given in the judgment indicates that the date 29.09.1992 is a date of bill for the payment for supply of the materials by the plaintiffs. In the judgment dated 23.01.2019, it was observed that “there being nothing on record to come to the conclusion that any supply was made after the enforcement of the Act so as to enable the appellant to claim interest under Section 3 read with Section 4 of the Act, 1993, the judgment of the High Court does not need any interference in this appeal”. Thus, there is no merit in the submission of the counsel for the appellant that there is error apparent on the face of record in observation of the Court made in paragraph 85 of the judgment, the said submission is rejected. [Para 24, 25] [272D-E] Review Petition (C) No.788 of 2019
3.1 A perusal of the judgment dated 19.03.2013 indicates that the grounds on which the petitioner prayed liberty to file review was not proved in the review petition. The High Court in the review judgment did not hold in favour of the petitioner that he was entitled for the benefit of Act, 1993 rather the High Court accepted the submission of the petitioner that plaintiffs are not debarred from claiming cost under Section 34 CPC, Section 61 of the Sale of Goods Act, 1930 or Section 3 of the Interest Act, 1978 or in equity only on the ground of principal amount. The High Court granted interest at the rate of 9% per annum. The Civil Appeal No. 8445 of 2016 has been filed against the review judgment but obviously the appeal is not against the 9% interest granted to the petitioner. Review judgment does not grant interest under Act, 1993 since the High Court in the review judgment did not interfere with the earlier finding that petitioner is not entitled for benefit under Act, 1993. The review on the ground on which liberty was sought was in essence not accepted by the High Court in its review judgment. Moreover, in judgment dated 23.01.2019, the maintainability of appeal having been considered and found against the petitioner, there is no ground to review the petition. [Para 28] [273-E-H; 274-A] Sant Lal Mahton v. Kamla Prasad and Others, AIR 1951 SC 477 : [1952] SCR 116 ; Jiwanlal Achariya v. Rameshwarlal Agarwalla, AIR 1967 SC 1118 ; Kamla Devi and Others v. Pt. Mani Lal Tewari and Others, (1976) 4 SCC 818 ; Parsion Devi and Others v. Sumitri Devi and Others, (1997) 8 SCC 715 : [1997] Suppl. SCR 470 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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