Section 29 (2) of limitation is applicable or not ?
rahul
(Querist) 17 June 2015
This query is : Resolved
Respected Members,
I am sincerely sorry for such long query but I have given the cases which I have gone through & still confused & hence giving all in detail.
Section 173 of Maharashtra Housing Area Development Act 1976
(MHADA in short) – This act is a Special or Local law.
“173. Notice of suit against Authority, etc.
No person shall commence any suit against the Authority or against any member of the Authority or of any Board or of any Panchayat or any officer or servant of the Authority or Panchayat or any person acting under the orders of the Authority or Board, or Panchayat for anything done or purporting to have been done in pursuance of this Act (including any contract thereunder), without giving to the Authority, member, officer or servant or person two months previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained of.
And in the case of any such suit for damages, if tender of sufficient amends shall have been made before the action is brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender.”
Section 87 of the Bombay Port Trust Act, This act is a Special or Local law.
“87. No suit or other proceeding shall be commenced against any person for any thing done, or purporting to have been done, in pursuance of this Act, without giving to such person one month's previous notice in writing of
the intended suit or other proceeding and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding ............”
Section 110 of the Madras Port Trust Act. This Act is a special or Local law.
“110. No suit or other proceeding shall be commenced against any person for anything done, or purporting to have been done, in pursuance of this Act without giving to such person one month's previous notice in writing of the intended suit or other proceeding, and of the cause thereof nor after six months from the accrual of the cause of such suit or other proceedings.”
In the decision of Bombay High Court in the case of Arun Construction Co. v. Bombay Housing and Area Development Board, reported in 2000(2) Mh.L.J. 239, the provision of Section 173 of the MHAD Act has been considered in para 5 as under :
“[5] Now, if in the light of these rival submissions section 173 is perused, to my mind, it is clear that once section 173 lays down two requirements for valid institution of a suit against the authority viz (1) service of two months' notice on the authority and (2) institution of the suit within six months from the accrual of the cause of action. Perusal of the judgment of the Supreme
Court in the case of the Trustees of Port of Bombay referred to above shows that in that case the Supreme Court was construing the provisions of section 87 of the Bombay Port Trust Act. Section 87 of the Bombay Port
Trust Act, which is quoted in paragraph 8 of the judgment of the Supreme Court reads as under :“
87. No suit or other proceeding shall be commenced against any person for any thing done, or purporting to have been done, in pursuance of this Act, without giving to such person one month's previous notice in writing of
the intended suit or other proceeding and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding ............”
A comparison of provisions of section 87 of the Bombay Port Trust and section 173 of the Act shows that the provisions are of para materia.
Perusal of the judgment of the Supreme Court has considered the provisions of section 87 in detail and has held that section 87 deals with limitation for institution of a suit. To my mind, it is clear that section 173 does not deal with merely with the period within which notice is to
be given, but it clearly lays down the period of limitation for institution of a suit. Placing any other interpretation on the provisions of section 173 would amount to doing violence to the language in which the section is couched. It is thus clear that when the section lays down the period of six months it is referring to the commencing of the suit and not to the giving of the notice. It is clear that the said section in clear terms lays down that two months previous notice has to be given to the authority who would be a party of the intended suit and the cause thereof and the suit has to be instituted within six months of the cause of action. In the present case, it is clear that both the suits have not been instituted within a period of six months from the date on which according to the plaintiffs themselves, the cause of action arises. It has therefore to be held that both the suits have not been instituted within a period of six months as contemplated by provisions of section 173 and therefore, both the suits are barred by limitation. Issue No.7 in both the suits is therefore answered accordingly. In view of the
finding recorded on issue of limitation, the suits do not survive and the same are dismissed with costs.”
In this case of Arun Construction company, petttioner Arun Construction company had filed suit against MHADA for damages within three years from cause of action. Arun construction company did not plead that MHADA Act is a special or local law & hence by virtue of provision of section 29 (2) of limitation Act, provisions of limitation Act will apply & limitation act gives three years to file suit for damages & hence suit is in time.
Instead of this Arun Construction Company pleaded that six month time given by section 173 of mhada act is for giving notice & not for filling suit & time given by limitation act for filling suit is three years & hence suit is in time & Bombay high court dismissed suit stating that suit is time barred.
In the case of The Trustees Of The Port Of Madras vs The Dunlop Rubber Co. (India) Ltd. on 16 October, 1967, Madras High Court held that Madras Port trust Act is not complete code itself & hence by virtue of section 29 (2) of limitation act, provision of limitation act will apply to the case & court excluded the one month period of notice u/s 15 (2) of limitation Act.
Relevant portion is as follows.
The only point involved in this civil revision proceeding is the interpretation of Section 110 of the Madras Port Trust Act, 1905, in the context of the admitted facts of the case. Section 110 of the Madras Port Trust Act is in the following terms:
No suit or other proceeding shall be commenced against any person for anything done, or purporting to have been done, in pursuance of this Act without giving to such person one month's previous notice in writing of the intended suit or other proceeding, and of the cause thereof nor after
six months from the accrual of the cause of such suit or other proceedings.
2. The question of interpretation that arises is whether the two limbs or clauses of the section should be interpreted cumulatively or disjunctively. In other words, if any suit filed after six months from the accrual of the cause of such suit is explicitly barred under the second limb of the above section, would a plaintiff be barred who gave notice of his suit within the six months, but who desires to exclude the period of such notice, namely, one month, in the computation of the period of limitation? The matter may be one of some difficulty, if this section stood atone. But, actually this
section has to be read in the light of certain section of the Limitation Act of 1908 and the result of that is to place the matter beyond doubt. The plaintiff is entitled by virtue of the application of the relevant sections of the Limitation Act to the problem of the interpretation of the terms of Section 110 cited above to exclude the period of notice, namely, one month, in computing the limitation period of six months.
3. Turning to the Limitation Act Section 15 (2) states that:
In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded.
4. The vital question is, will this principle apply in the entirety of its terms to Section 110 of the Madras Port Trust Act, or must that section be interpreted as a compact and self-sufficient code of limitation, for actions instituted against a statutory body like the Port Trust? The relevant section here is Section 29 (2) of the Limitation Act, under which the provisions of Section 3 apply, so that the period of limitation prescribed by any special or local law has to be deemed to be the period of limitation prescribed by the Schedule to the Limitation Act. Further, the provisions contained in Sections 4, 9 to 18 and 22 shall apply. But the application is limited to this extent, namely, " to the extent to which, they are not expressly excluded by such special or local law."
5. In the result, therefore, since Section 110 of the Port Trust Act contains no words of express exclusion of the sections of the Limitation Act, the period of limitation in Section 110 has to be construed, as though it were the period prescribed by the Schedule to the Limitation Act, and Section 15 (2) will apply. In this view, the suit in the present case was in time and the revision petition instituted by the Port Trust will have to be rejected.
Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, this Court while construing Section 29 (2) of the Limitation Act has held that if the operation of the Limitation Act has to be barred, then a time schedule has to be given under the special law and in the absence of such, the Limitation Act would apply.
Section 29 of Limitation Act states as follows:
29.Savings--(1) (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of
determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."
Following are three conditions given in the various decision of the Supreme Court & High court & in commentary on Limitation act to apply section 29 (2) of limitation act.
Three conditions are needed to be satisfied to attract section 29 (2) of Limitation Act.
i) In connection with any suit, appeal or application, there should be a stipulation for the period of limitation under any special or local law.
ii) The said prescription (the right to something through long use) of period of limitation under such Special or Local Law should be different from the period prescribed by the Schedule to the Limitation Act.
iii) Any express provision should not be there in Special or Local Law
Contrary to the provisions in Section 4 to 24 of the Limitation Act.
If these triple conditions are answered sufficiently then Section 4 to 24 will be applicable in view of Section 29 (2) of the Limitation Act 1963
Plaintiff has file suit against MHADA for declaration that transfer of title effected by them be set aside & Sale Deed be set aside & also for damages against them.
Time limit for declaration suit is three years as per limitation act 1963. But since suit is against MHADA section 173 of MHADA act is attracted.
Section 173 act provides two condition :
i) Two months prior notice
ii) Suit within six month after the cause of action.
Notice has been served but suit has not been filed within six months from the cause of action.
Hence by applying section 173 of MHADA Act, Suit is time barred but as per the provisions of Limitation Act suit is within time because Limitation Act 1963 provide limitation period three years for declaration suit.
Therefore, In order to bring suit in time, Section 29 (2) of Limitation Act is need to be applied.
Question is
i) Whether provision of section 29 (2) of limitation act made applicable to this present suit ?
ii) Whether Suit is in time ?
dr g balakrishnan
(Expert) 18 June 2015
you have to follow the special Act terms concerned.
where nothing specifically mentioned in the Act in respect of the issue, you could use general acts.
IN MHADA follow NHADA ACT only, as the officials there would follow their Act only
general acts like CPC HAVE sec 80 for notices against govt organisations or art 12 establishments if they do not have any spl enactments on issues concerned. that is all, sir
rahul
(Querist) 18 June 2015
Thank you Dr. G. balakrishnan Sir for reading this query & giving your valuable opinion.
Sir,
My confusion is on the point that when special or local act like mhada act, port trust act which are not complete code itself, provide six month time to file suit as per their act.
But court has applied section 15 (2) of limitation act to special act by virtue of section 29 (2) of limitation act.
If section 15 (2) of limitation act can be applied to suit by virtue of section 29 (2) of limitation act then Why limitation period prescribed by limitation act is not applicable by virtue of section 29 (2) of limitation Act ?
In the case of arun construction company Bombay High court said that provisions of section 173 of mhada act & section 87 of Bombay Port trust act are para materia & hence said that suit should be filed within six month as per section 173 of mhada act.
In this case application of section 29 (2) of limitation act is not pleaded by petitioner & court also did not say anything about it in judgement.
In the case of The Trustees Of The Port Of Madras vs The Dunlop Rubber Co. (India) Ltd. on 16 October, 1967, Madras High Court held that Madras Port trust Act is not complete code itself & hence by virtue of section 29 (2) of limitation act, provision of limitation act will apply to the case & court excluded the one month period of notice u/s 15 (2) of limitation Act.
Here provisions of section 110 of Madras port trust act was applicable.
Important point is
1. provisions of section 110 of Madras port trust act & provisions of section 87 of bombay port trust act are para materia.
2. Provision of section 87 of bombay port trust act & provision of section 173 of Mhada act are para materia.
3. Hence provisions of section 110 of Madras port trust act & provision of section 173 of Mhada act are para materia.
Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, this Court while construing Section 29 (2) of the Limitation Act has held that if the operation of the Limitation Act has to be barred, then a time schedule has to be given under the special law and in the absence of such, the Limitation Act would apply.
Such time schedule is not given in MHADA Act, Bombay port trust act, Madras Port trust Act.
Hence madras High court has applied section 29 (2) of limitation act to 110 of madras port trust act & given benefit of section 15 (2) of limitation act.
Provisions of 110 of madras port trust act & provisions of section 173 of MHADA act are para materia.
Hence section 15 (2) of limitation act will be applicable to the section 173 of Mhada Act.
If section 15 (2) of limitation act can be made applicable to the section 173 of Mhada Act by virtue of section 29 (2) of limitation act, then Why remaining provisions of Limitation Act i.e. Section 3, 4 to 24 & period prescribed by Limitation act can not be made applicable to section 173 of Mhada Act ? if suit is filed against mhada.
Respected Dr. G. Balkrishnan Sir Please reply.
Thank you.
Note : I do not wish that you should accept my opinion & I sincerely respect your opinion because I do not have full legal knowledge but in the light of above decision of the court my mind is thinking like this & this confusing me. I may be wrong. Hence want to clear my doubt & wrong perception if any.
Anirudh
(Expert) 18 June 2015
Dear Mr. Rahul,
You say that "I do not have full legal knowledge but in the light of above decision of the court my mind is thinking like this & this confusing me. I may be wrong. Hence want to clear my doubt & wrong perception if any."
When you do not have full legal knowledge, you should simply state your fact situation and seek the views of the Experts here, instead of unnecessarily spreading your confusion here.
At least now, tell your fact situation and then ask your query. Leave the legal part to the Experts.
Guest
(Expert) 18 June 2015
The real problem with specific reference to the facts and background case history has the relevance for removing your doubt, if any, but you have missed to mention in such a long description.
