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2001(3) Supreme 66
SUPREME COURT OF INDIA
(From Bombay High Court)
B.N. Kirpal, U.C. Banerjee and Brijesh Kumar, JJ.
Syndicate Bank -Appellant
versus
Mr. Prabha D. Naik & Anr. etc. -Respondents
Civil Appeal No. 4944 of 1989
With
Civil Appeal No. 4945 of 1989
Decided on 26-3-2001
Counsel for the Parties :
For the Appellant : O.P. Sharma, Sr. Advocate, Abhishek Atrey, K.R. Gupta, R.C. Gubrele, Advocates.
For the Respondents : Dhruv Mehta, Ms. Shobha and S.K. Mehta, Advocates.
Held : The obvious question thus appears as to whether the Limitation Act of this country would be made applicable to the State of Goa, being a part of this country or the Portuguese Civil Code in the facts of this case not governing the right, would have its application in the enforceability of such a right - We are left with no option but to record our opinion to the fact that by reason of the existence of right under Indian Law (to wit: Contract Act and Negotiable Instrument Act) the extinction of remedy under the Portuguese Law cannot but be deemed to be impliedly repealed. The doctrine of implied repeal has to take its place in the facts of the matter under consideration. Having regard to the factum of Article 535 being a mere procedural aspect and not being a substantive right, as such we are not contemplating the situation under Private International Law, but the distinction between substantive and procedural law has a meaningful existence herein. The doctrine of implied repeal, we are conscious of the fact, is not to be favoured but where a particular provision could not have been intended to subsist and if let subsisting, the resultant effect would be an absurdity. Courts cannot but declare it to be so on the ground of repeal by implication. Let us at this juncture try to appreciate the total effect, in the event we allow Article 535 to remain subsisting. The right to sue on a contract arising in any part of the country excepting the State of Goa stands extinguished after the expiry of the period of limitation as prescribed by under the Limitation Act. The Appellant Bank has its branches throughout the country, in a situation identical, appellant Bank will be entitled for the enforcement of its claim even the period of limitation is prescribed under the Limitation Act but if a similar suit appears in another part of the country, appellant Bank will have its liberty to institute a claim for enforcement and the remedy continues for a much longer period of time (as in this case 30 years). Is it a conceivable situation that a debtor in this country without there being any implication of Private International Law can bona fide and validly extinguish a claim of the creditor within a specific period but a debtor situated in another part of the country having a uniformity of laws by reason of such local law said to be existing, cannot claim such extinguishment or bar of remedy until the expiry of a much longer period of time? - the situation is rather anomalous and cannot be conceived. Having regard to Section 1(2) of the Limitation Act which came into force much after the territories of Goa, Daman and Diu were incorporated as a Union Territory by the Constitution, (Twelfth) Amendment Act however, should not detain us long. (Para 18)
Incidentally, the legislature is supposed to be aware of the need of the society and the existing state of law: there is no reason whatsoever to consider that the legislature was unaware of the existing situation as regards the Portuguese Civil laws with a different provision for limitation. Needless to record the special reference has been made to the State of Jammu & Kashmir but after incorporation of the State of Goa, Daman and Diu within the Indian Territory, if there was any intent of having the local law being made prevalent there pertaining to the question of limitation only, there would have been an express exclusion and in the absence of which no contra intention can be deduced, neither any contra inference can be drawn. In any event, as noticed above, Portuguese Civil Code, in our view, could not be read to be providing a distinct and separate period of limitation for a cause of action arising under the Indian Contract Act or under the Negotiable Instrument Act since the Civil Code ought to be read as one instrument and cause of action arisen therefrom ought only to be governed thereunder and not otherwise. The entire Civil Code ought to be treated as a local law or special law including the provisions pertaining to the question of limitation for enforcement of the right arising under that particular Civil Code and not de hors the same and in this respect the observations of the High Court in Cadar Construction (AIR 1984 Bom. 258) that the Portuguese Civil Code could not provide for, a period of limitation for a cause of action which arose outside the provisions of that Code, stands approved. A contra approach to the issue will not only yield to an absurdity but render the law of the land wholly inappropriate. There would also be repugnancy in so far as application to the Limitation Act in various States of the Country is concerned: whereas in Goa, Daman and Diu, the period of limitation will be for a much larger period than the State of Maharashtra - the situation even conceptually cannot be sustained having due regard to the rule of law and the jurisprudential aspect of the Limitation Act. (Para 19)
Admittedly, Limitation Act is a statute enacting the provisions in general terms applicable to the entire country excepting the exception as mentioned in the statute itself. It is a latter statute of the year 1963 only that the Portuguese Civil Code assuming had its application in the State of Goa, Daman and Diu and an earlier statute thus stand altered, as the latter is expressed in affirmative language, more so by reason of specific application of Negotiable Instrument Act and Indian Contract Act: It thus cannot but be said to be repealing by implication - "affirmative statute introductive of a new law do imply a negative" (Harcourt v. Fox (1693) 1 show 506). (Para 21)
Consequently held : As regards the doctrine of implied repeal, another aspect of the matter ought to be noticed vis-a-vis the Civil Code. The issue of limitation being a mixed issue of law and fact under the Limitation Act, the Court in spite of plea not being raised by the defence, can go into the same suo moto but there is a specific bar under Article 515 of the Civil Code which records that the Court cannot suo moto take cognizance of description unless it is specifically pleaded by the parties. It is a bar of jurisdiction of Court. The repugnancy and incongruity arise by reason of the fact that the Parliament by law viz. The High Court at Bombay: (extension of jurisdiction to Goa, Daman and Diu) Act 1981 extended the jurisdiction of the High Court of Judicature at Bombay to the Union Territory of Gao, Daman and Diu from the appointed day and the Court of Judicial Commissioner was abolished. Section 9 of the statute [(Act of 1981) (supra)] provides that there shall be, on and from appointed day, established a permanent Bench of the High Court at Bombay at Panaji and some Judges of the High Court at Bombay being not less than two in number or as may be nominated by the Chief Justice of the High Court from time to time shall sit at Panaji, in order to exercise the jurisdiction and power for the time being vested in the High Court in respect of cases arising in this Union Territory. The authority and jurisdiction of the High Court of Bombay, to take cognizance of an action being barred by limitation, thus stands negated-conceptually even a difficult situation to conceive that same High Court will have two different spheres of jurisdiction while dealing with matters. At the cost of repitition we say that while implied repeal is not to be readily inferred but in the contextual facts, upon scrutiny, we cannot but hold that on the wake of the factum of the Limitation Act coming into existence from 1.1.1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly repealed and it is on this score that the decision of this Court in Justiniano s case (AIR 1979 SC 984) stand overruled. There is one general law of limitation for the entire country being the Act of 1963, and the Portuguese Civil law cannot be termed to be a local law or a special law applicable to the State of Goa, Daman and Diu prescribing a different period of limitation within the meaning of Section 29(2) of the Limitation Act and in any event, question of saving of local law under the Limitation Act of 1963 does not and cannot arise. The submission that without there being a specific mention of repealing statute (since 1963 Act of Limitation does not record express repeal of any other law excepting the Limitation Act of 1908), question of Portuguese Civil Code being repealed does not arise, cannot hold good by reason of the doctrine of implied repeal as noticed above. In the premises aforesaid, these appeals fail and are dismissed without however any order as to costs. (Para 22)
Key Points: - The Supreme Court held that there is one general law of limitation for the entire country (Limitation Act, 1963) and that Portuguese Civil Code provisions on limitation are not to be treated as local law saving different periods; they are repealed by implication for rights arising under Indian law (!) (!) (!) . - The Court concluded that the extinction of remedy under Portuguese law cannot stand where rights arise under Indian law (Contract Act and Negotiable Instrument Act), due to implied repeal of Article 535 and related Portuguese limitation provisions (!) (!) (!) . - The decision discusses that the Portuguese Civil Code cannot provide a separate limitation period for actions arising under Indian statutes once Indian law is adapted and applied to Goa, Daman and Diu; adaptation of Indian Contract Act and Negotiable Instrument Act leads to implied repeal of corresponding Portuguese limitations (!) (!) (!) . - The High Court and Supreme Court analyses address the extension of Bombay High Court jurisdiction to Goa, Daman and Diu and its impact on limitation matters, including the extension acts and Article 515 bar of the Civil Code (!) (!) (!) . - Regulation and adaptation measures (Regulation 11/12 of 1963; Goa, Daman and Diu Laws) show Negotiable Instrument Act and Contract Act applied in the Union Territory, supporting the view that Limitation Act governs suits against rights arising outside the Portuguese Code (!) (!) . - The judgment overrules Justiniano’s case in light of the Limitation Act of 1963 and the 1981 extension of Bombay High Court jurisdiction to Goa, Daman and Diu (!) (!) . - The appeals are dismissed with no costs, affirming the above conclusions about limitation in Goa, Daman and Diu (!) .
JUDGMENT
Banerjee, J.-The applicability of the provisions of Indian Limitation Act vis-a-vis the interpretation of Article 535 of the Portuguese Civil Code, said to be the governing law of Limitation in the State of Goa, Daman & Diu, is the focal point for consideration in this appeal. Needless to record that Section 29(2) of the Limitation Act, 1963 contains the provisions for savings of the Limitation Act which expressly provides that the provisions contained in Sections 4 to 24 (both inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by special or local law. In interpreting the said provision under Section 29(2) and the Portuguese Civil Code pertaining to the question of limitation as being a local law within the meaning of Section 29(2), this Court in the case of Justiniano Augusto De Piedade Barreto v. Antonio Vicente Da Fonseca and Others1 came to a conclusion that the body of the provisions in the Portuguese Civil Code dealing with the subject of limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only, is the local law within the meaning of Section 29(2) of the Limitation Act, 1963. This Court further held that these provisions of the Portuguese Civil Code have to be read in the Limitation Act, 1963, as if the schedule to the Limitation Act stands amended mutatis mutandis and question of any repugnancy does not and cannot arise. The earlier decision [(Justiniano (supra)], obviously was on an inspiration from the provisions of Section 3 of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration), Act, 1965 by which both the Code of Civil Procedure, 1908 and the Arbitration Act, 1940 were extended to the Union Territory of Goa, Daman and Diu and it is on this perspective this Court in paragraph 10 of the Report observed :
"......Section 4 of the Act repeals so much of the law in force in the Union territory of Goa, Daman and Diu as corresponds to the Code of Civil Procedure 1908 or the Arbitration Act, 1940. This Act also neither expressly nor by implication repeals the provisions relating to limitation contained in the Portuguese Civil Code".
2. Turning on to the factual matrix at this juncture however, be it noted that - Syndicate Bank is in Appeal against the order of Panaji Bench of the High Court of Judicature at Bombay in First Appeal No. 73/1985 wherein the High Court came to a definite conclusion that in the event the cause of action, as has been in the matter under consideration, has arisen outside the Portuguese law, then part of the aforesaid law dealing with a period of limitation will not apply and the same would be governed by the Indian Limitation Act and since the cause of action under consideration arose outside the Portuguese Law, no exception can be taken to the judgment and decree of the Civil Judge, Senior Division, Panaji as regards the rejection of plaint being barred by limitation.
3. Incidentally, the only ground of challenge in the Appeal before the High Court also pertained to the issue of limitation. Both the learned Civil Judge and the High Court however, relied on a decision of the Bombay High Court in the case of M/s. Cadar Constructions v. M/s. Tara Tiles2 wherein the High Court after consideration of the decision of this Court in Justiniano s case (supra) summarised the situation in paragraph 25 of the report as below:
"25. We may now summarise our conclusions in this regard.
(i) Provisions in the Portuguese Civil Code or other Codes in force in this Union Territory relating to the periods of limitation are local laws within the meaning of Section 29(2) of the Indian Limitation Act, 1963 as pointed out by the Supreme Court in Justiniano s case.
(ii) But they are also special laws dealing with the rights and liabilities under the Codes themselves of which they form a part.
(iii) If any cause of action arises under the Portuguese law in
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