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2011 (8) Supreme 686
SUPREME COURT OF INDIA
Asok Kumar Ganguly and Jagdish Singh Khehar, JJ.
M/s. Disha Constructions & Ors. — Appellants
versus
State of Goa & Anr. — Respondent(s)
Civil Appeal No.10763 of 2011
Arising Out of Special Leave Petition (Civil) No. 1352 of 2011
Decided on : 9-12-2011
Limitation Act, 1963 -Section 15(2) –Interpretation of-Proper interpretation of Section 15(2) of the Act would be that in computing the period of limitation, the period of notice, provided notice is given within the limitation period, would be mandatorily excluded- That would mean a suit, for which period of limitation is three years, would be within limitation even if it is filed within two months after three years, provided notice has been given within the limitation period- In such a case, the period of notice cannot be counted concurrently with the period of limitation- If it is done, then period of notice is not excluded- Any other interpretation would be contrary to the express mandate of Section 15(2) of the Act (Para 16)
Facts of the Case :
A.Suit was filed by appellants herein in the instant case praying for payment of money which according to appellants was due to them for undertaking the construction work on behalf of the defendants. Suit was dismissed by District Judge holding that plaint cannot be registered as it was barred by limitation as also in view of fact that there was no compliance with Section 80 of the Civil Procedure Code insofar as notice on defendant No. 2 is concerned. On an appeal before High Court, it held that the suit was barred by limitation but on the question of notice, High Court came to a different finding and came to conclusion that notice was served.
B. Present appeal has been filed against said order of High Court.
Findings of the Court :
A.In the facts and circumstances of case, notice under Section 80 was admittedly given on 19.2. 2009 which was within the period of limitation and same was received on 27.2. 2009 and two months from the date of receipt expired on 27.4.2009. High Court held, erroneously, that since the suit was filed on 24.10. 2009, which was beyond 30.9. 2009, plaintiffs appellants were not entitled to benefit of exclusion statutorily provided under Section 15(2) of the Act and the suit is barred by limitation.
B. Just because appellants gave the notice before expiry of period of limitation, benefit which was given under Section 15(2) of the Act could not be taken away.Said period of two months must be computed and benefit of exclusion of said two months must be given to appellants even if they had given the said notice within the period of limitation. If the appellants had given the notice after the expiry of period of limitation, then possibly they could not have been given the benefit. Suit held to be within the period of limitation. Appeal was allowed
JUDGMENT
Ganguly, J.
1. Heard learned counsel for the parties.
2. Leave granted.
3. A suit was filed by the appellants praying for payment of money which according to the appellants was due to them for undertaking the construction work on behalf of the defendants. The suit was dismissed by a judgment and order dated 12th November, 2009 by the District Judge, North Goa, Panaji, inter alia, holding that the plaint cannot be registered as it was barred by limitation as also in view of the fact that there was no compliance with Section 80 of the Civil Procedure Code insofar as notice on defendant No. 2 is concerned.
4. On an appeal before the High Court, the High Court was pleased to hold that the suit is barred by limitation but on the question of notice, the High Court came to a different finding and came to the conclusion that notice was served. The material facts of the case are as follows:
5. The appellants-plaintiffs entered into an agreement with respondent No. 1 for construction of a school auditorium for Fr. Agnelo High School under M.P. L.A.D. scheme. On completion of the work on 30th September, 2006 defendant No. 2 issued a certificate of completion dated 3rd October, 2006. Out of the total amount of Rs.24,26,000/- the appellants plaintiffs were paid only Rs.18,12,000/- and therefore, there was a balance amount to be paid. The appellants plaintiffs prayed for the payment of the balance amount but it was denied and the same remained unpaid from 30th September, 2006 and a suit was filed on 24th October, 2009 for recovery of a sum of Rs.9,15,550/- with interest at 18%.
6. The first question, which was examined by the High Court, was whether notice under Section 80, CPC was required to be given to defendant No. 2? The High Court came to the conclusion that such notice was necessary.
The High Court observed as follows:
“Since the suit was filed by the plaintiffs against defendant No. 2 in his official capacity, in my opinion, the defendant No. 2 was certainly required to be given a notice, as required under Section 80 of the Civil Procedure Code and in absence of the same, the suit filed against him had to be necessarily considered as bad in law for want of notice. However, that cannot be said to be fatal to the entire case of the plaintiff because the plaintiff’s suit was essentially for recovery of money and as could be seen from the prayer clause (a) it was filed against defendant No.1. A similar view was held by the Apex Court in Ram Kumar Vs. State of Rajasthan, AIR 2008 (10) SCC 73.”
7. It is a common ground that High Court correctly noted the relevant facts, which are as under:
“...according to the plaintiff, the cause of action had arisen, as pleaded by the plaintiff, on 30/09/2006 and being so, the suit against defendant No. 1 had to be filed before 30/9/2009 that is to say before the expiry of three years, that being the period prescribed, for filing a suit for recovery of money. There is no dispute that the suit was in fact filed on 24/10/2009. There is also no dispute that the plaintiff had sent notice to defendant No. 1 on 19/02/2009 which was received by defendant No. 1 on 27/02/2009. If two months are computed from 27/02/2009, the plaitiffs were required to file the suit on 27/04/2009.”
8. Upon setting out the aforesaid fact, the High Court has noted that the notice under Section 80 was served on Defendant No. 1 on 27th February, 2009 and the period of two months had expired on 27th April, 2009. According to the High Court, the period of limitation expired on 30th September, 2009 and therefore, the suit which was filed on 24th October, 2009, was barred by limitation.
9. Assailing the aforesaid finding, learned counsel for the appellants has drawn our notice to the provision of Section 15(2) of the Limitation Act which is contained under Part III of the Limitation Act, 1963 (hereinafter referred to as ‘the Act’). Part III is under the heading “Computation of period of limitation” and Section 15 deals with “Exclu
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