Back
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.A. Jahagirdar G.D. Kamat, JJ.
Cadar Constructions.... Appellants.
Versus
Tara Tiles.... Respondents.
Letters Patent Appeal No. 18 of 1983, decided on 12-10-1983.
Advocates appeared :
B. Reis, for appellants.
U.S. Kolwalkar, for respondent.
LIMITATION ACT - PORTUGUESE CIVIL CODE - SECTION 29(2) - SUIT FOR RECOVERY OF MONEY - PERIOD OF LIMITATION - APPLICABILITY OF PORTUGUESE CIVIL CODE OR LIMITATION ACT - DISTINCTION BETWEEN SPECIAL AND LOCAL LAWS - INTERPRETATION OF SECTION 29(2) - REPEAL OF PORTUGUESE CIVIL CODE PROVISIONS - EFFECT ON LIMITATION PERIODS.
Fact of the Case:
Plaintiff filed a suit for recovery of money due to him from the defendant for goods supplied. The suit was filed on 14th April, 1971. The defendant contended that the suit was barred by limitation. The trial court decreed the suit overruling the objection on limitation. On appeal, the Judicial Commissioner partly allowed the appeal and remitted the issue of limitation to the trial court for disposal in accordance with law. The trial court held that Article 535 of the Portuguese Civil Code applied to the suit and, therefore, the period of limitation was 30 years from the date of accrual of the cause of action. The Judicial Commissioner confirmed the finding of the trial judge on the question of limitation. The defendant preferred a Letters Patent appeal.
Finding of the Court:
1. The 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. 2. But they are also special laws dealing with the rights and liabilities under the Codes themselves of which they form a part. 3. If any cause of action arises under the Portuguese law in force in the Union Territory, then the period of limitation of the suit based upon that cause of action will be the period mentioned in the relevant Portuguese law. If, however, the relevant provision in the Portuguese law has been repealed and the cause of action has arisen before the repeal of the law then, notwithstanding the repeal, a suit based upon that cause of action can be filed and even in that case the relevant provision relating to the period of limitation will be the provision in the Code itself. 4. If, however, the cause of action has arisen outside the Portuguese law, then that part of the law dealing with the period of limitation will not apply; on the other hand, a suit filed on the basis of the cause of action arising outside the Portuguese law will be governed by the provisions of the Indian Limitation Act, 1963.
Issues: 1. Whether the suit was governed by the provisions of the Portuguese Civil Code or the Indian Limitation Act? 2. Whether the period of limitation provided in Article 535 of the Portuguese Civil Code applied to the suit? 3. Whether the payment made by the defendant on 15th April, 1968 was sufficient to save the suit from limitation under section 19 of the Limitation Act?
Ratio Decidendi: 1. The Portuguese Civil Code provisions relating to the periods of limitation are local laws within the meaning of section 29(2) of the Limitation Act, but they are also special laws dealing with the rights and liabilities under the Codes themselves. 2. If a cause of action arises under the Portuguese law, the period of limitation will be the period mentioned in the relevant Portuguese law. However, if the relevant provision in the Portuguese law has been repealed and the cause of action has arisen before the repeal, the relevant provision relating to the period of limitation will still apply. 3. If the cause of action arises outside the Portuguese law, the period of limitation will be governed by the provisions of the Indian Limitation Act. 4. The payment made by the defendant on 15th April, 1968 was made on behalf of the defendant and is evidenced by the writing of the accountant who was working in the firm of the defendant. Therefore, the payment is sufficient to save the suit from limitation under section 19 of the Limitation Act.
Final Decision: The Letters Patent appeal was dismissed with costs.
Key Points: - The provisions relating to periods of limitation in the Portuguese Civil Code are local and special laws for rights under the Code itself (!) (!) . - If a cause of action arises under Portuguese law, the applicable period is the Portuguese provision; if the relevant Portuguese provision is repealed but the cause of action arose before repeal, the Code provision may still apply (!) (!) . - If the cause of action arises outside the Portuguese law, Indian Limitation Act governs; Article 14 of the Limitation Act applies to suits in this case (!) (!) . - The suit in question is governed by Article 14 of the Limitation Act, considering the interplay of local/special Portuguese law and repeal effects (!) (!) . - Payment on account of debt can reset limitation under Section 19 of the Limitation Act if properly evidenced in writing by the payer or written acknowledgment; in this case, the 5,000 paid on 15 April 1968 was evidenced by a receipt and supported by witness testimony (!) (!) (!) (!) (!) .
2. The plaintiff filed a suit being Civil Case No. 17 of 1971, in the Court of the Civil Judge, Senior Division, Panaji, for recovery of a sum of over Rs. 10,000 on the ground that the said amount was due to him on taking accounts. The amount was due to him for the goods which had been supplied by him to the defendant. The suit was filed on 14th of April, 1971. In the plaint it had been specifically mentioned by the plaintiff that during the period from 19th April, 1967 to 31st March, 1968 the plaintiff had sold to the defendant flooring tiles and like material totally worth Rs. 27, 521.54 inclusive of a sum of Rs. 350 towards the transport charges for the same. After crediting to the defendant's account a total sum of Rs. 19,000 comprising, among others, of a payment of Rs. 5,000 made on 15th of April, 1968, the defendant was said to be liable to the sum of Rs. 8,521. Inclusive of the interest upto the filing of the suit it was to the tune of Rs. 10,032. A decree for the principal sum of Rs. 8, 231 was prayed for along with interest on the same.
3. This suit was resisted by the defendant by contending that the facts were not admitted. In paragraph 2 of the written statement it was contended on behalf of the defendant that the value of the goods mentioned by the plaintiff was not admitted. However, the defendant specifically mentioned as follows :---
"It is admitted the defendants paid on account of the said supply the total amount of Rs. 19,000/-."
In other words, the plaintiff's averment that payment to the tune of Rs. 19,000/- has been made by the defendant was admitted by the latter. The defendant, however, did not choose to deny the fact of the payment of Rs. 5,000 made on 15th of April, 1968. We are mentioning these facts because an argument based upon these facts has been advanced before us. We will revert to that argument later in this judgment. It was also contended on behalf of the defendant that the suit was barred by limitation.
4. The learned trial Judge by his judgment and order dated 1st of March, 1976 decreed the suit overruling the object on the point of limitation taken by the defendant. The learned trial Judge also found, on merits, that a sum of Rs. 8,521 was due to the plaintiff from the defendant, as contended by the plaintiff.
5. The defendant preferred an appeal, being First Civil Appeal No. 15 of 1976, which was partly allowed by the learned Judicial Commissioner by his judgment and order dated 5th of December, 1979. The learned Judicial Commissioner while allowing the appeal only partly adopted a procedure which with great respect, can be called as somewhat unusual. He confirmed the findings of the trial Court on all issues except on the issue of limitation. The learned Judicial Commissioner made the observation that if Article 14 of the Limitation Act applied the suit would be barred by time. However, being unable to decide the question as to whether the Limitation Act applied or whether the provisions contained in the Portuguese Civil Code relating to the limitation applied, the learned Judicial Commissioner thought it fit to remit the issue of limitation to the trial Court for disposal in accordance with law. Normally one would have thought that if there is a pure question of law, as there is in this case, the highest Court of the territory sho
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
