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2015 Supreme(Bom) 273
High Court of Judicature at Bombay
K.R. SHRIRAM, J.
Jaswinder Paul Batra of U.S.A. & Others - Petitioners
Versus
Neeru Batra & Others - Respondents
Suit No. 2063 of 2001
Decided On: 23-02-2015
For the Plaintiff:Kamal Katha a/w. Akshay Vani, Advocates.
For the Defendants:D1, Vibhav Krishna a/w. Sharath Pai, D3, Rushabh Sheth i/b M/s. M.S. Bodhanwala & Co., Advocates.
Headnote:Civil Procedure Code, 1908 - Section 11 Plea of res judicata. Failure of defendant to discharge his onus to prove that suit is hit by res judicata, renders suit not barred by res judicata.
Limitation Act, 1963 - Section 6 - Suit for benefit of minors. - Suit filed by trustees for benefit of minor, before minor attaining majority, is not barred by limitation. - In the matter of Satyendra Narain Sinha and others v. Pitamber Singh and others, AIR 1938 Patna 92, where the issue was for execution of a decree, it was held that a minor is not precluded from applying within the statutory period of three years from his attaining majority and order in previous proceeding does not affect it. The Court held that Section 6 applies to every minor, whether he has a guardian or not and the existence of a minor competent to sue is immaterial. Under Section 6(1) of the Act, a minor is "entitled to institute a suit or make an application for the execution of a decree" within the statutory period of three years after attaining majority and it is clear that the Legislature never intended to restrict the protection given to a minor by the acts of his guardian in the matter of making an application for execution.
The Court further held that where a guardian for minor applies for execution of a decree on behalf of the minor and that application is held ]to be barred by limitation, the minor is not precluded from applying for execution of decree within the statutory period of three years from the date of attaining majority and the orders passed in the previous execution proceedings is not binding on him. In the matter of The Electricity Board U.P. State v. Sheo Nath Singh and another, AIR 1976 Allahabad 118, the Court held that where the child of the deceased was a minor on the date of accident a suit for compensation filed on his behalf and for the benefit of his widowed mother during the continuation of his minority but after expiry of ordinary period of limitation will be saved under Section 6.
Limitation Act, 1963 - Section 17 - Suit alleging fraud. - Suit alleging fraud in Bank, filed within three years from date of knowledge about fraud, is within limitation period. - The Apex Court in the matter of Pallav Sheth v. Custodian and others, (2001) 7 SCC 549, has in paragraphs 47 and 48, held as under :
"Section 17 of the Limitation Act, inter alia, provides that where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of the defendant or his agent (Section 17(1)(b)) or where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him (Section 17(1)(d)), the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. These provisions embody fundamental principles of justice and equity, viz. that a party should not be penalised for failing to adopt legal proceedings when the facts or material necessary for him to do so have been wilfully concealed from him and also that a party who has acted fraudulently should not gain the benefit of limitation running in his favour by virtue of such fraud.
The provisions of Section 17 of the Limitation Act are applicable in the present case. The fraud perpetuated by the appellant was unearthed only on the custodian receiving information from the Income Tax Department, vide their letter of 5th May, 1998. On becoming aware of the fraud application for initiating contempt proceedings was filed on 18th June, 1998, well within the period of limitation prescribed by Section 20. It is on this application that the Special Court by it’s order of 9th April, 1999 directed the application to be treated as a show cause notice to the appellant to punish him for contempt. In view of the abovestated facts and in the light of the discussion regarding the correct interpretation of Section 20 of the Contempt of Courts Act it follows that the action taken by the Special Court to punish the appellant for contempt was valid. The Special Court has only faulted in being unduly lenient in awarding the sentence. We do not think it is necessary, under the circumstances to examine the finding of the Special Court that this was a continuing wrong or contempt and, therefore, action for contempt was not barred by Section 20.’’
A fraud can be established only at the trial and not at the interim stage.
1. By an order dated 30th November 2011, this Court was pleased to frame the following two issues as preliminary issues in this suit:
(1) Whether the suit is barred by the law of Limitation?
(2) Whether the suit is barred under Section 11 of the Civil Procedure Code, 1908 since the plaintiffs had earlier filed a suit before the Court in the State of New York, Surrogate's Court, County of Nassau?
2. One Jaswant Singh Premi expired on 22nd September 1993 in New York, USA leaving behind him a last Will and Testament dated 11th July 1993. The plaintiff no.1 who is the son of the said deceased Jaswant Singh Premi was appointed as an executor under the Will. The plaintiff no.2 is the wife of the first plaintiff. The plaintiff no.3 is the daughter of the plaintiff nos.1 and 2 who, at the time of death of Jaswant Singh Premi was a minor, born on 22nd February 1993. The deceased Jaswant Singh Premi, by way of his Will, created a trust to the benefit of the plaintiff no.3. The plaintiff nos.1 and 2 are trustees of the said trust and they are suing in their capacity as executor and trustees. Defendant no.1 in his written statement in paragraphs 7 and 8 has stated that he was a nominee and hence a trustee. The defendant no.1 was the cousin of the deceased Jaswant Singh Premi and an uncle of the plaintiff no.1. The defendant no.2 is nephew of the deceased and the defendant no.3 is the banking company constituted under the provisions of Banking companies (Acquisition & Transfer of Undertaking) Act, 1980. Defendant no.1 died on or about 3rd August 2012 and is now represented by his legal heirs and representatives. The defendant no.2 is absconding and interpol alerts are pending against him. The cause of action in short is that the defendants in collusion with each other, by the fraudulent acts of omission and commission and by deliberate fraud and suppression of the relevant documents kept the plaintiffs from having full and complete knowledge of the plaintiffs' right to the amounts which were to go for the benefit of plaintiff no.3 under the last Will and Testament of Jaswant Singh Premi and the same has been misappropriated by the defendants. The plaintiff no.3 is the true owner of the amounts and is entitled to recover the same with interest. The amounts involved are substantial. The reliefs sought in the plaint are as under:
(a) a decree against defendant no.1(a) to 3 to render full true and correct accounts in respect of Account No.FCNR 05/92-93 and/or FCNR 424/173/93 deposited by the 1st Plaintiff's father with the 3rd Defendant Bank and all accretions thereto and for or in respect of any other monies that may have been deposited be by or on behalf of 1st Plaintiff's father, Jaswant Singh Premi;
(aa) a decree against Defendant no.1(a) to 3 to render full true and correct accounts in respect of FCNR A/c. No.0756232/8/93 deposited by the 1st Plaintiff's father with the 3rd Defendant Bank and all accretions thereto and for or in respect of any other monies that may have been deposited by or on behalf 1st Plaintiff's father Jaswant Singh Premi;
(ac) a decree against Defendants no.1(a) to 3 to render full true and correct accounts in respect of Account Nos.(i) FCNR 0677213/2/93-94, (ii) 0677255/33/93-94, (iii) FCNR 0677249/27/93-94, (iv) FCNR 0676537/31/92, (v) FCNR 0676541/35/92, (vi) FCNR 0676571/70/92-93, (vii) FCNR 0677258/34/93-94, (viii) FCNR 0773134/93-94 and (ix) FCNR 0773739/5/93-94 deposited by the 1st Plaintiff's father with the 3rd Defendant Bank and all accretions thereto and for or in respect of any other monies that may have been deposited by on or behalf of 1st Plaintiff's father Jaswant Singh Premi;
(b) a decree against Defendants no.1(a) to 3 in the sum of US Dollars 4,11,817.87 with interest thereon at 12% per annum from 4th February 1994 as per particulars annexed hereto and marked Exhibit 'I, being the amount of the said deposit and accretions thereto and/or as and by way of damages for loss caused to the Plaintiff
