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1966 Supreme(Mad) 27
Madras High Court
NATESAN
Trustees of the Port of Madras - Appellant
Versus
Mettur Chemical and Industries Ltd., Salem - Respondent
Decided On : 01/21/1966
V. V. Raghavan and J. Nagarajan, for Petitioner; N. Krishnamachari for Respondent.
S. 110 of the Madras Port Trust Act does not expressly exclude the applicability of S. 15(2) of the Limitation Act.
Headnote:
LIMITATION ACT - S. 110 OF MADRAS PORT TRUST ACT - S. 15(2) AND S. 29(2) OF LIMITATION ACT - APPLICABILITY - S. 110 OF THE MADRAS PORT TRUST ACT DOES NOT EXPRESSLY EXCLUDE THE APPLICABILITY OF S. 15(2) OF THE LIMITATION ACT.
Fact of the Case:
The plaintiffs filed a suit for the recovery of damages for short delivery of goods against the Trustees of the Port of Madras. The defendants contended that the suit was barred under S. 110 of the Madras Port Trust Act (II of 1905) as it was not filed within six months from the accrual of the cause of action.
Finding of the Court:
The court held that S. 110 of the Madras Port Trust Act does not expressly exclude the applicability of S. 15(2) of the Limitation Act. Therefore, the plaintiffs were entitled to exclude the period of one month's notice required under S. 110 while computing the period of limitation.
Issues: Whether S. 110 of the Madras Port Trust Act expressly excludes the applicability of S. 15(2) of the Limitation Act.
Ratio Decidendi: The court held that the language of S. 110 of the Madras Port Trust Act does not expressly exclude the applicability of S. 15(2) of the Limitation Act. The court relied on the decision of the Supreme Court in Vidyacharan v. Khubchand, AIR 1964 SC 1099, which held that S. 29(2)(a) of the Limitation Act speaks of express exclusion, but there is no express exclusion in sub-section (8) of S. 116-A of the Act.
Final Decision: The court dismissed the revision petition filed by the defendants.
2. The learned counsel Mr. V. V. Raghavan appearing for the petitioners contends that the suit should not have been entertained at all by the court below as it was barred under S. 110 of the Madras Port Trust Act (II of 1905). The plaintiffs had been given the Certificate on 2-7-1958 and on that date, the cause of action for the suit arose. The suit has been actually filed on 22-1-1959. S. 110 of the Madras Port Trust Act provides:
"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 proceeding."
Admittedly, the notice required under the first part of S. 110 has been given in this case. But what the learned counsel for the defendants contends is that the suit must be filed within six months of the accrual of the cause of action and the language of S. 110 is emphatic that no suit shall be filed afterwards.
3. The plaintiffs seek to get over this bar pleaded by relying on S. 15(2) of the Indian Limitation Act, 1908 which enables plaintiffs to exclude the period of say notice which has to be given in accordance with the requirements of any enactment while computing the period of limitation prescribed for any suit. There can be no question that if the plaintiffs can exclude this period, the suit will be within time. For taking the benefit of S. 15(2), the learned counsel for the plaintiffs relies on S. 29(2) of the Indian Limitation Act. Section 29(2) provides that :-
"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of S. 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law - (a) the provisions contained in S. 4, Ss. 9 to 18 and S. 22 shall apply only in so far as and as to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply........'The first contention of the learned counsel for the petitioners is that S. 110 of the Port Trust Act by itself provides a complete code and it is not open to the plaintiffs to rely on S. 29 of the Limitation Act to seek the benefit of S. 15 of the Act to exclude the one month period of notice. The learned counsel lays considerable emphasis on the language of S. 110 that the suit shall not be filed "after six months from the accrual of the cause of action."
In fact, the contention is that the right of suit is given under certain conditions and this period of six months must be taken as a condition for such a suit. This contention to begin with I am unable to agree. The party's right of suit in this case is under the General law outside the Act and by S. 110, only a limitation is placed on the period within which the suit should be filed. It is not the Act that confers the right of suit. But for the specific provision, the plaintiffs would be governed by the provisions of the Indian Limitation Act. In my view, the plaintiffs would be entitled to rely on S. 29(2) of the Act and I am unable to agree with the contention of the learned counsel that S. 110 provides a complete code itself both in respect of the substantial law as well as the procedural law. It even does not purport to be one
