Taxmann's Jurisprudence Interpretation & General Laws (JIGL) | CRACKER

CHAPTER-WISE MARKS DISTRIBUTION

BAR OF LIMITATION & EXTENSION OF LIMITATION

1.Explain the ‘doctrine of sufficient cause’ for condonation of delay as provided in section 5 of the Limitation Act, 1963.

[June 2012 (5 Marks)] Or

The test of ‘Sufficient Cause’ is purely an individualistic test, under the Limitation Act, 1963 Clarify.[Dec. 2020 (4 Marks)]

Ans.: Section 5 of the Limitation Act, 1963 allows the extension of prescribed period in certain cases on sufficient cause being shown for the delay. This is known as doctrine of “sufficient cause”.

Section 5 provides that any appeal or application (not plaint or suit) may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Section 5 applies only to appeals or applications. The reason for non-applicability of the Section to suits is that, the period of limitation allowed in most of the suits extends from 3 to 12 years whereas in appeals and application it does not exceed 6 months.

Examples of sufficient cause: What is sufficient cause and what is not may be explained by the following judicial observations:

(a) Wrong practice of High Court which misled the appellant or his counsel in not filing the appeal should be regarded as sufficient cause under Section 5.

(

b)In certain cases, mistake of counsel may be taken into consideration in condensation of delay, but such mistake must be bona fide

(

c) Wrong advice given by advocate can give rise to sufficient cause in certain cases.

(

d) Mistake of law in establishing or exercising the right given by law may be considered as sufficient cause. However, ignorance of law is not excuse,

not the negligence of the party or the legal adviser constitutes a sufficient cause.

(e) Imprisonment of the party or serious illness of the party may be considered for condonation of delay.

(

f) Time taken for obtaining certified copies of the decree of the judgment necessary to accompany the appeal or application was considered for condoning the delay.

(g) Non-availability of the file of the case to the State Counselor Panel Lawyer is no ground for condonation of inordinate delay.

(h) Ailment of father during which period the defendant was looking after him has been held to be a sufficient and genuine cause.

2. The decision of a Court allowing a suit which had been instituted after the period prescribed is not vitiated for want of jurisdiction. Discuss it in the light of provisions under section 3 relating to Bar of Limitation under Limitation Act, 1963. [June 2021 (4 Marks)]

Ans.: Bar of Limitation [Section 3]: Any suit, appeal or application if made beyond the prescribed period of limitation, it is the duty of the Court not to proceed with such suit, appeal and application.

This provision of Section 3 is known as ‘Bar of Limitation’. The provisions of Section 3 are mandatory.

The Court can suo motu take note of the question of limitation. The question whether a suit is barred by limitation should be decided on the facts as they stood on the date of presentation of the plaint. It is a vital section upon which the whole Limitation Act depends for its efficacy.

The effect of Section 3 is not to deprive the Court of its jurisdiction. Therefore, decision of a court allowing a suit which had been instituted after the period prescribed is not vitiated for want of jurisdiction. A decree passed in a time barred suit is not a nullity.

3. Discuss the provisions relating to persons under legal disability under the Limitation Act, 1963.

[Dec. 2019 (4 Marks)]

Ans.: Legal disability [Section 6]: Law of limitation relating to legally disabled persons is explained below:

(1) If a person entitled to institute a suit or make an application is a minor, insane or idiot at the time of cause of action, the period of limitation to file a suit or to make an application will start when such disability ceases.

(2) Where one legal disability is followed by another legal disability, the disabilities are successive and the limitation period will run when all the legal disabilities are ceased.

(3) If a legal disability continues up to a death, then period of limitation will run for legal representative (who is not legally disabled) from the date of death.

(4) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.

BARRING REMEDY NOT RIGHT

4. “Law of limitation bars the remedy in a court of law only when the period of limitation has expired, but it does not extinguish the right that it cannot be enforced by judicial process.” Elaborate.

[Dec. 2014 (4 Marks)]

Or

The Law of Limitation under the Limitation Act, 1963 bars the remedy but it does not extinguish the right. Explain in brief.

[June 2019 (4 Marks)]

Ans.: Barring Remedy Not Right: The Law of limitation is based on equitable principle that equity helps the diligent and not the indolent. It induces the claimants to be prompt in claiming the relief.

The law of limitation bars the remedy only after the limitation period has expired, but it does not extinguish a right on which the suit has to be based. In all personal actions the right subsists although the remedy is no longer available. If, therefore, a creditor, whose debt becomes statute barred, has any means of realizing and enforcing claim by any method except by a suit, the Limitation Act does not prevent him from recovering his debt by such means. Thus, if a time barred debt is settled outside the Court, it is not illegal. If the debtor without being aware of bar of time pays debt, he cannot sue the creditor to refund the money paid to him on the ground of recovery being time barred.

Example: Ram owes Shyam a sum of ` 2,00,000. The debt is barred because of the law of limitation. The Court shall dismiss the suit if filed by Shyam for the recovery of the debt after the period of limitation (i.e. after 3 years). However, if Ram pays Shyam the amount even after the same has become time barred, the payment would be a valid one.

5. “Law of limitation bars the remedy, but does not extinguish the right.” Explain the statement with its exceptions.

[Dec. 2011 (4 Marks)]

Ans.: Barring Remedy Not Right: Please refer to answer of Question No. 4. The Limitation Act, 1963 makes specific provisions for exclusion of certain time in some cases for computation of the prescribed period of limitation. These provisions are as under:

LAW RELATING TO LIMITATION

Exclusion of time in legal proceedings. [Section 12]

Exclusion of time during which leave to sue or appeal as a pauper is applied for. [Section 13]

Exclusion of time bona fide taken in a court without jurisdiction. [Section 14]

Exclusion of time in certain other cases. [Sections 15, 16 & 17].

CONTINUOUS RUNNING OF TIME

6. “Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application can stop it.” Comment. [Dec. 2011 (4 Marks)], [Dec. 2014 (4 Marks)] Or

Explain the meaning of continuous running of time under Section 9 of Limitation Act with exceptions and applicability. [Dec. 2022 (4 Marks)]

Ans.: Continuous running of time [Section 9]: Once a period of limitation starts no subsequent disability or inability can stop it. The applicability Section 9 is limited to suits and applications only and does not apply to appeals unless the case fell within any of the exceptions provided in the Act itself. Section 9 applies when the cause of action or right to move the Court continues to exist on the date of making the application. Thus, the time runs, when the cause of action accrues. Thus, once time has begun to run, no subsequent disability or inability stops it.

Exceptions: Time for limitation runs when the cause of action accrues. However, certain exceptions were provided in Sections 4 to 8.

(1) Section 4 provides that if the period prescribed expires on a day when the Court is closed, the application etc., may be made on the day, the Court reopens.

(2) As per Section 5 condonation of delay is allowed on sufficient grounds.

(3) Sections 6, 7 & 8 allow extension of time in certain cases of disability.

7. Manoj died on 3rd August, 2016 before a right to institute a suit accrued, leaving behind a minor son (age of 15 years). Decide the time from where the period of limitation shall be calculated under Limitation Act, 1963. [Dec. 2018 (4 Marks)]

Ans.: Effect of death on or before the accrual of the right to sue [Section 16]: In case of death of a person before the right to institute a suit accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting such suit or making such application.

In the given case, the period of limitation shall be computed from the time when the minor son attain the age of majority and become eligible/capable of filing a suit or making such application as required under the Law.

COMPUTATION OF PERIOD OF LIMITATION

8. The law of limitation bars the remedy in a court of law when the period of limitation has expired. However, there are certain exclusions in the computation of the period of limitation. Explain. [June 2011 (4 Marks)] Or

Computation of period of limitation for an appeal or an application for leave to appeal. Comment. [Dec. 2012 (4 Marks)]

Ans.: The Limitation Act, 1963 makes specific provisions for exclusion of certain time in some cases for computation of the prescribed period. These provisions are follows:

(1) In case of any suit, appeal or application, the period of limitation is to be computed exclusive of the day on which the time begins to run. [Section 12(1)]

(2) The day on which the judgment complained or was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. [Section 12(2)]

(3) Time required for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded. [Section 12(3)]

(4) Time required for obtaining a copy of the award shall be excluded. [Section 12(4)]

(5) Time during which the applicant has been prosecuting in good faith, his application for “leave to sue or appeal as a pauper is applied for”, shall be excluded. [Section 13]

(6) Civil proceeding relating to the matter in issue had been initiated in a Court which is unable to entertain it, by lack of jurisdiction or by any other like cause shall be excluded. [Section 14]

(7) Exclusion of time in certain other cases [Sections 15 & 16]:

(a) If suit or application for the execution of a decree had been stayed by an injunction or order then such period of injunction shall be excluded.

(b) Time required obtaining the sanction/consent of the Government shall be excluded.

(c) The time during which the defendant has been absent from India and from the territories outside India but administered by the Central Government, shall be excluded.

LAW RELATING TO LIMITATION

(d) Where the suit or application is a based upon the fraud or mistake of the defendant or respondent or his agent or in other cases as mentioned in Section 17, the period of limitation shall not begin to run until the plaintiff or applicant has discovered fraud or mistake subject to certain exceptions.

9. Explain the importance of ‘time requisite for obtaining a copy’ under the Limitation Act, 1963 with the help of case law.

[June 2022 (4 Marks)]

Ans.: The Limitation Act, 1963 makes specific provisions for exclusion of certain time in some cases for computation of the prescribed period.

Following are the provisions relating to exclusion of time required to obtain copy:

(1) The day on which the judgment complained or was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

[Section 12(2)]

(2) The time required for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded. [Section 12(3)]

(3) The time required for obtaining a copy of the award shall be excluded. [Section 12(4)]

The term “time requisite for obtaining a copy” means the time which is reasonably required for obtaining such a copy. The Supreme Court in the case of Udayan China Bhai v. R.C. Bali, held that by reading section 12(2) with Explanation it is not possible to accept the submission that in computing the time requisite for obtaining copy of a decree by an application made after preparation of the decree, the time that elapsed between the pronouncement of the judgment and the signing of the decree should be excluded.

10. Indicate period of limitations for filing a suit in respect of the following:

(i) Wages to a seaman

(ii) Wages due to other employees

(iii) Price of food or drink sold by the keeper of a hotel, tavern or lodging house

(iv) Compensation for false imprisonment

(v) Compensation for malicious prosecution

(vi) To enforce payment of money secured by a mortgage

(vii) For possession of an immovable property

(viii) Suit by a mortgagor to redeem or recover the possession of immovable property mortgaged

Ans.: The limitation period prescribed for the various cases is as follows:

Cases Limitation

Wages to a seaman3 years

Wages due to other employees3 years

Price of food or drink sold by the keeper of a hotel, tavern or lodging house3 years

Compensation for false imprisonment1 year

Compensation for malicious prosecution1 year

To enforce payment of money secured by A mortgage12 years

For possession of an immovable property12 years

Suit by a mortgagor to redeem or recover the possession of immovable property mortgaged

30 years

11. What is maximum and minimum period of limitation prescribed by Limitation Act, 1963 and also state that in which kind of suits it is provided ? [Dec. 2021 (4 Marks)]

Ans.: Maximum period of limitation: The maximum period of limitation prescribed by the Limitation Act, 1963 is 30 years and it is provided only for three kinds of suits:

1. Suits by mortgagors for the redemption or recovery of possession of immovable property Mortgaged.

2. Suits by mortgagee for foreclosure.

3. Suits by or on behalf of the Central Government or any State Government including the State of Jammu and Kashmir.

Minimum period of limitation: The minimum period of limitation of 10 days is prescribed for application for leave to appear and defend a suit under summary procedure from the date of service of the summons.

12. Name the kind of suits for which period of limitation prescribed by the Limitation Act is 30 years and 12 years respectively. [Dec. 2022 (4 Marks)]

Ans.: Various suits for which limitation period is 30 years and 12 years under the Limitation Act, 1963 are as follows:

Suit by a mortgagor to redeem or recover the possession of immovable property mortgaged

30 years

Suit by a mortgagee for foreclosure30 years

Other suits relating to immovable property

12 years

Suits relating to trusts and trust property12 years

EFFECT OF ACKNOWLEDGEMENT AND OF PAYMENT OF DEBT/INTEREST

13. What is the effect of acknowledgement on the period of limitation under section 18 of the Limitation Act, 1963?

[June 2019 (4 Marks)], [June 2021 (4 Marks)]

Ans.: Effect of acknowledgement [Section 18]: Following are the requirements for a valid acknowledgement:

(

a) There must be admission or acknowledgement.

(

b) Such acknowledgement must be of an existing liability in respect of a property or right.

(

c) It must be made in writing and signed by the party against whom such property or right is claimed, and

(

d) It must be made before the expiry of period of limitation. If all the above conditions are satisfied, a fresh period of limitation shall be computed from the time when the acknowledgement was signed.

14. State the effects of ‘acknowledgement’ and ‘payment against debt’ on the period of limitation. [Dec. 2011 (4 Marks)]

Ans.: Valid acknowledgement: Please refer to answer of Question No. 13.

Effect of payment of debt or interest [Section 19]: Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment was made. Thus, according to this Section a fresh period of limitation becomes available to the creditor when part-payment of debt is made by the debtor before the expiration of the period of limitation.

15. On 30th November, 2008, Mohan took a loan of ` 20,000 from Sohan. He paid ` 5,000 to him on 31st August, 2011, towards part-payment. After that, Sohan did not receive any amount from Mohan. Subsequently, Sohan instituted a suit for recovery of the dues from Mohan after the expiry of 2 years from the date of last part-payment. Advise, whether (i) the suit is maintainable; and (ii) the part-payment is an acknowledgment of payment. [June 2014 (6 Marks)]

Ans.: Limitation period for the present case is 3 years from the date of loan. Thus limitation period will start from 1-12-2008 and will end on 30.11.2011.

According to Section 19 of the Limitation Act, 1963 a fresh period of limitation becomes available to the creditor when part-payment of debt is made by the debtor before the expiration of the period of limitation.

As per facts given in case Mohan has made part payment on 31-8-2011 i.e. before the expiry of original limitation period hence a fresh period of limitation of 3 years will start from 31-8-2011. Since, Mohan has made application after 2 years from the date of 31-8-2011, the suit is maintainable as limitation period will end at 3 years from the date of 31-8-2011.

LIMITATION & WRITS

16. Explain in brief the relationship between the statute of Limitation and Writs under the Constitution. [June 2023 (4 Marks)]

Ans.: The subject of ‘Limitation’ is dealt with in Entry 13, List-III of the Constitution of India.

The Legislature may, without violating the fundamental rights, enact statutes prescribing limitation within which actions may be brought or varying or changing the existing rules of limitation either by shortening or extending time provided a reasonable time is allowed for enforcement of the existing right of action which would become barred under the amended Statute.

The Statute of Limitation is not unconstitutional since it applies to right of action in future. It is a shield and not a weapon of offence.

The State cannot place any hindrance by prescribing a period of limitation in the way of an aggrieved person seeking to approach the Supreme Court of India under Article 32 of the Constitution. To put curbs in the way of enforcement of Fundamental Rights through legislative action might well be questioned under Article 13(2). It is against the State action that Fundamental Rights are claimed. [

Tilokchand Motichand v. H.P. Munshi]

The Limitation Act, 1963 does not in terms apply to a proceeding under Article 32 or Article 226 of the Constitution. But the Courts act on the analogy of the statute of limitation and refuse relief if the delay is more than the statutory period of limitation. [State of M.P. v. Bhai Lal Bhai]

Where the remedy in a writ petition corresponds to a remedy in an ordinary suit and latter remedy is subject to bar of a statute of limitation, the Court in its writ jurisdiction adopts in the statute its own rule of procedure and in absence of special circumstances imposes the same limitation in the writ jurisdiction. If the right to property is extinguished by prescription under section 27 of the Limitation Act, 1963, there is no subsisting right to be enforced under Article 32 of the Constitution. In other case where the remedy only, not the right, is extinguished by limitation the Court will refuse to entertain stale claims on the ground of public policy. [Tilokchand

Motichand v. H.P. Munshi

]

Jurisprudence Interpretation & General Laws (JIGL) | CRACKER

AUTHOR : N.S. ZAD, KALYANI SHIRODE

PUBLISHER : TAXMANN

DATE OF PUBLICATION : JULY 2023

EDITION : 2023 EDITION

ISBN NO : 9789357782906

NO. OF PAGES : 400

BINDING TYPE : PAPERBACK

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This book is prepared exclusively for the Executive Level of Company Secretary Examination requirement as per the New Syllabus. It covers the questions (topicwise) questions & detailed answers strictly as per the latest examination pattern.

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