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Case Number

A.F.A.D No. 836 of 1958

Attorney(S)

Satyendra Prosad Jamuar
Awadh Kishore Prasad

Judges

R.K Choudhary, J.

Acts

SECTION 19 LIMITATION ACT
Article 115 of the Limitation Act.10.
article 52 of the Limitation Act,
SECTION 19 LIMITATION ACT

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The sole plaintiff was Chamari Mistry (who died during the pendency of the appeal in the lower appellate court). He was a professional contractor who alleged that he was given several contracts by the defendant Municipality to perform various works and to supply materials at different rates. The plaintiff claimed unpaid dues totaling Rs. 1,335/2/- for works and materials, and with interest and costs the total claim was stated as Rs. 1,552/13/-. The plaint included a list of 30 distinct items: item nos. 1–17, 20, 24 and 25 were described as works done; item nos. 18, 19, 21–23, 26–30 were described as materials supplied.

The Municipality contested the suit mainly on the ground that the plaintiff's claim was barred by limitation. The trial court overruled the limitation defence, disallowed interest, allowed a set-off, and decreed Rs. 1,017/2/- to the plaintiff. On appeal by the Municipality the lower appellate court held the suit to be barred by limitation and dismissed it. This appeal followed from that dismissal.

Legal Issues Presented

Whether the plaintiff's claims for recovery of price of goods supplied and for work done were barred by limitation under the Limitation Act.
Whether the applicable limitation periods were those prescribed by Article 52 (price of goods sold and delivered) and Article 56 (price of work done at request where no time fixed), or whether Article 115 (residuary article for breach of contract) governed the suit.
Whether acknowledgments relied upon by the plaintiff (Exhibit 10 and Exhibit 5) could, under Section 19 of the Limitation Act, operate to save or restart the period of limitation.
Whether the Full Bench decision Mahmood Ghasita v. Sirajuddin (AIR 1922 Lah 198) applied to and controlled the present facts.

Arguments of the Parties

Appellant's Arguments (on behalf of the plaintiff)

Mr. Jamaar (for the appellants) contended that the proper article of the Limitation Act applicable to the plaintiff's claim was Article 115, the residuary article prescribing three years for a suit for compensation for breach of contract (express or implied) where no specific article applies.
The appellant relied upon the Full Bench decision in Mahmood Ghasita v. Sirajuddin, AIR 1922 Lah 198, arguing that the claim should be treated as a single indivisible contract claim governed by Article 115 rather than be split into claims under Articles 52 and 56.
The plaintiff sought to invoke Section 19 of the Limitation Act to save limitation on the basis of two documents: Exhibit 10 (a notice dated 30 December 1953 asking the plaintiff to file old bills by 7 January 1954) and Exhibit 5 (a petition dated 16 December 1955 stating pending bills had to be checked and adjusted).

Respondent's Arguments (on behalf of the Municipality)

The Municipality's primary contention was that the plaintiff's claim was barred by limitation. (The opinion states that other pleas were taken by the defendant, but it does not detail them, and the court decided the appeal on the ground of limitation alone.)

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mahmood Ghasita v. Sirajuddin, AIR 1922 Lah 198	Held that where a plaint does not separate price of materials from price of work and states a single indivisible claim based on a comprehensive contract-rate, Articles 52 and 56 may not apply and Article 115 (residuary article for breach of contract) may govern.	The court distinguished Mahmood Ghasita: in the present case materials and works and their prices were separately and specifically listed (each item priced and set out), so the claim was divisible and therefore Articles 52 and 56 were applicable; Mahmood Ghasita was held not to apply.

Court's Reasoning and Analysis

The court proceeded by first grouping the plaintiff's overall claim into three classes, as identified in the plaint:

Class (i): Items 13–17 and 19–30 — total Rs. 835/4/- (materials claimed).
Class (ii): Items 1–12 — total Rs. 205/14/- (works claimed).
Class (iii): Item 18 — Rs. 94/- (separately determined on merit).

The lower appellate court had found that the Class (iii) claim (item 18) was not established and had dismissed it on the facts; no argument was advanced on this appeal regarding that item.

Regarding the remaining claims, the appellate court applied the Limitation Act as follows:

Article 52 was applied to claims for the price of goods sold and delivered (three-year period where no fixed period of credit was agreed) — the court found there was no fixed period of credit.
Article 56 was applied to claims for the price of work done at the defendant's request where no time was fixed for payment (three-year period from date when the work was done) — the court found no fixed time for payment.

The appellant argued instead that Article 115, the residuary article (three years for compensation for breach of contract where no specific article applies), should apply, relying on Mahmood Ghasita. The court examined Mahmood Ghasita and concluded that that precedent involved an indivisible claim where the plaint did not differentiate between materials and work and was based on a comprehensive rate; therefore Article 115 applied in that case. By contrast, in the present case the plaint set out separate items for works and separate items for materials with individual prices, making the claims divisible and falling squarely within Articles 52 and 56; Mahmood Ghasita was thus not applicable.

The court then addressed limitation dates and the plaintiff's attempt to save limitation under Section 19 (acknowledgment of liability). For Class (i) (Rs. 835/4/-) the list (Exhibit 1) was dated 3 November 1949, so the cause of action for that amount had accrued before 3 November 1949; the court stated the suit was brought on 1 December 1956 and therefore that claim was barred by limitation (the opinion so states).

For Class (ii) (Rs. 205/14/-) the court relied on payment orders (Ext. 3 series) dated 17 June 1952 and treated that as the date the cause of action arose for that part; the opinion records that the suit having been brought on 1 December (the opinion contains inconsistent dates in different paragraphs — both 1st December 1956 and 1st December 1950 appear in the text). The court nonetheless concluded the claim was barred by limitation.

On the Section 19 point the plaintiff relied on two documents:

Exhibit 10: a notice dated 30 December 1953 (calling upon the plaintiff to file old bills by 7 January 1954), and
Exhibit 5: a petition dated 16 December 1955 (filed on behalf of the Municipality referring to pending bills that had to be checked and verified and, after adjustment, paid if due).

The court analysed these documents against Section 19 and Explanation II to Section 19 (which requires an acknowledgment to be in writing and signed by the party, or by some person through whom he derives title or liability; "signed" includes signature by an agent duly authorised). For Class (i) the two documents arose long after the limitation period had expired (the court gave dates showing expiry for that class occurred earlier), and so could not save limitation because Section 19 requires acknowledgment to be made before the expiration of the prescribed period.

For Class (ii) the court observed that Exhibit 10 (30 December 1953) might have saved limitation if the formal requirements of Section 19 were satisfied. But Exhibit 10 was not signed by the Chairman or the Vice-Chairman; it bore the signature of "somebody for the Chairman." There was no evidence that the person who signed was duly authorised by the Chairman as required by Explanation II. Consequently Exhibit 10 did not constitute a valid acknowledgment under Section 19 and could not restart limitation. Exhibit 5 (16 December 1955) was also dated after the relevant limitation period and therefore could not save the claim.

On these bases the court concluded that both principal classes of claim were time-barred and that the lower appellate court's decision to dismiss the suit for limitation was correct.

Holding and Implications

Holding: Appeal dismissed.

Implications and direct consequences:

The appellate court's dismissal of the suit on the ground of limitation was affirmed: the plaintiff's separate claims for materials and for works (as particularised in the plaint) were governed by Articles 52 and 56 of the Limitation Act respectively and were barred by the applicable limitation periods as applied by the lower appellate court.
Section 19 acknowledgments relied upon by the plaintiff (Exhibit 10 and Exhibit 5) were not sufficient to save or restart limitation: Exhibit 10 was not shown to be signed by an authorised person as required by Section 19; Exhibit 5 was dated after the limitation period and could not save the claims.
The Full Bench decision Mahmood Ghasita v. Sirajuddin was considered but distinguished on the ground that the present plaint expressly separated materials and works with individual prices, so the residuary Article 115 did not apply.
Immediate effect: the plaintiff's claims were held time-barred and the appeal was dismissed with costs. The opinion does not discuss broader legal consequences beyond the direct effect on the parties or purport to lay down a new principle of law.

Result recorded in the opinion: "Appeal dismissed."

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Ramlal Mistry v. Commissioners Of Tekari Municipality

1. This is an appeal by the hairs of the sole plaintiff Chamari Mistry, who died during the pendency of the appeal in the lower appellate Court and whose suit for recovery at Rs. 1,552/13/- on account of price of goods supplied to the defendant municipality and for works done by him for the defendant has been dismissed. The plaintiff was a professional contractor, and his case was that he was given several contracts for doing a number of works for the defendant Municipality at different rates and for different amounts. In course of the works, done, in pursuance of above contract, the plaintiff's dues amounted to Rs. 1,335/2/- which were not paid to him, and therefore, he instituted, the suit for recovery of the same together with interest and cost of notices, and the total claim cams to Rs. 1,552/13/- as stated above. In the plaint, he has given a list of the different items of work with specific amount of labour charge for each item and the different materials, supplied by him with specific cost for each of them, and the total number of all these items is 30. Item Nos. 1 to 17, 20, 24, and 25, are the different items of work done by the plaintiff for the defendant. Items Nos. 18, 19, 21, 22, 23, 26, 27, 28, 29 and 30 contain the list of different materials supplied by the plaintiffs to the defendants.

2. The defendant Municipality contested the suit mainly on the ground that the claim of the plaintiff was barred by limitation. There were other pleas also taken but it is not necessary to refer to them because the present appeal will have to be dismissed on the ground of limitation alone.

3. The trial Court, overruled the contention of limitation raised in defence, and also disallowed the claim of the plaintiff for interest. After giving a set off of a certain amount of motley proved to have been advanced to the plaintiff by the defendants the trial court gave a decree to the plaintiff for a sum of Rs. 1,017/2/-. On appeal by the defendant Municipality however, the appellate court held that the suit was barred by limitation and therefore, dismissed the entire suit.

4. The claim of the plaintiff may be grouped in three classes, namely, (i) relating to items 13 to 17 and 19 to 30 mentioned at the foot of the plaint, the total amount of which comes to Rs. 835/4/- (ii) relating to items 1 to 12 the total amount of which comes to Rs. 205/14- and (iii) relating to item No. 18 amounting to Rs. 94/-.

5. With respect to the last class namely, item No. 18, the finding of the lower appellate Court is that this claim has not been established and the claim of the plaintiff with respect to this item has been dismissed on merit. In this appeal, no argument could be advanced with respect to this item as the question relating to this item was concluded by finding of fact.

6. With respect to the items relating to supply of materials, the court of appeal below has applied article 52 of the Limitation Act, which provides three years' period of limitation for a suit to recover the price of goods sold and delivered, where no fixed period of credit is agreed upon, from the date of the delivery of the goods. In this case, on the finding of the lower appellate court, there was no fixed period of credit agreed upon. With respect to the items relating to the works done by the plaintiff for the defendant, the lower appellate court applied Article 56 of the ??? Act, which prescribes three years period of limitation for a suit to recover for the price of work done by the plaintiff for the defendant at his request, where no time has been fixed for payment, from the date when the work is done. With respect to these items also, the finding of the lower appellate court is that no time had been fixed for the payment.

7. Applying these two articles, the lower appel ??? Court held all the claims put forward on ??? of the plaintiff to be barred by limitation. Mr. Jamaar, appearing, for the appellants, however, has contended that the proper article ??? to the case was Article 115 of the ??? Act, under which the plaintiff had three ??? period of limitation from the date of the ??? of the contract. That article prescribes a period of three years for a suit for compensation for the breach of any contract, express or implied, not in writing registered and not else where provided in the Limitation Act, from the ??? when the contract is broken.

8. This is a residuary article with respect to a suit for compensation for the breach of an ??? contract, and this will apply only where there is no specific article provided else where in the Limitation Act for a particular suit. As Article 52 and 56 specifically provide a period of limitation for a suit for the recovery of price of goods sold and delivered and for the price of work done by the plaintiff for the defendants as Ms. request where no time has been fixed for ??? article 115 could have no application. ??? counsel, however has relied on a Full Bench decision of the Lahore High Court in Mahmoad Ghasita v. Sirajuddin, AIR 1922 Lah 198.

9. In that case, what happened was that the ??? in a suit for the recovery of a certain sum of ??? alleged to be due to the plaintiff for ??? supplied and work done, made no mention of the price of the materials as distinct from the pries of the work, and contained no reference ??? to two claims and there was only one ??? claim, and that was for the balance of the money due to the plaintiff on the basis of a contract by which he was to be paid for ??? thing supplied and done by him in ??? with the contract work at a comprehensive rate. In those circumstances it was held that the claim as laid in the plaint being indivisible ??? it could not be split up into two portions, and therefore, article 52 or 56 could not be applied, and the proper article, that governed the case was Article 115 of the Limitation Act.

10. In the present case, however, two different ??? of claims, namely, the claim for materials supplied and the claim for the works done, are separately mentioned as distinct from each other and containing price of each of the materials and separated cost of each of the works done. That case has, therefore no application to the present case.

11. So far as the claim with respect to class (i), that is, amounting to Rs. 835/4/- is concerned, the various items are covered, by the list (Ext. 1) dated the 3rd of November, 1949. It is, therefore, clear that the cause of action for recovery of the said amount arose to the plaintiffs before the 3rd of November, 1949. The suit was brought on the 1st of December, 1956. It was, therefore, obviously barred by limitation. With respect to class amounting to Rs. 205/14/- it appears that the vice-Chairman of the Municipality passed payment orders (Ext. 3 series) on the 17th of June, 1952. Therefore the cause of action for the recovery of the said amount could be said to have arisen to the plaintiffs on the 17th of June, 1952. The suit having been brought on the 1st of December, 1950 was, therefore, obviously, barred by limitation.

12. On behalf of the plaintiffs, the limitation, was sought to be saved under section 19 of the Limitation Act on the basis of two documents, namely, exhibit 10 and Exhibit 5. Exhibit 10 is a notice dated the 30th of December, 1953, signed by somebody for the Chairman of the Municipality calling upon the plaintiff to file the old bills by the 7th of January, 1954. Exhibit 5 is the copy at a petition dated the 16th of December, 1955 filed on behalf of the Municipality for withdrawing a criminal case against the plaintiffs in which it is stated that there were pending bills of the plaintiffs to be paid by the Municipality and they had to be checked and verified and after adjustment, if any amount was found to be due, the same had to be paid to the plaintiff.

13. On the basis of these two documents the plaintiff claimed that the limitation is saved. So far as the claim for the sum of Rs. 835/4/- covered by class (i)) is concerned both these documents came into existence long after the period of limitation for the suit had expired. As already stated, the cause of action for this item arose on the 3rd of November, 1949, and therefore, the last date of period of limitation to file the suit was the 3rd of November, 1952. Any acknowledgment made thereafter could not save limitation under section 19 of the Limitation Act, because that section clearly provides that the acknowledgment of liability must be made before the expiration of the period prescribed for a suit. The claim for this amount, therefore was, correctly held by the lower appellate court to be barred by limitation.

14. So far as the claim for Rs. 205/14/- covered by class, (ii), is concerned the cause of action appears to have arisen on the 17th of June, 1952, and Exhibit 10 the notice dated the 30th of December, 1953, could save the limitation if the other provisions of section 19 of the Limitation Act had been complied with. That section requires that the acknowledgment of liability in respect of any property or right must be made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability. Explanation 11 of that section states that for the purposes of this section, “signed” means signed either personally or by an agent duly authorised in this behalf. Admittedly this document is not signed either by the chairman or the vice-Chairman of the municipality.

15. It bears the signatures of somebody for the chairman. There is no evidence on the record as to whether the man who signed this notice was authorised by the Chairman to make the acknowledgment as required by explanation 11 of section 19. Thus, the acknowledgment not having been made by the chairman himself or by any person through whom the chairman claimed or by any person duly authorised by the Chairman in this behalf, it could not give a fresh start of limitation to the plaintiff. The other document, namely, exhibit 5 is dated the 16th of December, 1955 long after the expiry of the period of limitation and, for the reasons already given in regard to the claim covered by class (1) this document, will not save the limitation and give any fresh start of period of limitation to the plaintiffs. The decision of the lower appellate Court, therefore, that both the claims of the plaintiffs are barred by limitation is perfectly correct and justified. The result, therefore, is that there is no merit in this appeal which must be dismissed with cost.

IE/I.

16. Appeal dismissed.

Ramlal Mistry v. Commissioners Of Tekari Municipality

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (on behalf of the plaintiff)

Respondent's Arguments (on behalf of the Municipality)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ramlal Mistry v. Commissioners Of Tekari Municipality

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