Union Of India v. Tata Engineering & Locomotive Co. Ltd. .

1. This first appeal arises out of a judgment and decree dt. 23-12-1976 passed by Sri J.K Prasad, 1st Additional Subordinate Judge, Jamshedpur in Money Suit No. 10/17 of 1974-76 whereby and whereunder the said learned Court decreed the plaintiff-respondent's suit.

2. The facts of this case lie in a very narrow compass.

3. The plaintiff-respondent filed the aforementioned suit for recovery of a sum of Rs. 72,136.05 paise on account of short delivery of the suit consignment.

3A. Admittedly, a consignment of 408 pieces of steel rounds, weighing 232.50 kgs. was booked from Durgapur Railway Station for Tatanagar (Telco siding) Railway Station on 19-9-70. The said consignment, according to the plaintiff, was properly packed and was booked under Railway risk.

4. The said consignment reached Tatanagar (Telco siding) on 30-10-70, on which date it was found that 349 pieces of steel rounds out of the aforementioned consignment were not available for delivery. A short certificate was granted and thereafter, the plaintiff filed the aforementioned suit after service of notice upon the defendant-appellant in terms of S. 80 of the C.P.C

5. The learned trial Court framed as many as seven issues, which are as follows:—

“(i) Whether the suit as framed is maintainable?

(ii) Whether the plaintiff has got any cause of action and right to sue?

(iii) Whether the suit is barred by time, waiver, estoppel and acquiescence?

(iv) Whether proper notices under S. 78 I.R Act and under S. 80, C.P.C were duly served on the deft.?

(v) Whether the plaintiff's case for short delivery out of the suit consignment is correct?

(vi) Whether the plaintiff is entitled to the decree as claimed?

(vii) Other relief, if any?”

6. The learned trial Court held that the suit was maintainable and the plaintiff was entitled to a decree. In this appeal, learned counsel for the Railway Administration has raised a short question of law. According to the learned counsel the suit was barred by limitation.

7. Admittedly, the short certificate was granted to the plaintiff-respondent on 30-10-70. It further appears from the record that a notice under S. 80 of the C.P.C was issued on 29-6-72 (Ext. 1). The learned counsel for the appellant contended that as the said notice under S. 80 of the C.P.C was served upon the defendant-respondent within the period of limitation prescribed for institution of the said suit, i.e, by 30-10-73, the plaintiff cannot be given any benefit of the period of two months required for service of notice under S. 80 of the C.P.C upon the defendant-appellant. The learned counsel in this connection has placed strong reliance upon a recent decision of this Court in National Coal Development Corporation v. Union of India reported in 1988 BLT (Rep) 59 : (AIR 1988 Patna 338). In the said decision a learned Single Judge of the Court has held as follows:—

“13. Section 9 of the Limitation Act embodied the principles that once the time for filing suit or application starts running, it will continue to run till it has exhausted the full prescribed period. Sub-sec. (2) of S. 15 of the Limitation Act deals with the exclusion of period of statutory notice, such as those under S. 80 of the C.P.C The proper way to look after matters is to take complete two months next after delivery of service of notice. The general period of limitation in this type of suit is 3 years under Art. 10 of Limitation Act. In absence of anything otherwise, ordinarily the date of delivery to the party should be taken as the starting point of limitation.

14. It is an admitted position that in this case, the suit was filed on 16-12-1970. The Railway Receipt, Ext. 17 is dt. 26-9-1967. So three years from 26-9-1967 will come to 25-9-1970. The Notice under S. 80 Civil P.C was served on 19-8-1970, on which is admitted. So, from 26-9-1967, we have to minus 37 days in two months because both the general limitation and the period of service of notice under S. 80, C.P.C started to run together. Therefore, the plaintiff can get the benefit of only 23 days under S. 15(2) which if added to 26-9-1970 comes to 19-10-1970, which date the suit should have been filed. The suit, is, therefore, barred by the law of limitation, as it was filed on 26-12-1970.

16. In this case, the short certificate was issued on 20-10-1967, through Ext. 9. Even, if this date is taken as the date, for the purpose, the suit appears to be barred under the law of limitation. The short certificate was issued on 20-10-1967 and if the period of three years is added, it comes to 19-10-1970, by which date the suit ought to have been filed to save the limitation. Notice under S. 80 was, served through Ext. 7. It is dt. 19-8-1970. So the two months include the period from 20-10-1967 to 19-10-1970, which falls within the period of main run of limitation of the general law of limitation. Therefore, the argument that the two months should be added after 19-10-1970 to save the limitation is wholly unwarranted in law as required under S. 15(2) of the Limitation Act. So, even though his argument is accepted the period of two months is not available, because that period falls within the main run of limitation. Admittedly, the suit was filed on 16-12-1970 and as such, even according to his sub-mission, if the date of the short certificate is taken to be the date for counting the period of limitation, it is barred atleast by one month and 15 days. In this view of the matter also, the whole claim of the plaintiff appears to be barred under the law of limitation. In this case, the date of delivery to the party is earlier to the date of issue of the short certificate. Therefore, in any view, the whole claim of the plaintiff is barred by the law of limitation.”

8. The learned counsel for the appellant, on the basis of the aforementioned decision, submits that the suit was obviously barred by limitation as the same was filed on 2-1-74.

9. Mr. V.P Singh, learned counsel appearing on behalf of the respondent, submitted that the aforementioned decision of this Court in National Coal Development Corporation v. Union of India's case (AIR 1988 Patna 338) does not lay down the correct law inasmuch as in a case of this nature the plaintiff is entitled to exclude the period of notice under S. 80 of the C.P.C The learned counsel submits that if two months period is excluded from computing the period of limitation for institution the suit in terms of S. 15(2) of the Limitation Act, the suit must be held to have been instituted in time.

10. The learned counsel, therefore, submitted that as the short delivery was made on 30-10-70 the plaintiff was entitled to file the suit on 30-12-73. According to the learned counsel if 60 days period is excluded for the purpose of computation in terms of S. 15(2) of the Limitation Act, 1963, the said suit could have been filed on 30-12-73 and as on that date Civil Court was closed and it reopened on 2-1-74, the suit filed on that date cannot be said to be barred under the law of limitation in view of S. 4 of the Limitation Act.

11. Section 80 of the C.P.C puts an embargo on institution of a suit against the Central Government and its officers; and provides that when a suit relates to a Railway a, notice is required to be served upon the General Manager of that Railway and until expiration of two months after notice has been delivered to or left at its office, the suit cannot be instituted. It is thus evident that service of notice under S. 80 of the C.P.C is a condition precedent for institution of a suit.

12. Section 15(2) of the Limitation Act reads as follows:

“In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirement of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.”

13. True it is that in terms of S. 9 of the Limitation Act when time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it but S. 9 does not provide for a computation of the period of limitation.

14. Part III of the Limitation Act provides for the computation of the period of limitation.

15. The words ‘shall be excluded’ occurring in the said provision are important. Such exclusion of period is to be made from the period of limitation for the purpose of its computation. The period of limitation, as in the instant case, is three years in terms of Art. 10 of the Limitation Act. Therefore, it is evident that in computing the period of limitation for a suit, the time required for service of a notice in accordance with the requirement of S. 80 of the C.P.C is to be excluded. It, therefore, necessarily follows, that the period of two months which is required for service of a notice upon the Central Government, shall be added to the period of three years for the purpose of computation of the period for instituting a suit against the carrier for compensation for short delivery or non-delivery of the goods.

16. In other words, S. 15(2) of the Limitation Act authorises deduction of the period of notice where such a notice is required to be given in terms of S. 80 of the C.P.C However, the matter would have been different if such a notice was not required to be served as a condition precedent for institution of a suit.

17. Reference in this connection may be made in Bansi v. Governor General of India in Council reported in AIR 1952 Cal 35 (FB), wherein a distinction has been made between a notice which is a condition precedent for institution of a suit like S. 80 of the C.P.C a notice which in not so as in S. 77 of the Railways Act.

18. This aspect of the matter has also been considered by the Supreme Court in Amar Chand Inani v. Union of India reported in AIR 1973 SC 313 wherein it has been held as follows (Para 7):—

“Section 80 only prescribes a condition precedent for the institution of the suit and has nothing to do with the period of limitation for a suit except that under S. 15(2) of the Act, the period of notice can be deducted in calculating the period of limitation.”

(Underlining in mine)

It is, therefore, obvious that the period of two months mentioned in S. 80 of the C.P.C is to be deducted.

19. If that is so, then, in my opinion, the suit could have been instituted by the plaintiff till 30-12-73.

20. It is admitted that on 30-12-73 the Civil Courts were closed. In terms of S. 4 of the Limitation Act if the prescribed period for any suit, appeal and application expires on a day when the Court is closed, a suit, appeal or application may be instituted, preferred or made on the day when the Court reopens.

21. It is admitted that the Civil Courts reopened on 2-1-74, on which date the suit was instituted.

22. This aspect of the matter, has also been considered in State of Rajasthan v. Rao Dhir Singh reported in AIR 1972 Raj 241 and State of Rajasthan v. Sube Singh reported in AIR 1982 Raj 115.

23. In the State of Rajasthan's case (AIR 1982 Raj 115) (supra) the Rajasthan High Court held as follows (Para 3):—

“It is not in dispute that if the period is spent in notice under S. 80, C.P.C and the Sunday, which intervened, is excluded then the suit was within time. I am, therefore, convinced that the suit of the plaintiff was within time and the plea of limitation is untenable both on facts and law.”

24. Unfortunately, in National Coal Development Corporation v. Union of India's case (AIR 1988 Patna 338) (supra) the attention of the learned Judge was not drawn to the aforementioned Supreme Court decision as well as the other decisions. The case was argued as a case of first impression and the learned counsel appearing for the parties were remiss in not bringing to his Lordship's notice the various decisions on the aforementioned point.

25. In view of Art. 141 of the Constitution I am bound to follow the Supreme Court decision as the law declared by the Supreme Court is the law of the land.

26. In this view of the matter, with almost respect to the learned Judge I am unable to subscribe the view taken in National Coal Development Corporation v. Union of India's case (AIR 1988 Patna 338) (supra).

27. In this view of the matter, I find that the suit was instituted within the period of limitation. There is, thus, no merit in this appeal which is accordingly dismissed with costs.

Appeal dismissed.