Calcutta High Court
M/S. K.C. Das Diamond And Jewellers And ... vs Jewal India And Anr on 30 July, 2014
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Civil Appellate Jurisdiction
Original Side
Present: The Hon'ble Acting Chief Justice Mr. Ashim Kumar Banerjee
And
The Hon'ble Justice Mr. Arijit Banerjee
APO 231 of 2014
With
CS 168 of 2013
M/s. K.C. Das Diamond and Jewellers and Anr.
-Vs.-
Jewal India and Anr.
For the appellant : Mr. Partha Sarathi Bose, Sr. Adv.
Mr. Dibashis Basu, Adv.
Mr. Abhijit Banerjee, Adv.
For the respondent: Mr. Priyankar Saha, Adv.
Mr. S.S. Bhutoria, Adv.
Heard On : 21st and 22nd July, 2014
Judgment on : 30/07/2014
Arijit Banerjee, J.
This is an appeal against the judgment and order dated 17th December, 2013 passed by the Hon'ble Single Judge in G.A. No. 2868 of 2013, C.S. No. 168 of 2013 whereby the Learned Judge dismissed the application filed by the defendant no. 2 for rejection of the plaint as being barred by limitation.
The plaintiff/respondent no. 1 filed a suit against the defendants claiming a money decree of Rs. 41,33,762/- on account of price of diverse jewellery sold and supplied by the plaintiff to the defendants. It is the plaintiff's case that from time to time part payments were received by the plaintiff from the defendants and the last of such payment was received on 21st April, 2010. In paragraph 21 of the plaint the plaintiff has stated as follows:-
"The plaintiff states that the plaintiff's claim is not barred by the laws of limitation inasmuch as the defendant no. 1 firm as continued to make payment of the jewelleries delivered to the defendant no. 1 firm and as such, the last payment in terms thereof was made on 21st April, 2010 thereby acknowledging its liability to make payment of the entire sum as indicated in paragraph 18 hereinabove."
The defendant no. 2 filed an application wherein it has stated, inter alia, as follows:-
"That from the summon of the said plaint it is seen that the plaint was presented before this Hon'ble Court on 23rd April, 2013 and the plaint was filed on that very date that is on 23rd April, 2013 and under the above context it is submitted that the plaint has not been presented or filed in this Hon'ble Court within three years from the date of last payment which is admittedly made by the defendant no. 1 on 21st of April, 2010.
That in paragraph no. 21 of the said plaint it has been stated by the plaintiff that the plaintiff's claim is not barred by laws of Limitation but the defendant no. 1 only submit before this Hon'ble Court that the suit may be rejected, for, it is barred by limitation, as from the date of transaction dated 21st April, 2010, three years have been passed when the suit was presented before the Hon'ble Court."
The defendant no. 2 prayed that the plaint filed in the suit be rejected as barred by limitation.
The learned Judge held that the plaint was instituted within the period of limitation and, therefore, the basis of the application goes. His Lordship dismissed the application.
Hence this appeal.
Appearing in support of the appeal, Mr. P.S. Bose, learned Senior Counsel, urged that it was clear from the writs of summon that the plaint was filed on 23rd April, 2013 i.e. beyond a period of three years from 21st April, 2010. He drew our attention to Section 26 of the Code of Civil Procedure, 1908 which provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. He also drew our attention to Order 4 Rule 1 of the Code of Civil Procedure which provides that every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf. Mr. Bose then referred to Chapter VIII Rule 5 of the Original Side Rules of the Calcutta High Court which is set out hereunder:-
"Date of issue, to be noted in the margin.-Every writ of summons shall show, in the margin, the date on which it was issued, .....the date of the filing of the plaint and whether leave under Clause 12 of the Letters Patent has been granted, and there shall be endorsed thereon the address for service under Rule 24 where the plaintiff sues in person, or the business address of the [advocate acting on the Original Side], where he sues by an [advocate acting on the Original Side]; and where the writ has been amended, it shall also show in the margin the date of the order to amend."
Mr. Bose then drew our attention to Section 3 of the Limitation Act, 1963, relevant extracts whereof are set out hereunder:-
(1) "Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act -
(a) a suit is instituted-
(i) in an ordinary case, when the plaint is presented to the proper officer."
Mr. Bose placed reliance on a few decisions none of which with respect, in our opinion, are very germane to the point in issue. In the case of Farkhundali Nannhay-v.-V. B. Potdar & Anr. reported in AIR 1962 Bombay 162 a Full Bench of the Hon'ble Bombay High Court held that the word 'Suit' in Section 22 of the Payment of Wages Act does not include any legal proceeding. The word 'Suit' is a term of art and ordinarily means a proceeding instituted in a Civil Court by the presentation of a plaint.
The decision in the case of State Trading Corporation of India Ltd.-v.-Ironside Ltd. reported in AIR 1966 Bombay 126 is to the same effect. In fact, both these Bombay cases rely on the Privy Council decision in the case of Hansraj Gupta-v.-Dehra Dun Mussoorie Electric Tramway Co. Ltd. reported in AIR 1933 Privy Council 63.
To do away with all doubts we had called for the original plaint. From the same it appears that it was presented in the department on 18th April, 2013 i.e. within three years from 21st April, 2010. In our view, that was sufficient for stopping limitation from running. We find that the plaint was actually presented in Court and signed by the Learned Judge on 23rd April, 2013 but that in our view, would not be relevant for the purpose of computing limitation. All that the plaintiff could do, it did. It filed the plaint in the department as per the prescribed rules within the period of limitation. If the plaint was placed before the Interlocutory Court some days thereafter, either for the purpose of leave under Clause 12 of the Letters Patent or for grant of any other leave, by which time the period of limitation expires, the plaintiff cannot be made to suffer. We cannot forget the well-recognized maxim of equity namely actus curiae neminem gravabit meaning, act of the Court shall prejudice no man. This age old maxim has been applied by Courts all across the world including our Apex Court. For an example please see the case of Rajesh D. Darbar-v.-Narasingrao Krishnaji Kulkarni reported in JT 2003 (7) SC
209. In the case of Ramgopal Chunilal-v.-Ramsarup Baldevdas reported in AIR 1934 Bombay 91, Beaumont, C.J. speaking for the Division Bench of the Bombay High Court held as follows:-
"But, I think, that the argument of the appellant really involves a confusion between 'presentation of the plaint' and 'admission or receipt of the suit.' To my mind, the plaint, even where leave is required, is presented when it is handed over by the plaintiff or his agent to the proper officer in the Prothonotary's office. If leave is required, the plaint must be submitted to the Chamber Judge and after leave is obtained the officer in the Prothonotary's office must see that the plaint is in order and admit it under O. 4 R. 2 and he cannot admit the plaint until the leave of the Judge has been obtained. But, to my mind, the obtaining of the leave of the Judge and the admission of the plaint does not affect in any way the presentation of the plaint for the purposes of the Limitation Act. That being so, I think that the decision of the learned Judge is right and this suit was instituted within the period of limitation, viz., on 25th May 1932, and the plaintiffs are entitled to judgment in their favour. The appeal is therefore dismissed with costs."
This Division Bench has taken a similar view in its judgment and order dated 8th July, 2014 delivered in APO No. 179 of 2014 (Prime Tradecomm Pvt. Ltd..v-.M/s Saltee Infrastructure Ltd.).
For the reasons aforestated we are of the view that limitation stopped running in the instant case upon presentation of the plaint in the department on 18th April, 2013. The suit was filed within the period of limitation. We find no reason to interfere with the conclusion reached by the Learned Single Judge. The appeal fails and is hereby dismissed. In the facts and circumstances of the case, however, there will be no order as to costs.
I agree.
(Ashim Kumar Banerjee, ACJ.) (Arijit Banerjee, J.)