Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sangeet Lodha and P.K. Lohra, JJ. allowed an application for restoration and condoned the delay in filing of the application.

In the present case, in a peremptory order dated 26-04-2011 the Rajasthan High Court had dismissed an application of Special Appeal in D.B. Special Appeal (W) 1133 of 2011. The petitioner has therefore filed a restoration application for restoration of the dismissed application. The present Bench decided on considering the matter on its merits despite the restoration application being barred by limitation.

The Counsel representing the appellants, R.S. Saluja submitted that according to the peremptory order the appellants were required to file notices within a stipulated time period, which were complied by the appellants as well. The Counsel submitted that the case file of the special appeal was missing and thus, the same could not be attached to the notices. The Counsel also brought to the notice of the present bench an office report which revealed that the missing was found after a period of seven years thus there was no delay on the part of the appellants in the filing.

The Court upon perusal of the office report and various other documents stated that the notices were filed by the appellants within the stipulated time period and the Court erred while dismissing the same in terms of peremptory order. Thus, the Court allowed the restoration application to its original number and condoned the delay.[Shaitana Ram v. State of Rajasthan, 2019 SCC OnLine Raj 2498, decided on 29-08-2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ has held that the Article 65 of Limitation Act, 1963 not only enables a person to set up a plea of adverse possession as a shield as a defendant but also allows a plaintiff to use it as a sword to protect the possession of immovable property or to recover it in case of dispossession.

The Court held that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless.

“In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession.”

Rejecting the contention that there is no conferral of right by adverse possession, the Court held that there is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his   adverse possession is absolute and on dispossession, he can sue based on ‘title’ as envisaged in the opening part under Article 65 of Act. The Court, hence, held that

“the plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff.”

[Ravinder Kaur Grewal v. Manjit Kaur, 2019 SCC OnLine SC 975, decided on 07.08.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Tribunal, Mumbai: The Bench of Bhaskara Pantula Mohan, Member (Judicial) and V. Nallasenapathy, Member (Technical) allowed a petition filed by TJSB Sahakari Bank (“the Bankfor admission of an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.

The Bank was a member of the “SVC Bank Consortium” that sanctioned credit facilities to the Unimetal Castings Ltd. (“Corporate Debtor”) on 25-2-2013. The Bank sought initiation of Insolvency Resolution Process against the Corporate Debtor under Section 7 on the ground of default in repayment of the loan to the extent of more than Rs 6.38 crores.

Aditya Pimple, Advocate instructed by MAG Legal representing the Corporate Debtor raised various contentions to oppose the application of the Bank. One of the contentions related to applicability of Limitation Act, 1963 was that the claim of the Bank was barred under Article 137. For this, he relied on a recent judgment in B.K. Educational Services (P) Ltd. v. Parag Gupta and Associates, 2018 SCC OnLine SC 1921 wherein the Supreme Court clarified that the Limitation Act, 1963 is applicable to Insolvency and Bankruptcy Code, 2016. It was submitted that the date of alleged default was 30-06-2015 (the date on which Corporate Debtor’s account was declared a Non-Performing Asset). Furthermore, since the petition was filed on 23-8-2018, i.e., after more than 3 years of the date on which the cause of action arose (and also the right to apply accrued), therefore it was barred by limitation.

Per contra, Nausher Kohli, Advocate instructed by DSK Legal who appeared for the Bank, submitted that the Bank’s name and loan was shown in the balance sheet of the Corporate Debtor for the Financial Year ending 2017. This according to hi was an acknowledgement of liability. And therefore, it was contended that the debt was not barred by limitation even when the insolvency application was filed after 3 years from the date of default.

The tribunal noted that the Corporate Debtor did not dispute the fact the loan was shown as a liability in its balance sheet. It was observed, ” when the liability is shown in the balance sheet, that is a clear acknowledgement of debt by the Corporate debtor. There are umpteen numbers of judgments to say that the debt shown in the balance sheet is an acknowledgement of liability.” In such a view, the Tribunal held that the contention of the Corporate Debtor would not hold water. Having been satisfied that the Corporate debtor defaulted in making a payment towards its liability to the Bank, the Tribunal allowed the petition and admitted the bank’s application filed under Section 7 IBC. [TJSB Sahakari Bank Ltd. v. Unimetal Castings Ltd., CP (IB)-3622/I&BP/MB/2108 dated 25-01-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vinod Goel, J. dismissed a petition against the order of District and Sessions Judge, Rohin Courts whereby he has dismissed petitioner’s application under Order 7 Rule 11 CPC.

The petitioner was the defendant in a suit for recovery filed by the respondent. The respondent had transferred Rs 5,00,000 in the account of petitioner on 16-3-2015. The petitioner filed an application under Order 7 Rule 11 for rejection of plaint on the ground that the suit being filed on 16-03-2018 was beyond the period limitation of 3 years prescribed under Article 19 of the Schedule to Limitation Act, 1963 and thus barred in law.

The High Court held the petition to be without merit. It referred to Section 12(1) of the Act which makes amply clear that in computing period of limitation for any suit/appeal/application, the date from which such period is to reckoned shall be excluded. In the present case, the amount was transferred on 16-03-2015 which day was to be excluded while computing the period of limitation. After so excluding, the suit was within 3 years and hence was well within time. Therefore, the petition was dismissed. [Brijesh Yadav v. Bijender Kumar Kaushik, 2018 SCC OnLine Del 13225, Order dated 19-12-2018]

Case BriefsHigh Courts

Gujarat High Court: A Single Judge Bench comprising of S.H. Vora, J. allowed the condonation of delay as the sufficient cause stands justified.

The petitioner has filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 350 days caused in filing the criminal appeal against the judgment passed in the POCSO Act.

The Court observed, the words “Sufficient cause for not making application within the period of limitation” should be applied in a reasonable and liberal manner depending upon the facts and circumstances of the case following which substantial justice shall be advanced when the delay has not been due to the negligence on the part of the applicant. In nutshell, the decisive factor for condonation of delay is not the length of delay but sufficiency and satisfactory explanation.

Thus there was nothing on record which could deprive substantial justice to the applicant by way of statutory appeal as the explanation for delay does not smack mala fide as a resultant the condonation was allowed. [Dineshbhai Rameshbhai Minama v. State of Gujarat, 2018 SCC OnLine Guj 2610, Order dated 01-10-2018]

Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of Dr A.K. Rath, J., dismissed a writ petition challenging the order passed by the Additional District Judge, whereby the Appellate Court had dismissed the application under Section 5 of the Limitation Act for condonation of delay. 

The petitioners were aggrieved by this order and their counsel Mr Prasanna Ku. Parhi, contended that the delay was justified and the petitioners were prevented by sufficient cause in not filing the appeal on time and the Appellate Court had dismissed the same on an untenable and unsupportable ground. 

The seminal question that hinged for consideration was that whether an order rejecting a memorandum of appeal or dismissing an appeal following rejection of an application under Section 5 of the Limitation Act for condonation of delay in preferring the appeal was a decree or order. 

The Court placing reliance on the case of Fakira Mishra v. Biswanath Mishra, 2015 SCC OnLine Ori 313, held that an appeal filed along with an application for condonation of delay in filing that appeal when dismissed on refusal to condone the delay is a decree within the meaning of Section 2(2) of the Code of Civil Procedure. [Jitendra Naik v. Radhyashyam Naik, 2018 SCC OnLine Ori 432, dated 10-12-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Prabhat Kumar Jha, J. while hearing a civil writ petition held that in an application for probate of will, cause of action accrues from the date when hindrance is put to legatee in the management of property bequeathed by will and not immediately after the death of propounder of will.

Petitioner’s case is that the respondent was given in adoption by his father to his father’s eldest brother. After the demise of petitioner’s father, respondent filed a probate case and thereafter petitioner filed a petition under Order VII Rule 11 (d) of CPC and Article 137 of the Limitation Act, 1963 which was dismissed by the lower court holding that respondent’s probate case was not barred as limitation would not start from the date of death of testator. Being aggrieved, the instant petition was filed.

The sole question for determination was as to whether filing of probate case three years after the death of testator was barred under Article 137 of the Limitation Act.

The Court observed that under Article 137 of Limitation Act, the period of limitation is three years from the date and the said period begins to run when the right to apply accrues. Relying on the dictum of  Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463 it was held that an application for probate of will is for the court’s permission to perform a legal duty created by a will and is a continuous right which can be exercised any time after the death of deceased, as long as the right to do so survives. As such, the probate case of respondent was maintainable.

In view of the above, the petition was dismissed.[Arun Kumar Agrawal v. Anil Agrawal, 2018 SCC OnLine Pat 2070, decided on 28-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J., dismissed a regular first appeal filed under Section 96 of the Code of Civil procedure, 1908 against the judgment of the trial court whereby appellant’s recovery suit was dismissed as barred by limitation.

The appellant issued advertisements in the newspaper for the weekly draws of lotteries for the State of Meghalaya. As per the statement of account maintained by the appellant/plaintiff, a sum of Rs 4, 28,256.56/- was due. Despite writing repeated letters to the respondent (alleged to be agent of the State), the payment due was not released. Hence, the subject recovery suit was filed. The respondent, inter alia, pleaded the suit to be barred by limitation. The trial court, vide the judgment impugned, dismissed the suit on the ground as mentioned. Aggrieved thereby, the appellant preferred the instant appeal.

The High Court perused the record and noted that all the bills on which the claim of the appellant was based were from 31 October 1984 to 30 April 1985. The subject suit was filed on 28 May 1988 and therefore if the bills were raised prior 28 May 1985, the claim of those bills would be barred by limitation. It was argued by the appellant that the suit was within limitation as a cash payment of Rs 50,000 was made by the respondent on 29 May 1985. The argument was rejected as the cash entry was without any date and that too only in the account maintained by the appellant and not in account maintained by the respondent. It was held that a cash payment simpliciter will not qualify for extension of limitation under Sections 18 and 19 of the Limitation Act, as it is not proved. Further, it was observed that the only other way in which the suit would have been within limitation was if it was based on an open, mutual and current account. Making reference to Supreme Court decisions in  Hindustan Forest Company v. Lal Chand, AIR 1959 SC 1349 and Kesharichand Jaisukhal v. Shillong Banking Corporation, AIR 1965 SC 1711, the High Court observed that under Article 1 of the Limitation Act, such an account exists only if there are shifting balances which was not the case herein. In view of the aforesaid, the judgment impugned was found to be free of error. The appeal was thus dismissed. [Continental Advertising (P) Ltd. v. Karan & Co.,2018 SCC OnLine Del 11921, dated 15-10-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Arijit Banerjee, J. disposed of a writ petition by granting payment of interest to a retired employee on the amount of delayed payment of pension.

The petitioner was retired in 2007 while working as a teacher in a higher secondary school. The first payment order was issued in 2007 itself. Under ROPA Rules, 2009 there was a revision of pensionary and gratuity amount payable to the petitioner which order was made in 2012. The arrear revised pension was disbursed in 2013. The petitioner claimed interest on delayed payment of revised pension.

The High Court, at the outset, observed that the Limitation Act in terms does not apply to writ petition. Furthermore, it is a settled law that a retired employee is entitled to some amount of interest on delayed payment of pension. In the present case, it was a bounden duty of the State to disburse the due date. If it failed to do so and released such amount after an unexplained delay, it was obliged to pay interest to the retired employee. In such view of the matter, the Court directed the Director of Pension, Provident Fund and Group Insurance to pay interest to the writ petitioner at the rate of 9% per annum on the arrear of revised pension calculated on and from 1 June 2009 till actual date of payment. The petition was disposed of in the terms above. [Purna Chandra Mondal v. State of W.B.,2018 SCC OnLine Cal 7366, dated 03-10-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A two-member bench comprising of Justice S.J. Mukhopadhaya, Chairperson and Justice Bansi Lal Bhat, Member (Judicial) dismissed an appeal filed against the order of the National Company Law Tribunal whereby the application under Section 7 of the Insolvency and Bankruptcy Code, 2016 preferred by the Financial Creditor – Punjab National Bank was admitted.

The appellant (Corporate Debtor) submitted, firstly, that the Bank acted neither in the terms of circular and guidelines issued by the Reserve Bank of India nor in the terms of Reserve Bank of India Act, 1934. Secondly, it was contended that the amount due was barred by limitation.

The Appellate Tribunal, on considering the submissions made by the appellant, was of the view that such submissions were untenable. The first submission was rejected holding that in view of admitted default by the appellant, such ground could not be accepted. In regard to the second submission, the Appellate Tribunal held that it was liable to be rejected as there was a continuous cause of action. Furthermore, even if it was accepted that the Limitation Act was applicable in the matter, in such case Article 137 of Part II of the Act would be applicable whereunder a three years’ period counted from the date when the right to apply accrued is applicable. In the instant matter, the right to apply under Section 7 of the Code accrued to the Bank only on 1-12-2016 when the I&B Code came into force; before that the Bank had no right to apply. Therefore, the Appellate Tribunal held, no interfere was called for to the order impugned. The appeal was dismissed sans merit. [Brijesh Kumar Agarwal v. Punjab National Bank, 2018 SCC OnLine NCLAT 305, dated 05-07-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of CJ Dipak Misra and Dr D.Y. Chandrachud, J. held that the election petition filed after the period of 30 days as mandated under Haryana Panchayati Raj Act, 1994 is barred by limitation.

The appellant was declared a winner in the elections for the post of Ward Councilor. The respondent filed an election petition under Section 176 of the Act challenging the said election. Thereafter, the appellant filed an application under Order 7 Rule 11 CPC for rejection of the petition on the ground that the said petition was not presented in person as required by Section 176. The respondent withdrew the petition. Subsequently, the respondent filed second election petition. Again, the appellant filed an application for rejection, this time on the ground that the petition was filed after the period of 30 days from the date of the election as provided under the said section, thus it was barred by limitation. The respondent filed an application under Section 5 read with Section 14 of the Limitation Act, submitting that the time spent between filing of the first petition and its withdrawal may be excluded while calculating the period of limitation. The trial court admitted the appellant’s application under Order 7 Rule 11 CPC. The appeal preferred by the respondent thereagainst was allowed by a District Judge. The appellant challenged the order of the  District Judge before the High Court which was dismissed vide order impugned. Aggrieved thus, the appellant filed the present appeal.

The Supreme Court perused Section 176 and also referred to Hukum Dev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133; Charan Lal Sahu v. Nandkishore Bhatt, (1973) 2 SCC 530 and Lachhman Das Arora v. Ganeshi Lal, (1999) 8 SCC 532. It was observed that the Haryana Panchayati Raj Act is a complete code for the presentation of election petitions. The statute mandates that election petition must be filed within a period of 30 days from the date of declaration of election results. The period cannot be extended. The provision of Section 14 of the Limitation Act stands excluded. The legislature having made a specific provision, any election petition which fails to comply with the same is liable to be rejected. Observing that the High Court failed to notice the binding judgments of the Supreme Court, the Court set aside the order impugned. It was held that the election petition filed by the respondent shall be dismissed. Accordingly, the appeal was allowed. [Suman Devi v. Manisha Devi,2018 SCC OnLine SC 1047, dated 21-08-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A civil petition was decided by a Single Judge Bench comprising of Ajay Mohan Goel, J., wherein the application of the appellant praying to condone the delay of 2376 days in filing the appeal was dismissed.

The ground which appellant took in order to justify such delay in filing the appeal was that she was wrongly informed by her counsel that the matter was still pending in the court and that she came to know that her case stood dismissed only six months prior to the filing of this petition.

The High Court was not convinced by the explanation given by the appellant for such delay. The Court observed it to be a routine excuse which is given in an application for condonation of delay. The Court further observed that principle of limitation envisages that in case a person is not diligent in pursuing his legal remedy, then after the limitation period, though the right survives but remedy goes. The Court held that the power under Section 5 of Limitation Act to condone delay is not to be exercised in a mechanical manner and is only to be exercised if Court is convinced that the applicant was not negligent in pursuing his legal remedy and proceedings could not be initiated for the reasons beyond the control of the party concerned. In the instant case, the Court was not satisfied with the averments made in the application and consequently, the application was dismissed. [Runa Devi v. Singhu Ram, 2018 SCC OnLine HP 248, order dated 15.3.2018]

Case BriefsSupreme Court

Supreme Court: Deciding the question as to whether Section 5 of the Limitation Act, 1963 can be invoked to condone the prescribed period of 30 days, under Section 30(1) of the Recovery of Debts and Bankruptcy Act, 1993 (RDB Act) for preferring an appeal before the Tribunal, against an order of the Recovery officer, the 3-judge bench of Ranjan Gogoi and AM Sapre and Navin Sinha, JJ held that the prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery officer cannot be condoned by application of Section 5 of the Limitation Act.

Explaining the scope of Section 5 of the Limitation Act, the Court said that it provides that the appeal or application, with the exception of Order XXI, CPC may be admitted after the prescribed period, if the applicant satisfies the court that he has sufficient cause for not preferring the application within time. Considering this, the Court said that the pre-requisite, therefore, is the pendency of a proceeding before a court. The proceedings under the Act being before a statutory Tribunal, it cannot be placed at par with proceedings before a court. It was said:

“The fact that the Tribunal may be vested with some of the powers as a Civil Court under the Code of Civil Procedure, regarding summoning and enforcing attendance of witnesses, discovery and production of the documents, receiving evidence on affidavits, issuing commission for the examination of witnesses or documents, reviewing its decisions etc. does not vest in it the status of a Court.”

Stating that RDB Act is a special law where the proceedings are before a statutory Tribunal, the bench said

“the scheme of the Act manifestly provides that the Legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The appellate tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only.”

It was explained that the exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. Hence, the application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 does not arise. [International Asset Reconstruction Company of India Ltd. v. Official Liquidator of Aldrich Pharmaceuticals Ltd., 2017 SCC OnLine SC 1245, decided on 24.10.2017]