Chockalinga Mudaliar vs Manivanna Pillai

Balasubrahmanyan, J.—This second appeal raises a point about limitation in regard to a suit for goods sold and delivered. The suit was filed

in the District Munsif''s Court, Pondicherry. It was dismissed as time barred under the Limitation Act, 1963 (Central Act. No. 36 of 1963). The

District Court, on appeal, took the same view. Before the District Court the plaintiff contended that the question of limitation in relation to his suit

was governed not by Central Act No. 36 of 1963, but by the French Civil Code. It was further contended that the suit was within time under that

Code. But, these contentions were rejected. The question in this second appeal is : which is the appropriate Limitation Law applicable to the suit?

Central Act 36 of 1963 or the French Civil Code ?

A few further facts may be mentioned. The plaintiff is a maligai merchant in Pondicherry. He based his suit claim against the defendant on a sale

bill dated 24th January 1967 in respect of goods sold by him on credit to the defendant. The suit was filed on 23rd June 1971. The plaintiff

pleaded that the suit was within time. He relied on an endorsement of part-payment dated 25th June 1968 stated to be in the defendant''s

handwriting. The defendant resisted the suit, pleading that it was time-barred. He denied the alleged endorsement of 25th June 1968. The Principal

District Munsif, Pondicherry, who tried the suit, upheld the defendant''s plea in bar and dismissed the suit. His findings as to the bar of limitation

were confirmed in appeal by the learned Principal District Judge, Pondicherry. Before him, for the first time, the plaintiff put forward the submission

that the question of limitation must be considered under the French Civil Code, and not under Central Act No. 36 of 1963. This contention was

also rejected. The learned District Judge held that the French Code stood repealed by Central Act 36 of 1963 and the Code could not be invoked

in respect of suits, like the present one, filed subsequent to 1st January 1964. The correctness of this decision is now challenged in this second

appeal.

Mr. Masilamani, appearing for the plaintiff, submitted that the provisions of French Civil Code relating to limitation of actions are still in force in

the territory of Pondicherry and they govern the present suit. He said that the Limitation Act, 1963 did not repeal the limitation provisions

contained in the French Civil Code. According to him, the only law repealed by that Act was the earlier Indian Limitation Act, 1908, and he

referred, in that connection, to S.32. He further submitted that far from repealing the limitation provisions enacted in the French Civil Code,

Parliament actually saved those provisions. He relied for this argument on S.29(2) of Central Act, 1963.

Mr. R.S. Venkatachari for the defendant contended that S.29(2) cannot be invoked to save the articles of limitation laid down in the French

Civil Code. He pointed out that the French law stood impliedly repealed the moment Central Act, No. 36 of 1963 came into force, which was on

1st January 1964. He said that the Parliamentary enactment extended to the whole of India. He said that, by that time, Pondicherry had already

become part of India even on 16th August 1962 under the Constitution Fourteenth Amendment. On this basis, he contended that for suits filed in

Pondicherry after 1st January 1964 the appropriate law in force relating to limitation would be the Limitation Act, 1963 and not the French Civil

Code.

The Limitation Act, 1963, as its preamble indicates, was enacted to consolidate and amend the law in this country relating to limitation of suits.

Under S.1(2), the Act extended to the whole of India. It seems to me, however, that from this provision alone I should not proceed to conclude

that the provisions of the Act are intended to apply without any savings or exceptions whatever. S.1(2) itself, for instance, expressly excludes

Jammu and Kashmir from the ambit of the Act. S.29(2) relied on by the plaintiff in this case affords another instance of a saving provision. So, Mr.

Venkatachari''s contention cannot be accepted in the way he asks me to do, by reverting my attention to S.1(2), which lays down, in a preliminary

fashion, the extent of the Act, without examining also the scope of the provisions enacted in S.29(2) of the Act.

S.29(2), so far as is relevant to the present discussion is in the following terms:

Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the

Schedule, the provisions of S.3 shall apply as if such period were the period prescribed by the Schedule...

The words of this section leave no doubt in my mind that Parliament intended to save the operation of special laws and local laws relating to

limitation. The marginal note to the section summarises the provision in one word, ""Savings"". But, the section does not stop with merely saving

these local and special laws. The text of the section goes much farther. The words indicate that the local or special law concerned shall clearly

prevail over the articles in the schedule. This overriding effect is given to the special and local laws by a familiar drafting device, namely, to treat the

periods of limitation peculiar to the local and special laws ""as if"" they had been prescribed in the schedule to this Act. Nor is this all. The Act goes

still further. It gathers unto its fold, and incorporates into its own statutory structure, the special and local laws referred to herein. This is done by

expressly enacting that ""S.3 of the Act shall apply"" to those special provisions. The sum-total of the consequences of S.29(2), if I may so put it, is

to preserve unity in diversity in our Laws of Limitation. The Act is do doubt an all-India enactment and purports to consolidate the law relating to

limitation. But, as I understand the statutory scheme, we now have as many schedules as there are local and special laws, in addition to the

schedule appended to the Act.

The reason behind this scheme is not far to seek. When Parliament passed the Limitation Act in 1963, it obviously did not intend, by a stroke of

its pen, to abolish local and special laws relating to limitation. Jammu and Kashmir was an obvious exception. There were also other territories in

the Union which for long had been having peculiar provisions for limitation. These were vestiges of distinct local history, as in the former

Portuguese possessions and French establishments in India. For some reason valid in its own eyes, the Legislature wished to allow the suitors in

those areas to continue to have the Laws of Limitation to which they were long accustomed. This must be the rationale behind the saving provision

in S.29(2). I cannot explain its presence otherwise in a consolidating enactment with an all-India bias.

If so much is granted, namely, that local and special laws are not only preserved under the Limitation Act, 1963, but even nurtured, if not

pampered, under its provisions, then the only further question for consideration in the present case would be whether the articles of limitation

contained in the French Civil Code can be brought within their comprehension. Mr. Venkatachari said, they cannot be. He said that the French

Civil Code is neither a special law nor even a local law within the meaning of S.29(2) of the Act.

The Act does not define what a special law is and what a local law is for the purposes of the section. Mr. Masilamani referred to a decision of

Maharajan, J., in Goodman and Company v. Thirunavukarasu 1976-2 M.L.J. 221=89 L.W. 444 and said that the learned Judge regarded the

French Civil Code as a local law within the meaning of the section. Mr. Venkatachari, however, submitted that this view of the learned Judge was

based on a concession made at the bar. It is not necessary to go into this aspect, for, the matter has been fully argued before me. But, even as a

matter of first impression, it seems to me that the articles of limitation laid down in the French Civil Code answer the description of ""local law"" in

S.29(2) of the Limitation Act, 1963. The expression ""local law"" in the section must in my opinion, be understood in the context of the Limitation

Act being an all-India enactment. In that context, any law having currency only in a limited area must be regarded as a local law. ""Local"" as used in

this section, has no technical meaning. It is not to be regarded as a term of art, unlike as in the case of the expression ""Local Authority"", which is

specially defined in the General Clauses Act to include a Port Trust. The French Civil Code is a local law because it applied, and was in force, in

the former French Establishment of Pondicherry. It was not in force anywhere else in India. After the de jure merger of Pondicherry in the Indian

Union on 16th August 1962, all the laws formerly in force in that territory were continued, by force of S.4(1) of the Pondicherry (Administration)

Act, 1962. This meant that the laws so preserved continued to remain local laws. The law of limitation in the French Civil Code has thus to be

regarded as a local law, because that is what its character was at the time when Parliament passed the Limitation Act, 1963.

Mr. Venkatachari argued that the French Civil Code applied universally, not only to French but to the French legal systems, all the world over,

and in that sense the French Civil Code in Pondicherry cannot be regarded as a local law. This argument tends to mistake the Pondicherry of today

with the French Empire of yesterday. Whatever might have been the position of Pondicherry as part of the ancient French polity, with the passing

of the Sixteenth Amendment it ceased to be part of Greater France in every sense. The French Civil Code and other laws which Pondicherry had,

may be, as part of a universal French legal system, in time became purely local laws in the context of the Indian legal system. I must, therefore,

reject the view that the words of S.29(2) do not apply to preserve in Pondicherry the Limitation Law imbedded in the French Civil Code. In view

of this conclusion of mine, I do not find it necessary to consider whether the French Civil Code is also a special law within the meaning of the same

section.

The position I have taken in this case is not wholly bereft of authority. I have earlier referred to the judgment of Maharajan, J. There are also

decisions which had arisen under parallel provisions relating to the Portuguese Settlements in India. Mr. Masilamani cited two cases decided by the

learned Judicial Commissioner, Goa. They are reported in J.A. de P. Bareto v. A.V. de Fonseca AIR 1969, 124, Goa and Cristina D'' Souza v.

Zurana Peretra AIR 1970, 28, Goa. In both the cases, the question of interpretation and application of S.29(2) of the Limitation Act, 1963 came

up for consideration in the context of Local Laws of limitation in force in Goa. It was held that the Portuguese Code must be regarded as local law

within the meaning of S.29(2). In the former case, the learned Judge observed that far from there being any repeal of the Portuguese Code by any

implication which can he spelt out from the provisions of the Limitation Act, 1963, the presence of S.29(2) showed that the said code was clearly

saved as a local law. His further observations deserve to be quoted verbatim:

It is true that breathing time of about 88 days was provided before the 1963 Act came into force in the territory but this action, by itself, does not

imply that the Portuguese Civil Code was repealed by necessary implication. As stated already Parliament loft the Portuguese Civil Cede

untouched when the 1963 Act was enacted. Parliament could have brought the Portuguese Civil Code within the sweep of the 1963 Act, but in its

legislative wisdom, and in order to avoid hardships to litigants governed by an entirely different system of law before the appointed day, Parliament

confined itself only to the repeal of the Limitation Act, 1908. I have no hesitation in agreeing with Mr. M. S. Uggoakar that the doctrine of implied

repeal is not attracted. The situation in this case at bar differs widely from the aforesaid cases reviewed.

I respectfully agree with the above observations.

The question that remains is whether the present suit is within time under the local law, namely the French Civil Code. Mr. Masilamani

submitted that the relevant provision relating to bar of limitation applicable to the present suit must be found in Article 2262 of the French Civil

Code. Article 2262 of the French Civil Code reads thus:

2262. All rights of action whether in rem or in personam are extinguished by prescription after thirty years. The person who sets up a title by

prescription for thirty years is not obliged to rely on any title ; nor can a plea alleging bad faith be set up.

The French Civil Code contains another article of limitation, viz., Article 2272. That Article, to the extent relevant, is as follows:--

2272. The following rights of action are extinguished after a year:--

......the right of action of merchants for goods they sell to private persons, not merchants......

Mr. Masilamani pointed out that Article 2272 is restricted in its application to suits filed by merchants for goods sold by them to non-

merchants. He, accordingly, urged that the period of limitation prescribed by that article can have no application to a suit filed by a merchant for

goods sold and delivered to another merchant. To such a suit, according to him, no other article of the Code applied, excepting the residuary

Article 2262 under which the period of limitation is 30 years.

There was some argument at the Bar as to whether the present suit can properly be regarded as one filed by a merchant against another

merchant. The plaint filed by the plaintiff did not, in so many words, aver that the defendant was a merchant. There was nothing also in the written

statement to show in what capacity the defendant purchased the goods from the plaintiff. There was, however, an admission by the defendant,

giving evidence at the trial as D.W.1, to the effect that he was a merchant carrying on business and in that capacity he had purchased the goods

from the plaintiff. On this basis, it was argued by the plaintiff''s learned counsel that Article 2262 of the French Civil Code applied to this case, and

the suit must be held to be within time, having been filed within 30 years of the transactions of sale. I did not hear Mr. Venkatachari contend that

Article 2262 did not apply to this case. It follows that the judgment and decree of the learned District Judge in appeal must be reversed. But I find

from the discussion in his judgment that the plaintiff''s appeal was dismissed only on the issue as to limitation. But apart from the plea in bar, the

defendant had contested the suit also on merits by pleading discharge. This issue was also tried by the learned District Munsif and a finding was

rendered therein in favour of the defendant and against the plaintiff. The learned District Judge had no occasion to deal with this issue, which has

been raised as a ground in the plaintiff''s appeal before him, since he had held against the plaintiff on the issue as to limitation. Now, that I have

reversed that finding and held that the suit is within time, it would be necessary for the appeal to be heard again by the learned District Judge on the

other matters raised by the plaintiff in his appeal against the judgment and decree of the trial Court. Accordingly, while setting aside the judgment

and decree of the learned District Judge in appeal, I direct him to take the appeal on file and hear the same on the other points which are at large.

Subject to this direction, the appeal is allowed. But, I make no order as to costs. There will also be refund of court fee to the appellant.