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Judgment
Though the appeal is listed for orders on Interlocutory Application which is filed for early hearing, with the consent of the learned counsel appearing for both sides, it is heard finally.
This appeal is filed by the appellant-plaintiff assailing the order on IA.No.1, dated 15.3.2016 passed by XXIX Additional City Civil and Sessions Judge, Bangalore, in O.S.No.5254/2013.
For the purpose of convenience, the parties are referred to as they referred to before the Court below.
Plaintiff filed the suit for recovery of money of Rs.5,63,61,763/- with interest at the rate of 15% per annum against the defendants. After service of summons, defendant No.2 filed an application under Order VII Rule 11(d) of Civil Procedure Code (''CPC'' for short) by contending that the suit filed by the plaintiff is barred by limitation under Article 18 of the Limitation Act (''Act'' for short). The said application was contested by the plaintiff by filing his objections and after hearing both sides, the impugned order came to be passed. Assailing the same, the plaintiff is before this Court.
We have heard Mr.D.N.Nanjunda Reddy, learned Senior Counsel appearing on behalf of Ms.Sanjana Reddy, for the appellant, Mr.Shrikara P.K., learned advocate appearing on behalf of Mr.George Joseph, for respondent No.2 as well as Mr.Vasanth V. Fernandis, learned HCGP for respondent No.1 and perused the records.
Learned Senior Counsel Mr.Nanjunda Reddy appearing for the appellant has contended that the Court below without considering the contents of the application filed under Order VII Rule 11(d) of CPC and the objections filed by the plaintiff has passed the impugned order without assigning any valid reasons. The plaintiff- appellant herein completed the contract work and handed over the possession to the second defendant on 28.2.2009 and final bill was submitted on 3.2.2010 and subsequently defendant No.2 made the payment in respect of the bill, on 31.3.2010. Thereafter, as the defendant had not made the payment towards additional cost incurred by the plaintiff for completion of the work, he raised additional claim for the cost incurred in a sum of Rs.5,63,61,763/- on the very day. As the second defendant replied by rejecting the claim made by the plaintiff on 21.5.2010, legal notice under Section 80 of CPC came to be issued on 20.3.2013. Thereafter, within a period of three years, the suit has been instituted and as such the suit is not barred by limitation. This aspect is not properly considered and appreciated by the Court below. He has further contended that Article 18 of the Act is not applicable to the facts of the case on hand. The Court below has not properly interpreted the provisions of Section 15(2) of the Act. While computing the period of limitation, the period of legal notice taken under Section 80 of CPC ought to have been excluded and if that were to be taken into consideration, the period of limitation would include the statutory period for issuing the legal notice. This aspect has also not been properly considered and appreciated by the Court below. In order to substantiate the said contention, the learned Senior Counsel has relied upon the decision of the Apex Court in the case of Disha Constructions & others Vs. state of Goa & another, reported in (2012)1 SCC 690. It is his further contention that though the application was filed under Order VII Rule 11(d) of CPC by contending that the suit is barred by limitation under Article 18 of the Act, the Court below has not whispered a single word about Article 18 of the Act and it has calculated the period of limitation by ignoring the case of the plaintiff and has erroneously dismissed the suit. In the alternative, he has submitted that in order to consider all these aspects, the matter may be remanded back to the Court below to consider the same afresh and to dispose of in accordance with law. On these grounds, he prayed for allowing the appeal and requested to set aside the impugned order.
Whereas, the learned counsel appearing on behalf of respondent No.2 has vehemently argued and contended that though the Court below has not considered the aspect of Article 18 of the Act, even otherwise, if the dates of events are taken into consideration, the final bill was submitted by the plaintiff on 3.2.2010 and the legal notice was issued on 20.3.2013 and thereafter the suit was instituted on 19.7.2013. The suit ought to have been filed on or before 2.2.2013. But, the same has been instituted beyond a period of three years from the date of completion of work under the contract. Even if the period of legal notice is also excluded, then the suit is hopelessly barred by time. On that ground also, the suit is liable to be dismissed. He has further contended that the Court below has not considered Article 18 of the Act and as such he also fairly expresses that the matter requires to be remanded back for fresh consideration.
On the other hand, the learned HCGP supports the impugned order and prays for dismissal of the appeal.
The first and foremost contention raised by the learned Senior Counsel appearing for the appellant is that the Court below has not looked into the provisions of the Act. It ought to have excluded the period of legal notice and thereafter it could have arrived at a conclusion whether the suit is barred by time or not? Admittedly, in the instant case, the suit was instituted on 19.7.2013. Plaintiff completed the contract work and handed over the same on 28.2.2009. The final bill was drawn and submitted by the plaintiff on 3.2.2010. As the defendants did not pay the additional cost demanded by the plaintiff and as the same was denied on 21.5.2010, the legal notice came to be issued on 20.3.2013. The question as to whether the time taken for the purpose of issuance of notice has to be excluded or not is also one of the aspect which is raised during the course of arguments. Section 15 of the Act deals with the exclusion of time in certain other cases. For the purpose of brevity, we quote Section 15(2) of the Act, which reads as under:-
"Section 15. Exclusion of time in certain other cases-
(1) xxx xxx xxx
(2) 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 requirements 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.
Explanation - In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted."
On going through the aforesaid preposition of law, while computing the period of limitation, the period of
notice has to be mandatorily excluded, provided if the legal notice is issued within the limitation period for filing the suit. This preposition of law has been laid down by the Apex Court in Disha Constructions''s Case, (cited supra) at paragraph-16, which reads as under:-
"16. In our view, proper interpretation of Section 15(2) of the Act would be that in computing the period of limitation, the period of notice, provided notice is given within the limitation period, would be mandatorily excluded. That would mean a suit, for which period of limitation is three years, would be within limitation even if it is filed within two months after three years, provided notice has been given within the limitation period. In such a case, the period of notice cannot be counted concurrently with the period of limitation. If it is done, then the period of notice is not excluded. Any other interpretation would be contrary to the express mandate of Section 15(2) of the Act."
On going through the above dictum, it would indicate that the period of notice has to be excluded and that period has to be included while calculating three years of limitation provided under the law. This aspect has not been properly considered and appreciated by the Court below. In this behalf, there appears to be some force in the submission made by the learned Senior Counsel appearing for the appellant and hence, the same is acceptable. The Court below while passing the impugned order has taken the date of rejection of the request of the plaintiff by second defendant and from there it has calculated the three years period and even it has not excluded the statutory period for issuing the legal notice and has come to the conclusion that the suit is barred by limitation. Even the other contention of the defendants that the suit is barred by limitation under Article 18 of the Act has not been considered and appreciated by the Court below.
Though it is a specific contention that the Court below has not applied its mind to the aforesaid contention
and even though there is no such case made out either by defendants or by the plaintiff, the Court below has come to the said conclusion on its own. Hence, the said fact clearly indicates that there is no proper application of mind by the Court below on the contentions raised by the parties. Though the Court can consider the said fact of limitation, the Court below has not kept in view the contention of the parties. Under the facts and circumstances of the case, we are of the considered opinion that if the matter is remanded back to the Court below without expressing anything on merits of the case with a direction to the Court below to decide the matter afresh by providing opportunity to both sides, it would meet the ends of justice. Hence, we pass the following:-
Impugned order dated 15.3.2016 passed on I.A.No.I by XXIX Additional City Civil and Sessions Judge, Bangalore, in O.S.No.5254/2013 is set aside. The matter is remanded back to the Court below with a direction to
dispose of the Interlocutory Application afresh by giving full opportunity to both sides.
Since both the parties have appeared before this Court, without expecting any notice from the Court below, they shall appear before the Court below on 9.10.2017.
Appeal is allowed accordingly.