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A Shop Styled in the Name of Bakatram Nanuram by Its Owner Minalal Shadiram Vs. Kharsetji Jivajishet and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1904)ILR27Bom364
AppellantA Shop Styled in the Name of Bakatram Nanuram by Its Owner Minalal Shadiram
RespondentKharsetji Jivajishet and anr.
Excerpt:
limitation act(xv of 1877), schedule ii, article 91 - bond--suit to have the bond adjudged void--specific relief act (i of 1877), section 39--limitation. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground..........plaintiff seeks equitable relief under section 39 of the specific belief act and asks to have the bond adjudged void, and prays that the court may in its discretion so adjudge it, and order it to be delivered up and cancelled. that was his prayer upon which the parties went to trial.3. to such a case, we think, article 91 of the limitation act, schedule ii, applies. this is not a document which is said on the face of it to be void; it can only be adjudged void if the facts which the plaintiff asserts can be proved.4. for these reasons we think that the subordinate judge should have dismissed the claim with costs, and we accordingly how do so.5. in giving our decision on this point we, of course, must not be taken as expressing any opinion on the other points which ware decided by the.....
Judgment:

E.T. Candy, C.S.I., Acting C.J.

1. In this case we need only deal with the question of limitation. The Subordinate Judge held that there was no bar of limitation because if the plaintiff had been sued on the bond, he could raise the pleas which are the foundation of his present suit, There are no authorities for such a proposition, and the learned Counsel for the plaintiff before us did not support it. But he contended that though the main prayer of the plaint (that the bond should be set aside) might be barred, still he was entitled to a declaration that the bond was void, and that for such a claim the period of limitation would be six years.

2. We do not think that this contention is sound. The plaintiff seeks equitable relief under Section 39 of the Specific Belief Act and asks to have the bond adjudged void, and prays that the Court may in its discretion so adjudge it, and order it to be delivered up and cancelled. That was his prayer upon which the parties went to trial.

3. To such a case, we think, Article 91 of the Limitation Act, Schedule II, applies. This is not a document which is said on the face of it to be void; it can only be adjudged void if the facts which the plaintiff asserts can be proved.

4. For these reasons we think that the Subordinate Judge should have dismissed the claim with costs, and we accordingly how do so.

5. In giving our decision on this point we, of course, must not be taken as expressing any opinion on the other points which ware decided by the Subordinate Judge, nor as fee the question how far the plaintiff can raise the pleas which he did in this case in a suit brought on the bond.


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