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The Hope Mills Ltd. Vs. Vithaldas Pranjivandas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 39 of 1909 and Suit No. 655 of 1904
Judge
Reported in(1910)12BOMLR730
AppellantThe Hope Mills Ltd.
RespondentVithaldas Pranjivandas
DispositionAppeal dismissed
Excerpt:
.....act (vi of 1882), section 89- limitation acts (xv of 1877 mid ix of 1908), article 164- service of summons-companies registered under the indian companies act -ex parte decree-period of limitation to net aside ex parte. decrees-knowledge of the decree-general clauses act (x of 1897), section 6-acts of procedure-retrospective effect- construction of statute.;the service of summons on a company registered, under the indian companies act 1882, is regulated by section 89 of the act.;section 436 of the civil procedure code, 1882, does not apply to companies registered under the indian companies act, but to the more uncommon class of companies authorised to sue or to be sued in the name of an officer or trustee.;when a new enactment deals with rights of action, unless it is so expressed in the..........been duly served. section 436 does not apply to companies registered, as is the first defendant company, under the companies act, but to the more uncommon class of companies authorised to sue or to be sued in the name of an officer or trustee, for example, the comptoir national d'escompte de paris, which under the authority of act vii of 1890 may be sued in the name of its chief manager.3. it is clear that the service of the summons did not comply with the provisions of section 89 of the companies act, 1882. we therefore, agree with the 'learned judge that the summons was not duly served. it is, however, contended that the defendant company's application is too late. if it is governed by article 164 of the limitation act of 1877 it is in time having been made within thirty days from.....
Judgment:

Basil Scott, Kt., C.J.

1. On the 3rd September 1909 the plaintiffs applied for execution of an ex parte decree obtained by them against the first defendant Company on the 15th of November 1904. On the 20th September 1909 a rule was granted calling on the plaintiffs to show cause why the decree should not be set aside on the ground that the summons in this suit had not been duly served on the 1st defendant.

2. The learned Judge held that the service of summons on the defendant Company was regulated by Section 89 of the Companies Act 1882, and not by Section 436 of the Civil Procedure Code, 1882, and that the summons had not been duly served. Section 436 does not apply to companies registered, as is the first defendant Company, under the Companies Act, but to the more uncommon class of companies authorised to sue or to be sued in the name of an officer or trustee, for example, the Comptoir National D'escompte de Paris, which under the authority of Act VII of 1890 may be sued in the name of its Chief Manager.

3. It is clear that the service of the summons did not comply with the provisions of Section 89 of the Companies Act, 1882. We therefore, agree with the 'learned Judge that the summons was not duly served. It is, however, contended that the defendant Company's application is too late. If it is governed by Article 164 of the Limitation Act of 1877 it is in time having been made within thirty days from the date of execution of process for the enforcement of the judgment. It is, however, out of time if it is governed by the Limitation Act of 1908 not having been made within thirty days of the date when the defendant Company first had knowledge of the judgment.

4. It is argued for the defendant Company that although the interval of some months between the date of the passing of the Act of 1908 and the date of its coming into operation would permit of the application of the inference of retroactivity, illustrated by Towler v. Chatterton (1829) 6 Bing. 258, The Queen v. The Leeds and Bradford Railway Company (1852) 29 L.J.M.C. 193 and Wright v. Hale (1860) 30 L.J. Ex. 40, the defendant Company's position is saved by Section 6 of the General Clauses Act of 1897 which enacts that a repeal of an Act shall not, unless a different intention appears, affect any right accrued or liability incurred under any enactment repealed or any remedy in respect of such right or liability.

5. The answer to this argument is that the remedy in respect of the liability involved in the ex parte decree is given by the Civil Procedure Code, the Limitation Act merely regulates the time within which the remedy must be sought. In The Ydun [1829] P. 236 a similar argument to that of the defendant Company based upon the same words in the Interpretation Act, 1889,3.38, Sub-section 2 (c) in regard to the provision of the Public Authorities Protection Act, 1893, which enacts that certain actions must be commenced within six months of the act, neglect, or default complained of, was unsuccessful. The President said: ' It is clear that what must be taken to be an improvement in procedure is not to be considered as interference with a vested right of those who would have preferred the procedure to remain in its unreformed condition; and, further, inasmuch as the most aggravated case of interference possible under the Act in question is that of a person who, having had nearly five months in which to bring his action, has allotted to him almost a month longer in which to bring it, there appears to me no difficulty in considering that, with full consideration for the principle referred to, the legislature intended this Act to be, in the sense and to the extent I have mentioned, retrospective.' In appeal, A. L. Smith L. J. said: ' In my opinion, that point was correctly dealt with by the learned President in the Court below. The rule applicable to cases of this sort is well stated by Wilde B. in Wright v. Hale (1860) 6 H. & N. 227, namely, that when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.' Similarly, in Rex v. Chandra Dharma [1905] 2 K.B. 335, a statute, passed after the Interpretation Act extending the time within which criminal proceedings might be taken in respect of certain offences, was held to be retrospective.

6. We agree with the learned Judge that the application is barred by limitation and we dismiss the appeal with costs.


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