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The State of Punjab Vs. Wengers and Co. Etc. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 8-D of 1955
Judge
Reported inAIR1959P& H612
ActsLimitation Act, 1908 - Schedule - Articles 97 and 149
AppellantThe State of Punjab
RespondentWengers and Co. Etc.
Appellant Advocate R.S. Narula, Adv.
Respondent Advocate Bhagwat Dyal, Adv. for; Jindra Lal, Adv.
DispositionRevision allowed
Cases ReferredRamanathan Chettiar v. Kandappa Goundan
Excerpt:
.....orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow..........or december and a request was made for the return of rs. 1,000/-. the patiala and east punjab states union in which kalsia state was merged came into existence on 20-8-1948, and in consequence of this it was decided to abandon altogether the festivities in connection with the installation of the ruler. ultimately, after the firm had refused to refund the money, the present suit was instituted in the small cause court at delhi by the patiala and east punjab states union on 27-11-1953.3. the defendants, the firm messrs. wengers and co. and its proprietor mr. b. m. tandon, contested the suit on the ground that it was barred by time. this contention prevailed and the suit was dismissed by the order now challenged.4. the learned small cause court judge took the view that the suit was.....
Judgment:
ORDER

D. Falshaw, J.

1. The facts giving rise to this revision petition filed originally by the Patiala and East Punjab States Union, of which the place has now been taken by the State of Punjab since the merger last year, are as follows :

2. The Raja of Kalsia State was to be installed on the throne on 17-3-1948 and in that connection the Council of Administration of Kalsia State engaged the services of Messrs. Wengers and Co. of New Delhi for carrying out the necessary catering arrangements from the 16th to the 18th of March and an advance payment of Rs. 1,000/-was made on 8-3-1948. For some reason or other it was decided to postpone the installation and the Council of Administration informed Messrs. Wengers and Co. about this postponement by a letter dated 11-3-1948. Thereafter the firm was informed that the ceremony would have to be postponed till November or December and a request was made for the return of Rs. 1,000/-. The Patiala and East Punjab States Union in which Kalsia State was merged came into existence on 20-8-1948, and in consequence of this it was decided to abandon altogether the festivities in connection with the installation of the Ruler. Ultimately, after the firm had refused to refund the money, the present suit was instituted in the Small Cause Court at Delhi by the Patiala and East Punjab States Union on 27-11-1953.

3. The defendants, the firm Messrs. Wengers and Co. and its proprietor Mr. B. M. Tandon, contested the suit on the ground that it was barred by time. This contention prevailed and the suit was dismissed by the order now challenged.

4. The learned Small Cause Court Judge took the view that the suit was covered by Article 97 of the Schedule to the Limitation Act, which prescribes for a suit for money paid upon an existing consideration which afterwards fails a period of three years starting from the date of the failure. On the other hand the plaintiff relied on the provisions of Article 149 which prescribes a period of sixty years for a suit brought by the Union of India or the Government of any State, the starting point being the same as in the case of a suit brought by a private person.

5. The lower Court took the view that at the time when the limitation began to run Kalsia State was not an Indian territory and that once the time began to run it could not stop, the plaintiff Union being no more than the legal representative of Kalsia State.

6. In the ordinary way I do not think there is any doubt that Article 97 would he the appropriate Article, since the sum in suit was paid as an advance payment towards the cost of certain catering arrangements which were to be made by the defendants on a special occasion, and the occasion in question, after being postponed, was abandoned. It is, however, argued that there is no escape from the provisions of Article 149 which supersedes the ordinary provisions of Limitation Act as regards suits by Governments, whether Central Government or the Government of a State, and allows them 60 years from the ordinary starting point of limitation.

7. The argument advanced on behalf of the Defendants before me was on less simple lines than that advanced before and accepted by the lower Court. It is contended that the starting point of limitation in this case was the date on which the catering arrangements were to be carried out i.e. 18-3-1948. It is pointed out that it was not until the 1-4-1951 that the Limitation Act was made applicable to Part B States, of which the Patiala and East Punjab States Union was one, and by that date the period of three years had already expired.

It is thus contended that once the period of limitation had expired if could not be revived by subsequent legislation and on this point reliance was placed on the decision of Rajamannar C. J. and Balakrishna Ayyar J. in Ramanathan Chettiar v. Kandappa Goundan, AIR 1951 Mad 314 in which they held that if a right to sue had become barred by the provisions of the Limitation Act then in force on the date of the coming into force of a new Act, then such a barred right is not revived by the application of the new enactment.

8. There is no doubt that the Limitation Act became applicable to Part B States only on 1-4-1951 when the Part B States (Laws) Act (No. III) of 1951 came into force. The words 'State Government' had been substituted for 'Provincial Government' in Article 149 before that by the Adaptation Order of 1950, but it was only by the Act III of 19.51 that the words 'except part B States' were struck out of Section 1(2) and the definition of 'State', which had hitherto included only Part A and Part C States, was omitted altogether.

9. It would therefore seem that if in fact the cause of action arose on 18-3-1948 and if was only after 1-4-1951 that the Patiala and East Punjab States Union could bring a suit in which limitation was to be governed by Article 149 the suit was rightly dismissed as barred by time, since limitation under Article 97 had expired and could not be revived by a change in the legal status as regards limitation of the plaintiff Union. On theother hand, I am very much inclined to doubt whether the period of limitation in the circumstances of the present case could be deemed to have started on 18-3-1948.

No doubt the original catering arrangements were intended to be for the period from 16th to 18th of March but it seems to me doubtful whether the consideration could be said to have failed when at that stage the installation ceremony and the accompanying celebrations were merely postponed. The correspondence on the file shows that even in the middle of May the Council of Administration which had entered into the contract still contemplated holding the ceremony in November or December, and it was therefore some date after that the idea of holding the ceremony was abandoned.

It is not possible to determine exactly on what date this decision was taken but in my opinion the decision was really the failure of consideration and the starting point of limitation, and on whatever date the decision was taken, it was certainly long after 1-4-1948. On this view of the matter the period of limitation under Article 97 had not expired when the plaintiff Union became entitled to claim the 60 years' period of limitation under Article 149. It must therefore be held that the suit was wrongly dismissed as barred by time and I accordingly accept the revision petition and set aside the order of dismissal of the suit which will now be decided by the Small Cause Court Judge on merits. The parties would bear their own costs in this petition and they are directed to appear in the lower court on 6-1-1958.


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