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Madura Co. Private Ltd. Vs. A. Thangal Junju Musaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberA.S. 720 of 1960
Judge
Reported inAIR1964Ker190
ActsCarriage of Goods by Sea Act, 1925 - Article 3, Rule 6; LImitation Act, 1908 - Sections 4 and 10
AppellantMadura Co. Private Ltd.
RespondentA. Thangal Junju Musaliar and anr.
Appellant Advocate P.K. Kurian and; K. Sukumaran, Advs.
Respondent Advocate V.K.K. Menon and; C.S. Padmanabha Iyer, Advs. for 1st Respondent,;
Cases ReferredMuhammad Jan v. Shiam Lal
Excerpt:
.....and it was held that the transmission of the record on wednesday was a transmission within the period required by the act, although the period had expired. but the amount was paid on the first opening day, and this court, in conformity with the rules laid down in (1867) 2 qb 410, held that the payment was good. ' 12. counsel for the appellant submitted that in case we came to the conclusion that the plaint was filed within time -as we have done -the case should be remanded to the court below and an opportunity given to produce clear and dependable translations of the documents in the portugese language and to adduce further evidence, relevant and essential for a proper disposal of the case. we are satisfied that the interest of justice demands that tha prayer should be granted and..........the indian limitation act, 1908, provides that, 'where the period of limitation prescribed for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the court re-opens,' and section 10 of the general clauses act, 1897:'where, by any central act or regulation made after the commencement of this act, any act or proceeding is directed or allowed to be, done or taken in any court or office on a certain day or within a prescribed period, then, if trie court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is.....
Judgment:

M.S. Menon, C.J.

1. This is an appeal from the decision of the Subordinate Court of Quilon in O. S. No. 130 of 1957. The appellant -- the Madura Company Private Limited, agents of the British India Steam Navigation Company Limited was the 2nd defendant in that suit.

2. The plaintiff -- the 1st respondent before us -- sought damages for the short delivery of 354 bags of cashewnuts out of a shipment of 4500 bags from In-hambane to Cochin with transhipment at Lourenco-Marques. The bill of lading concerned is Ext. D-5. Clause 16 of the 25 clauses printed in the bill of lading reads as follows:

'Law applicable. The contract evidenced by this Bill of Lading shall be gowned by the Laws of England and in accepting this Bill of Lading the shippers and consignees expressly accept and agree to all its stipula-tions, exceptions and conditions whether written, stamped or printed as fully as if signed by him or them.'

3. The English Law relating to bills of lading is embodied in the Carriege of Goods by Sea Act, 1924. The third paragraph of Rule 6 of Article Ill in that Act --corresponding to the third paragraph of Rule 6 of Article Ill in the Indian Carriage of Goods by Sea Act, 1925 -- provides that

'in any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.'

4. The suit was originally instituted as O. S. No. 59 of 1956 in the District Court of Quilon on 28-5-1956. It was subsequently transferred to the Subordinate Court of Quilon and renumbered as O. S. No. 130 of 1957. It is common ground that the period of one year within which the suit should have been instituted expired during the summer recess and that the suit was as a matter of fact instituted on the date on which the District Court of Quilon reopened attar the said recess.

5. Section 4 of the Indian Limitation Act, 1908, provides that, 'where the period of Limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens,' and Section 10 of the General Clauses Act, 1897:

'Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be, done or taken in any court or office on a certain day or within a prescribed period, then, if trie court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open''.

It is not disputed that neither of the sections will in terms apply as the period of one year with which we are concerned is not a period prescribed by the Indian Limitation Act, 1908, or any other enactment of this country but is only a contractual term introduced by reference to a provision of the (English) Carriage of Goods by Sea Act, 1924.

6. The only question, therefore, is whether the principle embodied in those sections can salvage the plaint in this case. That principle is summed up in the maxims: lex non cogit ad impossibilia and actus curiae neminem gravabit. The former maxim says that the law does not compel a man to do that which he cannot possibly perform; and the latter that an act of the court shall prejudice no man.

7. We have come to the conclusion that the principle above-mentioned -- a rule of 'elementary justice' as stated in Raja Pande v. Sheopujan Pande, AIR 1942 All 429 -- will sustain the contention of the 1st respondent that the plaint he filed on 28-5-1956 was a plaint filed within time. Mayor v. Harding, (1867) 2 QB 410 is a case in point. In that case the appellant had applied to justices to state a case under the Summary jurisdiction Act, 1857. He received the case from them on Good Friday, and transmitted it to the proper court on the following Wednesday. It was held that he had complied sufficiently with the requirement of the Act directing him to transmit the case within three days after receiving it as it was Impossible for him to transmit the case earlier than he did because of the closure of the offices of the court from Friday till Wednesday. Mellor, J., dealt with the matter as follows:

'Here it was impossible for the appellant to Iodge his case within three days after he received it. As regards the conduct of the parties themselves, it is a condition precedent. But this term is sometimes used rather loosely. I think it cannot be considered strictly a condition precedent where it is impossible of performance in consequence of the offices of the court being closed, and there being no one to receive the case. Tha appellant lodged the case on Wednesday, that is, he did all that it was practicable for him to do. I think we should strain the statute, if we gave it the construction contended for by Mr. McMohan, which might be productive of very inconvenient results. This does not interfere with the principle that the parties themselves cannot extend the time by their own acts. Here all that was possible was done and I think that is sufficient.'

8. According to counsel for the appellant what we have before us is a condition precedent; there was an extinction of the right; and he cited in support of his contention East and West Steamship Co. Madras v. S. K. Ramalingam Chettiar, AIR 1960 SC 1058. That decision has nothing to do with a case like this where neither the right nor the remedy can be considered as extinguished because the non-filing of tha suit stemmed not from any act or omission of the appellant but from the fact that the court was in recess; and all that he could do, namely, the filing of the plaint on the date on which the court reopened, was done by him.

9. Halsbury in dealing with acts which have to be done, not by the party only, but by the court or by the party in conjunction with the court, says:

'In such cases the act may, when the last day limited for the performance of it happens to be a day when the court or its office is closed, be done on the next practicable day.'

The extract is from the 3rd Edition, Volume 37, Page 98. The corresponding passage from the 1st Edition was quoted and followed in Fateh Khan v. Chhajju, AIR 1931. Lah 386.

10. In Shooshee Bhusan Budro v. Gobind Chunder, ILR 18 Cat 231 the Calcutta High Court said:

'The question that arises for decision is, whether when a fixed period is given to do a certain act, and the person bound to perform it is, from no act of his own, but from some act or order of the Court, prevented from carrying it out, he gets the advantage of the next open day. The same point has been the subject of frequent discussion both at home and here. In the case of (1867) 2 QB 410 the same question arose. The courts were closed from Good Friday until the following Wednesday, and it was held that the transmission of the record on Wednesday was a transmission within the period required by the Act, although the period had expired. That case was followed in the case of Waterton v. Baker, (1868) 3 QB 173 and this has since been considered as the leading case in regard to these questions. The broad principle there laid down is that although the parties themselves cannot extend the time for doing an act in court, yet if the delay is caused not by any act of their own, but by some act of the Court itself --such as the fact of the court being closed -- they are entitled to do the act on the first opening day. This, then, is the ganeral principle; and it has been followed in this court. In the case of Hossein Alli v. Donzelle, ILR 5 Cal 906 a tenant was sued under Act VIII of 1869, and a decree obtained against him in the terms of Section 52 of that Act, which provides that if the amount of arrears, interest and costs be paid within 15 days from the date of the decree, execution shall be stayed. Owing to the court being closed it was impossible to carry out the express terms of the Act; but the amount was paid on the first opening day, and this Court, in conformity with the rules laid down in (1867) 2 QB 410, held that the payment was good. This decision was followed by the Calcutta High Court in Peary Mohun Aich v. Ananda Charan Biswas, ILR 18 Cal 631. The court said:

'Where the parties are prevented from doing a thing in court on a particular day, not by any act of their own, but by the act of the court itself, they are entitled to do it at the first subsequent opportunity.'

11. The two Calcutta decisions were cited with ap-proval in Sambasiva Chari v. Ramasami Reddi, ILR 22 Mad 179. The significance of the Madras case, as stated in Muhammad Jan v. Shiam Lal, AIR 1924 All 218

'lies in the fact that the Hon'ble Judges repelled contentions based upon the statutory provisions of the Indian Limitation Act and of the General Clauses Act; but nevertheless held that there is a generally recognised principle of law under which parties who are prevented from doing a thing in court on a particular day,not by any act of their own, but by the court itself, are entitled to do it at the first subsequent opportunity.'

12. Counsel for the appellant submitted that in case we came to the conclusion that the plaint was filed within time -- as we have done -- the case should be remanded to the court below and an opportunity given to produce clear and dependable translations of the documents in the Portugese language and to adduce further evidence, relevant and essential for a proper disposal of the case. We are satisfied that the interest of justice demands that tha prayer should be granted and direct: .

(1) that the decree should be reversed and the case remanded for fresh disposal after giving tha parties an opportunity to adduce such further evidence as is relevant, including the proof of clear and dependable, translations of the documents in the Portugese language;

(2) that one half of the costs of the 1st respondent in this appeal should be paid to him by the appellant irrespective of the result of the further proceedings in the case:

(3) that the appellant and the 2nd respondent should tear their costs in this appeal; and

(4) that all the costs in the trial court should becosts in the cause.

13. Judgment accordingly. Refund the court-feepaid on the memorandum of appeal to counsel for theappellant.


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