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Trustees of the Port of Madras Vs. Mettur Chemical and Industries Ltd., Salem - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 104 of 1963
Judge
Reported inAIR1967Mad102
ActsMadras Port Trust Act, 1905 - Sections 110; Indian Limitation Act, 1908 - Sections 15(2) and 29(2)
AppellantTrustees of the Port of Madras
RespondentMettur Chemical and Industries Ltd., Salem
Cases ReferredVidyachardn v. Khubchand
Excerpt:
.....which had to be given in accordance with the requirements of any enactment while computing the period of limitation prescribed for any suit.; on the question raised as to the applicability or otherwise of section 15 (2), of the limitation act,; held the party's right of suit in this case was under the general law, outside the act and by section 110, only a limitation was placed on the period within which the suit should be filed. it was not the act which conferred the right of suit. but for the specific provision, the respondents would be governed by the provisions of the indian limitation act. the respondents would be entitled to rely on section 29 (2) of the limitation act and the contention of the petitioners that section 110 of the madras port trust act provided a complete code..........which has to be given in accordance with the requirements of any enactment while computing the period of limitation prescribed for any suit. there can be no question that if the plaintiffs can exclude this period, the suit will be within time. for taking the benefit of section 15(2), the learned counsel for the plaintiffs relies on section 29(2) of the indian limitation act. section 29(2) provides that:where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any.....
Judgment:
1. This revision has been preferred by the Trustees of the Port of Madras, defendants in a suit for the recovery of damages for short delivery of goods. It is a finding of the Court of Small Causes, Madras, not open to challenge in revision, that the goods had been landed and the defendants are liable in damages for the sum of Rs. 940 claimed.

2. The learned Counsel Mr. V.V. Raghavan appearing for the petitioners contends that the suit should not have been entertained at all by the Court below as it was barred under Section 110 of the Madras Port Trust Act (II of 1905). The plaintiffs had been given the C certificate on 2nd July, 1958, and on that date, the cause of action for the suit arose. The suit has been actually filed on 22nd January, 1959. Section 110 of the Madras Port Trust Act provides:

No suit or other proceeding shall be commenced against any person for anything done, or purporting to have been done, in pursuance of this Act without giving to such person one month's previous notice in writing of the intended suit or other proceeding, and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding.

3. Admittedly, the notice required under the first part of Section 110 has been given in this case. But what the learned Counsel for the defendants contends is that the suit must be filed within six months of the accrual of the cause of action and the language of Section 110 is emphatic that no suit shall be filed afterwards.

4. The plaintiffs seek to get over this bar pleaded by relying on Section 15(2) of the Indian Limitation Act, 1908, which enables plaintiffs to exclude the period of any notice which has to be given in accordance with the requirements of any enactment while computing the period of limitation prescribed for any suit. There can be no question that if the plaintiffs can exclude this period, the suit will be within time. For taking the benefit of Section 15(2), the learned Counsel for the plaintiffs relies on Section 29(2) of the Indian Limitation Act. Section 29(2) provides that:

Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of Section 3 shall apply as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-

(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply....

5. The first contention of the learned Counsel for the petitioners is that Section 110 of the Port Trust Act by itself provides a complete code and it is not open to the plaintiffs to rely on Section 29 of the Limitation Act to seek the benefit of Section 15 of the Act to exclude the one month period of notice. The learned Counsel lays considerable emphasis on the language of Section 110 that the suit shall not be filed after six months from the accrual of the cause of action. In fact, the contention is that the right of suit is given under certain conditions and this period of six months must be taken as a condition for such a suit. This contention to begin with I am unable to agree. The party's right of suit in this case is under the general law, outside the Act and by Section 110, only a limitation is placed on the period within which the suit should be filed. It is not the Act that confers the rights of suit. But for the specific provision, the plaintiffs would be governed by the provisions of the Indian Limitation Act. In my view, the plaintiffs would be entitled to rely on Section 29(2) of the Act and I am unable to agree with the contention of the learned Counsel that Section 110 provides a complete code itself both in respect of the substantive law as well as the procedural law. It even does not purport to be one.

6. Learned Counsel next contends that it must be considered on the language of Section 11 o that the applicability of Section 15 of the Indian Limitation Act is expressly excluded. Learned Counsel submits that on the emphatic language (nor after six months) it is a compelling inference that the suit must be filed within six months and that there can be no extension of the period. It is pointed out that Section 110 does not say that the suit must be filed within six months. It goes further and says that it shall not be filed after six months. But the question for consideration is whether in the circumstances, it can be said that the applicability of Section 15(2) is expressly excluded in the language of the section. In my view, a particular section can be considered to be expressly excluded only if there are specific words to the effect excluding the applicability of the section. The language and the meaning of the words expressly excluded in Section 15(2) cannot be whittled down. However imperative the time-limit may be under Section 110, it is still only inferentially or by implication, it may be necessary implication, one has to say that Section 15(2) of the Limitation Act is excluded, and an outer limit fixed.

7. In Sati Prasad Garga v. Gobinda Chandra Shee (1928) I.L.R. 56 Cal. 805, Cuming, J., observes at page 810:

By the expression 'expressly', I think, it is meant that express reference is made to the specific section in the Act; and that, unless such reference is made to the sections and by that reference they are expressly excluded, then they would apply.

8. Language similar to, if not more emphatic than the language employed in Section 110 has been the subject of consideration in several cases. In Chhaganlal v. Thand Municipality A.I.R. 1932 Bom. 259, Section 167 of the Bombay District Municipal Act came up for consideration. There also, there was a provision for one month's previous notice and the section provided that the suit shall not be commenced after six months from the date of the act complained of. The learned Judges held that if this language excludes the provisions of the Limitation Act, it excluded them by implication only and not expressly. They followed the decision of the High Court in Rewachand v. Karachi Municipality A.I.R. 1930 Sind. 93, on the identical question.

9. Mr. V.V. Raghavan, learned Counsel for the respondents, placed before me the decision of the Sind High Court reported in Rewachand v. Karachi Municipality A.I.R. 1925 Sind. 322, where the single Judge held with reference to Section 167 itself that the section in plain and unambiguous terms prevented the claimant from commencing his suit after six months from the date of act complained of, and thereby expressly excluded the time being extended, under Section 15, Clause 2 of the Limitation Act. But this case was reversed on appeal by the decision in Rewachand V. Karachi Municipality A.I.R. 1930 Sind. 93, earlier cited followed by the Bombay High Court in Chhaganlal v. Thand Municipality A.I.R. 1932 Bom. 259.

10. The Calcutta High Court also taken a similar view in Patna Municipality v. Nirddo Sundari A.I.R. 1942 Cal. 544, 545. The language to be construed there was within six months next after the accrual of the cause of action and not afterwards in the Bengal Municipal Act, certainly more emphatic than the language in Section 110 of the Port Trust Act. There also, there was a period of one month's notice provided and the plaintiff sought to deduct the period of notice. The contention was strongly urged there, that no effect could be given to the words and not afterwards if exclusion was granted of the notice period. After observing that there was a good deal of force in the contention, Biswas, J., observed:

It may well be that the Legislature by adding other words 'and not afterwards' did intend to exclude the applicability of those provisions of the Limitation Act which would operate to extend time in various contingencies. Unfortunately, however, if that was the intention of the Legislature, they failed to carry it out by using appropriate language for that purpose. The language they used 'and not afterwards', might possibly operate in the way intended, but by reason of the terms used in Section 29(2)(a), Limitation Act, I think it fell short of what was thereby required. The words 'expressly excluded' mean what they may. In order that the exclusion may be express, I think that the particular sections of the Limitation Act which are intended to be excluded must be specifically indicated by the special or local law in question. So far as the words, 'and not afterwards' are concerned, the utmost that can be said is that the exclusion of these sections of the Limitation Act may be easily spelt out therefrom, but, in my opinion they will not amount to an express exclusion.

11. Reference in this connection may also be made to a decision of the Supreme Court in Vidyachardn v. Khubchand , as to the scope of Section 29(2) of the Limitation Act in reference to Section 116-A of the Representation of the People Act. The learned Judge Subba Rao, J., observes at page 1112:

The contention, is that Sub-section (3) of Section 116-A of the Act not only provides a period of limitation for such an appeal, but also the circumstances under which the delay can be excused, indicating thereby that the general provisions of the Limitation Act are excluded. There are two answers to this argument. Firstly, Section 29(2)(a) of the Limitation Act speaks of express exclusion but there is no express exclusion in Sub-section (3) of Section 116-A of the Act....

12. In my view, Section 110 only provides a period of limitation different from that indicated under the Indian Limitation Act and it will be open to the plaintiffs in the absence of express exclusion of the applicability of Section 15(2) of the Limitation Act to rely upon the provisions of Section 15(2) of the Indian Limitation Act in computing the period. Thus viewed, the suit is within time.

13. In the result the revision fails and is dismissed with costs.


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