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Corporation of Madras Vs. Vijayalakshmi Ammal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 26 of 1959
Judge
Reported inAIR1961Mad390; (1961)1MLJ226
ActsLimitation Act, 1908 - Sections 18, 19 and 29 - Schedule - Articles 56 and 120; Madras City Municipal Act - Sections 29(2)
AppellantCorporation of Madras
RespondentVijayalakshmi Ammal
Appellant AdvocateT. Chengalvarayan, Adv.
Respondent AdvocateT.R. Srinivasa Iyengar, Adv.
DispositionAppeal dismissed
Excerpt:
- - on appeals preferred by both the corporation as well as the defendant, in so tar as the decree of the trial court was against the one or the other, the learned additional judge of the city civil court agreed with the findings of the trial court and dismissed both the appeals......the limitation act runs : '29(1)............(2) where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore 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 to18, and section 22 shall apply only in so far as, andto the extent to which they are expressly excludedby such special or local law; and (b) the remaining provisions of this act shall not apply.''sri chengalvarayan argued that section 29(2) will not apply to the instant case because.....
Judgment:

Veeraswami, J.

1. This second appeal by the Corporation of Madras arises out of a suit which is instituted for recovery of a sum of Rs. 702-11-9 together with interest. The claim relates to the proportionate amount payable by the defendant to the Corporation in respect of a certain work done by the latter in metalling and lighting a private street in S. No. 94/2 in Mambalam, Madras. There is 1:0 dispute that the liability of the defendant arose under Section 218(1) (sic) of the Madras City Municipal Act, 1919. One of the defences was that the suit was barred by limitation, in view of Section 390-A of that Act.

2. The trial Court held that the suit was barred by limitation in so far as it related to the recovery of charges for improvements under Ex. A. 11 but that the claim in respect of expenses incurved for lighting except items 7 and 8 was in time. The trial Court decreed the suit on that basis. On appeals preferred by both the corporation as well as the defendant, in so tar as the decree of the trial court was against the one Or the other, the learned Additional Judge of the City Civil Court agreed with the findings of the trial Court and dismissed both the appeals. The aggrieved Corporation has come up to this court in second appeal.

3. The main question that was argued in second appeal was the question of limitation. There is no dispute that Section 390-A will govern the suit. That section provides that no suit shall be instituted, in respect of any sum due to the Corporation under the Act, after the expiration of a period of three years from the date on which a suit might first have been instituted. A suit might first have been instituted when the Corporation incurred the relative expenses.

That would be the point at which limitation would commence. It was so decided by a Division Bench of this court in In re Corporation of Madras, : AIR1954Mad944 . The expenses were incurred by the Corporation on October 19, 1948. The suit out of which the second appeal arises was instituted on June 26, 1953. The suit for recovery of the amount covered by Ex. A. 11, and items 7 and 8 under Ex, A. 14 would therefore, be barred by limitation,

4. But the contention of Sri Chengalvarayan, the learned counsel for the appellant, is that Ex. A. 48 dated October 25, 1950, contains an acknowledgment by the defendant of her liability and the claim was, therefore, saved from the bar of limitation. The question, therefore, is whether Section 19 of the Limitation. Act will apply to a case governed by Section 390-A of the Madras City Municipal Act:

5. Section 29(2) of the Limitation Act runs : '29(1)............

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefore 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 to18, and Section 22 shall apply only in so far as, andto the extent to which they are expressly excludedby such special or local law; and

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

'Sri Chengalvarayan argued that Section 29(2) will not apply to the instant case because the period of limitation prescribed in Section 390-A of the City Municipal Act is the same as prescribed for such a suit by the First Schedule of the Limitation Act. He contended that if only the period ot limitation prescribed by the special law was different from the period prescribed for a particular suit by the first schedule of the Limitation Act, the application of Section 19 of the Limitation Act would stand excluded.

The entire argument proceeded on the assumption that the period of limitation prescribed by the Limitation Act for a suit of this nature is the same as that prescribed by Section 390-A of the City Municipal Act. But this assumption in my opinion, appears to be incorrect. The article that can, if at all, be said prima facie to apply is Article 56. That Article governs a suit for the recovery of the price of work done by the plaintiff for the defendant at his request where no time has been fixed for payment.

There is no evidence in this case that the work in question was done at the request of the defendant. In fact, the liability arose by virtue of the provisions of Sub-section (2) of Section 218 or the City Municipal Act, and not on any other basis. If Article 58, therefore, is not applicable, as I think it docs not the only other Article left is Article 120, which provides for six years from the date when the right to sue accrues.

The period of limitation prescribed by Section 390-A is, therefore, different from the period prescribed by Article 120. Section 29(2) of the Limitation Act will, in the circumstances, be attracted. The result will be that by operation of Clause (b) of Sub-section (2) of Section 29, the application of Section 19 of the Limitation Act will stand expressly excluded. It will follow, therefore, that Ex. A. 48 cannot help the plaintiff Corporation as an acknowledgment of the defendant's liability. The suit which was instituted on June 26, 1953, was, therefore, barred by limitation; and the conclusion arrived by the courts below is correct.

The second appeal fails and is dismissed with costs. No leave.


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