TMI Blog1983 (10) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... led on 14th of April 1971. In the plaint it had been specifically mentioned by the plaintiff that during the period from 19th April 1967 to 31st March 1968 the plaintiff had sold to the defendant flooring tiles and like material totally worth ₹ 27.521.54 inclusive of a sum of ₹ 350 towards the transport charges for the same. After crediting to the defendant's account a total sum of ₹ 19,000 comprising, among others, of a payment of ₹ 5,000 made on 15th of April 1968, the defendant was said to be liable in the sum of ₹ 8,521. Inclusive of the interest up to the filing of the suit, the claim in the suit was to the tune of ₹ 10.032. A deecreee for the principal sum of ₹ 8.521 was prayed for along with interest on the same. 3. This suit was resisted by the defendant by contending that the facts were not admitted. In paragraph 2 of the written staterment it was contended on behalf of the defendant that the value of the good mentioned by the plaintiff was not admitted. However, the defendant specifically mentioned as follows:__ It is admitted that the defendants paid on account of the said supply the total amount of ₹ 19,000/-. In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Code would apply to suit of the type in the present case. Thereafter First Civil Appreal No 15 of 1976. Which had been kept for final, hearing and disposal pending the receipt of the finding of the trial Court on the question of limitation. Was taken up for final hearing by Rege J.. who by his judgment and order dated 23rd of December 1982 confirmed the finding of the learned trial Judge on the question of limitation. On other questionsthe learned Judicial Commissioner had already concurred with the findings given by the learned trial Judge. The appeal therefore, had necessarily to be dismissed. This was done by Rege J.by his aforesaid judgment. It is againt this judgment that the present letters Patent judgment that the present letters Patent appeal has been preferred by the original defendant. 7. Mr. Kolwalkar, the learned advocate appearing for the respondent plaintiff. Has taken a preliminary objection to the maintainability of the present Letters Patent Appeal. According to Mr. Kolwalkar. This Letter Patent Appeal is not maintainable because when the suit was originally filed in the year 1971 there was only one appeal allowed to the parties to the suit. He invited our att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice Rege. therefore, delivered the judgment in appeal, naturally he delivered that judgment as a Judge of the Bombay High court. In view of the provisions contained in subsection (2) of section 7 of the Extension of Jurisdiction Act of 1981, that judgment has to be regarded as a judgment passed by a single Judge of this Court under Clause 15 of the Letters Patent. The present Letters Patent Appeal therefore. Is maintainable. 10. We have already breifiy mentioned the facts leading to the present litigation. The cause of action leading to the suit was non-payment of the amount due from the defendant to the plaintiff on account of goods supplied by the plaintiff to the defendant. The question is whether Article 14 in the Schedule to the Limitation Act applies or the provisions relating to the period of limitation in Artiocle 535 of the Portuguese Civil Code applies to the present case. This argument has arisen because of the decision of the Supreme Court in Justinion's case (supra) before we proceed to discuss the argument advanced by the respective claims. it would be advisable to breifly refer to the legislative history of this Union Territory. 11. It is now a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he liabilities couldbe extinguished. 12. The Portuguese Civil Code continued in this Union Territory by virtue of Section 5 contained in the Goa, Daman and Diu (Administration) Act. 1962. This provision provided that the existing laws will continue to be in force in this Union Territory until amended or repealed by a competent legislautre or other competent authroity. This Act, namely the Administration Act of 1962 actually replaced an earlier ordinance which has been promulgated on 5th of Mav 1962. 13. We have already made a reference to Regulation No. 12 of 1962 and the fact that it provided for the extension of certain laws mentioned in the Schedule to that regulation to this Union Territory. We have also mentioned that the laws were to come into force on such dates which would be fixed by the Lietutenant Glvernor of the Union Territory. We may mention that the Negotiable Instruments Act. Being Act 26 of 1881. Was mentioned in the Schedule to Regulation No. 12 of 1962. By a notification issued by the Lieutenant-Governor this Act was brought into forc in this Union Territory with effect from 1st of December 1965. We may now briefly refer to another negulation being Goa. Dam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1965. That suit was for damages for malicious prosecution. In the portuguese Civil Code, Art. 2361 provided that anyone who offends or violates rights of another person is compelled to indeminify the person offended for all damages caused to him. The cause of action, therefore, in that suit for damages for malicious prosecution arose on 6th of April 1960 on which day the order of acquittal passed on 6th of April 1960. The plaintiff thereafter filed a suit on 25th of November 1965. That suit was nor damages for malicikous prosecution. In the protuguese Civil Code, Art. 2361 provided that anyone who offends or violates rights of another person is compelled to indeminify the person offended for all damges caused to him. The cause of action, therefore, in that suit for damges for malicious prosecution arose on 6th of April 1960 on which day the order of acquittal had been passed in favor of the plaintiff. The question of the period beyond which a suit could not be filed was agitated in tht suit. The rival claimants. Were Art. 535 of the Portugues Civil Code and Art. 74 of the Limitation Act. It had been contended by the defendant that Art. 74 in the Schedule to the Limitation Act appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question before the Supreme Court was whether the provisions contained in the portuguese Civil Code relating to the period of limitation were saved by Sec. 29(2) of the Limitation Act. 1963, the latter provision states that where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed by the Schedule. The provisions of S. 3 of the Limitation Act. 1963 shall apply as if such period were the period prescribed by the Schedule. Sec. 3 of the Limitation Act imposes a bar on suits, among other. Instituted beyond the period of limitatikon mentioned in the Schedule to the Act. The Supreme Court has laid down that the periods provided for in the Portuguese Civil Code were local law within the meaning of Sec. 29(2) of the Limitation Act and therefore they were saved by the said provision and continued to be in force. The Supreme Court said:-- Now there is only one general law of limitation for the entier country and it is the Limitation Act. 1963. All other laws prescribing periods of limitation are either special or local laws. They are special laws if they prescribe periods of limitation for specified cases. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal shall not be entertained by the High Court after the expiry of sixty days from the date of the order of acquittal. This provision relating to the period within which an aplication for the grant of special leave to appeal had to be fifed wa sheld to be a special law by the Supreme Court in Kaushalya Rani v. v. Gopal Singh. which was approvingly referred to by the Supreme Court in Justiniano's case. The provision contained in Section 417 (4) applied to an appeal which was to be preferred under the provisions of the Criminal Procedure code itself. In that sense it was a special law. A special law thereforoe seems to be that law which provides for a period of limitation for a right arising under that law itself. 21. If, therefore, a cause of action arises outside the provisions of the Portuguese Civil Code, a suit based upon that cause of action naturally could not be governed by the provisions relnting to theperiod of limitation contained in the Portuguese Civil Code. In Ganexama Bicu Naik Valingonkar v. Joan Manual Dias. (Fisrt Civil Appeal No. 27 of 1975 decided on 24/30 June 1983) Couto J. noticed such a possibility arising . In that case a gift deed was sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. We are not unaware that this question did not arise before the Supreme Court while deciding Justiniano's case . The question in fact, could not have arisen because the cause of action in both the suits in that case had arisen under the Portuguese Civil Code. Naturally the period of limitation provided in the Portuguese Civil Code was made applicable despite the fact that the Limitation provided in the Portuguese Civil Code , Naturally the period of limitation provided in the Portuguese Civil code was made applicable despite the fact that the Limitation Act had come into force in were filed. The two civil suits before the Supreme Court covered by the judgment in Justiniano's case had been earlier decided by the learned Judicial Commissioner of this Union Territory. The facts can be called after reading the judgment of the learned Judicial Commissioner reported in Justiniano Augusto Dc P Barretto v. Antonio vicente DaFornseca, AIR 1969 Goa 124. In a later judgment delivered on 18th August 1983 in Costs Company Private Limited v. Metal Box Company of India Limited. (First Civill Appeal No. 85 of 1979) Couto J. distinguished his earlier judgment in Ganexama Bicu naik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same to the view which the learned Judge has expressd in costs Company's case. It is true that the learned Judge has correctly shown the distinction between the facts of the two cases but that distinction,in our opinion, should not make any difference to the law which, according to us is correct as per the discussion in the earlier part of this judgment. Actually an extension of the view expressed by Couto J. in Ganexama Bicu Naik' s case would necessarily be the same which we have adopted. In other words, once the propvisions in the Portuguese Civil Code dealing with the substantive rights and liabilities stand repealed as a result of the extension of corresponding Indian statues to thisUnion Territory, the periods of limitation. If any, provided in the Portuguese Civil Code in respect of those rights and liabilities will cease to apply to any suits for which the causes of action arose outside the port. We may now summarise our clusions in this regard. Provisions in the portuguese Civil Code or other Codes in force in Union Territory realting to the of limitation are local laws within the meaning of Sec. 29(2) of the Indian Limitation Act. 1963 as pointed out by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting of, or in a writing singed by, the person making the payment. In the instant case. Exhibit 33. Which is on record, shows that a payment of ₹ 5,000 was made by the defendant on 15th April 1968. That payment was acknowledtged by Receipt No. 216. One Mulla Addul Gani, examined as a witness on behalf of the defendant was working with the defeneant till the end of December 1968. His duty deposition. Which is at Exhibit 48, in reply to pointed questions he has stated as follows:-- I do not remember well whether in one occasion the said Mr. Shirgaonkar (plaintiff's partner) and I sat together to make any accounts on orders of Mr. Kadar, May be it happened so. I am shown now the writing produced at Ext. 33, It is true that the writing at the bottom of the said paper is in may lognhand. I say that whatever is written from the words 'May 5' till the end of the page. Is my handwriting. From this it is clear that the payment was made in the handwriting of the person who has been exmained by the defendant himself as his onw witness. Mr. Reis appearing for the defendant however, has protested that this payment is not covered by Sec. 19 of the Limitation Act. He h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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