TMI Blog2019 (12) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... mption from such law is claimed . The exemption provided Under Sections 4 to 20 of the Limitation Act, 1963 are based on certain facts and events. Section 19, with which we are concerned, provide for a fresh period of limitation, which is founded on certain facts, i.e., (i) whether payment on account of debt or of interest on legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, (ii) an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment. A perusal of the plaint indicates that there is no pleading as to exception of limitation by running any fresh period of limitation as per Section 19. In paragraph 10, the details of delivery challans have been given, last challan being dated 04.10.1993 has been mentioned by which supply was made. In paragraph 12, details of payments received have also been mentioned, in which last being made on 05.03.1994 has been mentioned, but for the last payment made on 05.03.1994, there was no pleading of an acknowledgment on the part of the Respondents, which could result in start of fresh period of limitation - There being no specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me the Act namely The interest on Delayed Payments to Small Scale and Ancillary Industrial Undertaking Act, 1993 (hereinafter referred to as Act, 1993 ) w.e.f. 23.09.1992. 2.2 A Writ Petition (C) No. 1351 of 1993 was filed by Assam Conductors Manufacturers Association on behalf of its five members, which included M/s. Shanti Conductors Private Limited also for realisation of its dues and for seeking payment. An interim order was passed by the Guwahati High Court on 21.07.1993, in which the High Court observed that Respondents may settle with the outstanding bills of the Petitioners. The Respondent paid an amount of approx. ₹ 2.15 Crores in instalments to the Petitioner and the last instalment of payment being made on 05.03.1994. A Money Suit No. 21 of 1997 was filed by the Petitioner in the Court of Civil Judge (Sr. Division) No. 1 at Guwahati on 10.01.1997 for a decree of ₹ 53,68,492.56 towards the interest only on the payment of the principal amount, which had already been received by the Petitioner. 2.3 On 28.08.1997, Writ Petition (C) No. 1351 of 1993 was dismissed observing that writ Petitioner may go to the Civil Court for realisation of its dues. 2.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply having been completed on 04.10.1993 and even though three years period from 04.10.1993 had lapsed, but the payment having been made on 05.03.1994 by the Respondents, a fresh period of limitation shall be available to the Petitioner as per Section 19 of the Limitation Act, 1963. It is submitted that in the written submission, which was submitted on behalf of the Petitioner, reliance was placed on Section 19 and further in earlier judgment of this Court reported in (2016) 15 SCC 13, in paragraph 53, Justice Gowda has answered the question of limitation in favour of the Appellant relying on Section 13. It is submitted that Section 19 escaped the notice of this Court while answering the question of limitation, which is an error apparent, need to be corrected and it has to be held that suit was well within time. Dr. Singhvi further submits that Petitioners were also entitled for benefit of Section 14 of the Limitation Act since Writ Petition No. 1351 of 1993 was filed in the High Court by Assam Conductors manufacturers Association, of which Petitioner was one of the members, which writ petition came to be dismissed on 28.08.1997, the period during which the writ petition was pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for claiming benefit Under Section 19 nor proved the same in the suit, hence benefit of Section 19 cannot be extended. He further submits that for taking benefit of Section 19 of the Limitation Act, there has to be acknowledgment of the payment, which is a question of fact required to be pleaded and proved by the Plaintiffs. 7. Learned senior Counsel for the parties have also placed reliance on various judgments of this Court, which shall be referred to while considering the submissions. 8. We may first consider the grounds raised by the Petitioner on Section 19 of the Limitation Act. Although, during oral submissions, no argument was raised on Section 19 of the Limitation Act, but the question being of limitation of the suit, we permitted the learned Counsel for the parties to advance their submissions. 9. Section 19 of the Limitation Act is as follows: 19. Effect of payment on account of debt or of interest on legacy.--Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grounds of exemption from limitation law. - Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed: Provided that the Court may permit the Plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. 12. Order VII Rule 6 uses the words the plaint shall show the ground upon which exemption from such law is claimed . The exemption provided Under Sections 4 to 20 of the Limitation Act, 1963 are based on certain facts and events. Section 19, with which we are concerned, provide for a fresh period of limitation, which is founded on certain facts, i.e., (i) whether payment on account of debt or of interest on legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, (ii) an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment. We may notice the judgment of this Court dealing with Section 20 of the Limitation Act, 1908, which was akin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... got to allege in his plaint the facts which entitle him to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption Under Section 20. Limitation Act the Plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section.... 13. We need to notice as to whether the Petitioners in plaint have pleaded any exclusion of time Under Section 19 of the Act or not. The plaint is filed as Annexure P/2 in Civil Appeal Nos. 8442-8443 of 2016. A perusal of the plaint indicates that there is no pleading as to exception of limitation by running any fresh period of limitation as per Section 19. In paragraph 10, the details of delivery challans have been given, last challan being dated 04.10.1993 has been mentioned by which supply was made. In paragraph 12, details of payments received have also been mentioned, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an acknowledgment of the payment in the handwriting of the person giving the cheque. Paragraph 8 of the judgment is as follows: 8. This brings us to the question of limitation. The facts are not in dispute now. The promissory note was executed on February 4, 1954. On the same date a postdated cheque bearing the date February 25, 1954 was given by the Defendant-Appellant to the Plaintiff-Respondent, the intention being that on being realised it would be credited towards part payment. It was realised sometime after February 25, 1954 and was credited towards part payment, the Appellant himself having made an endorsement admitting this part payment. But it is contended on behalf of the Appellant that as the post-dated cheque was given on February 4, 1954, that must be held to be the date on which part payment was made. It has been held by the High Court that the acceptance of the post-dated cheque on February 4, 1954 was not an unconditional acceptance. Where a bill or note, is given by way of payment, the payment may be absolute or conditional, the strong presumption being in favour of conditional payment. It followed from the finding of the High Court that the payment was conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e earliest for payment. As in the present case the cheque was honoured it must be held that the payment was made on February 25, 1954. It is not in dispute that the proviso to Section 20 is complied with in this case, for the cheque itself is an acknowledgment of the payment in the handwriting of the person giving the cheque. We are therefore of opinion that a fresh period of limitation began on February 25, 1954 which was the date of the post-dated cheque which was eventually honoured. 15. In the above case, in the plaint itself it was noticed that although the promissory note was executed on 04.02.1954 and the suit was filed on 22.04.1957 but the Plaintiff had relied on payment of a cheque on 25.02.1954 to bring the suit within time. Paragraph 1 of the judgment is to the following effect: Two questions of law arise in this appeal by special leave against the judgment of the Patna High Court. The facts which have been found by the High Court and which are necessary for our purposes may be briefly narrated. The Appellant was the Defendant in a suit filed by the Plaintiff-Respondent for recovery of money on the basis of a promissory note for ₹ 10,000 executed on February ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revisional court had missed a fact apparent upon the record and, therefore, thought it fit, in the exercise of its discretion to review its judgment. Justice has thereby been furthered rather than frustrated. We are not here concerned with an endorsement on the deed as constituting a cause of action. 17. The above judgment noticed the function of Section 19, which provides for a later date to count the period of limitation afresh. There cannot be any dispute to the preposition as laid down by this Court in above case. 18. We may also notice the proviso of Order VII Rule 6, which has been added by Act 104 of 1976, which provided that the Court may permit the Plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. The proviso of Order VII Rule 6 cannot come to the rescue of the Plaintiff since as noticed above, the Plaintiffs have specifically pleaded in paragraph 21 that the provisions of the Limitation Act are not applicable since Act, 1993 has overriding effect. The trial court in decreeing the suit of the Plaintiff has accepted the above submission and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew has been reiterated by this Court from time to time. It is sufficient to refer the judgment of this Court in Parsion Devi and Ors. v. Sumitri Devi and Ors. (1997) 8 SCC 715, wherein in paragraph 9 following has been laid down: 9. Under Order 47 Rule 1 Code of Civil Procedure a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review Under Order 47 Rule 1 Code of Civil Procedure. In exercise of the jurisdiction Under Order 47 Rule 1 Code of Civil Procedure it is not permissible for an erroneous decision to be reheard and corrected . A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise . 22. We, thus, do not find any merit in Review Petition (C) Nos. 786-787 of 2019, which is accordingly dismissed. Review Petition (C) No. 789 of 2019 23. Shri Ajit Kumar Sinha, learned senior Counsel in support of the review petition contended that there is an error a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 11. BCPI/30/92-93 - ₹ 12,782.45 12. 5% Security Deposit Bill - ₹ 23,738.00 Total Outstanding Amount ₹ 23,28,324.39 24. A perusal of the above chart given in the judgment indicates that the date 29.09.1992 is a date of bill for the payment for supply of the materials by the Plaintiffs. In the judgment dated 23.01.2019, we had observed that there being nothing on record to come to the conclusion that any supply was made after the enforcement of the Act so as to enable the Appellant to claim interest Under Section 3 read with Section 4 of the Act, 1993, we are of the view that judgment of the High Court does not need any interference in this appeal . 25. We, thus, do not find any merit in the submission of the learned Counsel for the Appellant that there is error apparent on the face of record in observation of the Court made in paragraph 85 of the judgment, the said submission is rejected and the Review Petition (C) No. 789 of 2019 is dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Petitioner that he was entitled for the benefit of Act, 1993 rather the High Court accepted the submission of the Petitioner that Plaintiffs are not debarred from claiming cost Under Section 34 Code of Civil Procedure, Section 61 of the Sale of Goods Act, 1930 or Section 3 of the Interest Act, 1978 or in equity only on the ground of principal amount. The High Court granted interest at the rate of 9% per annum. The Civil Appeal No. 8445 of 2016 has been filed against the review judgment but obviously the appeal is not against the 9% interest granted to the Petitioner. Review judgment does not grant interest under Act, 1993 since the High Court in the review judgment did not interfere with the earlier finding that Petitioner is not entitled for benefit under Act, 1993. The review on the ground on which liberty was sought was in essence not accepted by the High Court in its review judgment. Moreover, in judgment dated 23.01.2019, the maintainability of appeal having been considered and found against the Petitioner, we do not find any ground to review the petition. 29. In result, Review Petition (C) Nos. 786-787 of 2019, Review Petition (C) No. 789 of 2019 and Review Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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