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TMI Blog2019 (12) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... d 13.05.1992 for supply of aluminium electrical conductors. Petitioner completed supply in pursuance of the above supply orders beginning from June, 1992 till 04.10.1993. The President of India to provide for and regulate payment of interest on delayed payment to small scale industries issued an Ordinance on 23.09.1992 namely "The interest on Delayed Payments to Small Scale and Ancillary Industrial Undertaking Ordinance", which subsequently became 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. Rs. 2.15 Crores in instalments to the Petitioner and the last instalment of payment being made on 05.03.1994. A Mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as barred by time. 5. Shri Abhishek Manu Singhvi, learned senior Counsel appearing for Petitioner submits that there is an apparent error in the judgment dated 23.01.2019 in holding that suit was barred by time. He submitted that according to admitted facts last payment made by the Respondent was on 05.03.1994 and suit having been filed within three years, i.e., on 10.01.1997 was well within time. It is submitted that last 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently dismissed by the Division Bench, which fact has been concealed by the Petitioner. When against the judgment of learned Single Judge, the appeal was filed, no question of bonafide prosecuting the earlier proceedings arises. Shri Hansaria further submits that for taking benefit Under Section 19 of the Limitation Act, there has to be specific pleading and proof in the suit. Plaintiffs have neither pleaded any ground 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. The provisions of Sections 4 to 20 are exceptions when suit beyond the period of limitation as prescribed in the Schedule shall not be dismissed as required by Section 3. In this context, we need to refer to Order VII Rule 6 of the Code of Civil Procedure. Order VII deals with plaint. Order VII Rule 6 contains a heading "Grounds of exemption from limitation law". Order VII Rule 6 is as follows: 6. 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., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d v. Mohan Lal A.I.R. (10) 1923 Nag 117 and Viswanath v. Mahadeo 57 Bom. 453. 10. ...If the Plaintiff's right of action is apparently barred under the Statute of limitation, Order 7, Rule 6, Code of Civil Procedure makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation; and if the Plaintiff has 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 Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars or the date the cheque is handed over to compute the start of fresh period of limitation. The Court held that the date which post-dated cheque bears subject to payment by the bank shall be treated as a date for start of the fresh period of limitation. In paragraph 8 of the judgment, it was observed that the proviso to Section 20 shall be treated to be complied with for the cheque itself is 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acceptance of a post-dated cheque becomes actual payment when honoured. We are therefore of opinion that as a post-dated cheque was given on February 4, 1954 and it was dated February 25, 1954 and as this was not a case of unconditional acceptance, the payment for the purpose of Section 20 of the Limitation Act could only be on February 25, 1954 when the cheque could have been presented at the 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered and the personal covenant was contained in the registered deed. Therefore, Article 116, which gives a period of six years, applies. Thus, the fresh period of limitation will be six years and it has to be counted from the date of acknowledgement, namely, August 31, 1940. In this view, there in no merit in the plea of limitation either. This is obviously a case where 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 groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act ought to attract interest of the Act, 1993, all these submissions have been elaborately considered in the judgment dated 23.01.2019, which have been considered on merits. The scope of review is limited and under the guise of review, Petitioner cannot be permitted to reagitate and reargue the questions, which have already been addressed and decided. The scope of review 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 dismissed. Review Petition (C) No. 788 of 2019 26. Shri Basava S. Prabhu Patil, learned senior Counsel appearing for the Petitioner contends that this Court in the judgment dated 23.01.2019 has dismissed the appeal of the Petitioner as not maintainable, which is an error apparent on record. He submits that the appeal filed by the Petitioner being Civil Appeal No. 8445 of 2016 against the review judgment of the High Court dated 19.03.2013 was maintainable. 27. Shri Patil submits that in the judgment dated 23.01.2019, the Issue No. 6 was specifically framed regarding maintainability of the Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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