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Judgment
Prabha Sridevan, J.—The only question that we have to decide in this Letters Patent Appeal is the question of limitation and whether the suit
filed by the respondent Corporation is time barred.
The Civil Supplies Corporation filed O.S. No. 49 of 1983, the date of institution being 2.12.1982, for recovery of a sum of Rs. 2,73,794/-. As
per the averments in the plaint, the cause of action arose on 26.9.1974 when the defendant executed an agreement in favour of the plaintiff for
procurement and hulling of Kuruvai paddy, for which the defendant/appellant had deposited Rs. 25,000/- as security. There was a quality cut in
respect of the rice supplied by the defendant to the plaintiff and the defendant did not return the gunny bags. As per the cause of action paragraph,
the plaintiff fixed the date on which the cause of action arose as 3.10.1980, when the District Collector was directed to invoke the provisions of
the Revenue Recovery Act. However, the plaintiff was aware of the difficulties that it may face on account of the Limitation Act and specifically
mentioned that it did not resort to civil proceedings earlier owing to the provisions of the Revenue Recovery Act, which enabled the plaintiff
Corporation to recover the dues and since the law was not settled at that time and also because the defendant had filed O.S. No. 1201 of 1980
for injunction restraining the plaintiff from recovering the amount. Therefore, these are the two grounds on which the plaintiff claimed that the suit
was in time.
3.In his written statement, the appellant herein submitted that the entire hulling operation for which the agreement was entered into came to a
conclusion on 19.4.1975. Therefore, the cause of action arose even then. It is specifically pleaded in the written statement that in 1975, dispute
arose between the plaintiff and the defendant and there was exchange of communication. It is further pleaded that on 17.12.1976, the defendant
had sent a notice through his counsel denying his liability to pay for any shortage and also demanding payment of Rs. 65,780/- towards hulling
charges. No action was taken and only in 1980, four years later, the plaintiff threatened coercive action. It is only thereafter the suit for injunction
was filed. Therefore, according to the defendant, the period of limitation for filing the suit was three years from the date of default, which was
19.4.1975. The defendant specifically pleaded that the resort to Revenue Recovery Act would not arrest the time running and the plaintiff cannot
take shelter under bona fide prosecution of other proceedings or mistake since, by the time the plaintiff invoked the Revenue Recovery Act, the
time for filing the suit had already come to an end.
4.The learned trial Judge came to the conclusion that there was a bona fide mistake on the part of the plaintiff for not filing the suit and therefore,
the suit was in time. On appeal, the learned single Judge held that the decision of this Court striking down Section 52-A of the Revenue Recovery
Act was set aside in State of Tamil Nadu Vs. G.N. Venkataswamy and others etc. etc., and since there were divergent views about the
applicability of Revenue Recovery Act, the plaintiff cannot be blamed for taking the view that Revenue Recovery Act was applicable to the plaintiff
Corporation and therefore, held that the suit was in time.
5.The learned Counsel appearing for the appellant submitted that the following dates are relevant, i.e.,
- the last transaction was in 1975,
- the notice under Revenue Recovery act was in 1979 and
- the commencement of proceedings under the Revenue Recovery Act was in 1980.
The learned Counsel submitted that if there is a dispute regarding the dues, the resort to the Revenue Recovery Act cannot be had and the plaintiff
knew by virtue of Ex.B.2, which was issued in 1976 that the appellant/defendant was denying his liability and therefore, taking shelter under the
Revenue Recovery Act to keep alive the suit is not sustainable.
6.The learned Counsel for the respondent, on the other hand, submitted that there was a genuine doubt regarding the applicability of Section 52-A
of the Revenue Recovery Act and it is an admitted fact that this provision was struck down by this Court by the judgment of the Division Bench in
G.N. Venkataswamy Vs. Tamil Nadu Small Industries Development Corporation Ltd., and on appeal by the Tamil Nadu SIDCO, the Supreme
Court set aside the judgment of this Court, which held that the Act was invalid. Therefore, this was a genuine mistake and the Corporation is
entitled to take shelter u/s 17.
7.The relevant provisions of the Limitation Act are Sections 14 and 17. By the provision of Section 14, the time spent by the plaintiff in prosecuting
with due diligence another civil proceeding either in a Court of first instance or of appeal or revision may be excluded if it was in a good faith in a
Court which suffered from want of jurisdiction. Section 14 reads thus:
Exclusion of time of proceeding bona fide in Court without jurisdiction. - (1) In computing the period of limitation for any suit the time during
which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance of of appeal or revision,
against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which,
from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another
civil proceeding, whether in a Court of first instance of of appeal or revision, against the same party for the same relief shall be excluded, where
such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908, the provisions of Sub-section (1) shall
apply in relation to a fresh suit instituted on permission granted by the Court under Rule 1 of that Order, where such permission is granted on the
ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature.
Explanation. - For the purposes of this section,-
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which
it ended shall both be counter;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
Section 17 deals with the effect of fraud or mistake and where the suit or application is for relief from the consequences of a mistake, the period of
limitation will not begin to run until the plaintiff or applicant discovered the fraud or mistake. Section 17 reads as follows:
17.Effect of fraud or mistake. - (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act, -
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him;
the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable
diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the
concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set
aside any transaction affecting, any property which-
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the
purchase know, or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a
person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and,
did not at the time of purchase know, or have reason to believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the Court may,
on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.
We are afraid neither of the sections apply to this case. The parties entered into a hulling agreement in 1975. There is no dispute regarding the
defendant''s case that the agreement itself was in force only for one year, i.e. from 28.9.1974 to 26.9.1975. Therefore, the rights and liabilities of
the parties are crystallised then. If any amount was due, that could be quantified and ascertained on that date and therefore, the cause of action for
the suit to recover the said amount arose in 1975. By Ex.P.338 dated 2.8.1975, the plaintiff sent a notice calling upon the defendant to pay the
amount. By the reply, Ex.B.2, dated 17.2.1976, the defendant had denied his liability and had in fact claimed that it was the plaintiff who should
pay some amount towards hulling charges. Therefore, even in 1976, the plaintiff was aware that there was a dispute regarding the liability.
Section 52-A provides for the recovery of dues to Tamil Nadu Agro Industries Corporation or any other Corporation which may be notified in
this behalf by the State. There is no dispute regarding the fact that the respondent Corporation is one such Corporation. But the Revenue Recovery
Act can be invoked only if the arrears sought to be recovered under Act are indisputable. When there is a dispute, the dispute must be settled by a
suit. In M.P. Abdul Hameed and Co. Vs. The Tamil Nadu Civil Supplies Corporation Ltd. and Another, , a Division Bench of this Court held that
where either the liability or its quantum is fairly and is reasonably in dispute and it does not prima facie show that a dispute is raised merely as a
make-belief to circumvent the application of Section 52, resort to that section cannot be made and for this purpose, relied on an earlier decision of
another Division Bench in 1974 T.L.N.J. 511 [Commissioner of Civil Supplies v. V. Seethuraman]. In the case on hand, the defendant, viz. the
appellant herein, had sent a notice denying his liability to pay for any shortage and also demanding payment towards hulling charges and therefore,
unless the respondents come forward and say that the dispute has been raised only as a make-belief or that the dispute itself is sham, they cannot
resort to the provisions of the Revenue Recovery Act. In Mahabir Kishore and others Vs. State of Madhya Pradesh, , a Division Bench of the
Supreme Court held that Corporations such as the respondent-Corporation could resort to the provisions of the Revenue Recovery Act to recover
its dues without resorting to the long winded process of a civil suit.
The invocation of Section 17 would arise only if there is a mistake, e.g., if some right is not asserted because of a mistake of law and the
period of limitation will not run until the mistake is discovered. In this case, the mistake could be only regarding the applicability of Section 52A.
When the Act came into force, there could not have been any doubt in the mind of the respondent-Corporation that it could either resort to the
Revenue Recovery Act or file a suit. The Division Bench struck it down, which means that as far as the Corporation is concerned, its only option
was to file a suit. The decision of the Division Bench came in 1981, whereas the suit had been filed on 3.10.1982. The respondent could take
benefit of the Limitation Act only if, by the mistake, he was prevented from filing the suit. For filing the suit, the time expired in 1979 since the
dispute regarding the liability arose in 1976 itself. The respondent should have filed the suit before 1979 and it is only on 9.12.1997 that the notice
under the Revenue Recovery Act was issued and proceedings were initiated on 3.10.1980.
In AIR 1965 Mad 459 [S.N. Jayarama Aiyer v. S. Rajagopalan], Veeraswami, J. (as he then was) explained the scope of Section 14 of the
Limitation Act. There, the suit was for accounts. The last date for instituting the suit was 6.10.1957. 6.10.1957 and 7.10.1957 happened to be
holidays. The plaint was filed on 8.10.1957, but in a wrong court. It was pending till 18.11.1957. It was contended that in view of Sections 4 and
14 of the Limitation Act, the suit was within time. This was rejected and this Court held that the effect of Section 4 is merely to relieve the hardship
arising out of the fact that the last day of limitation happens to be holiday. This provision does not pertain to the computation of the period. Section
14 deals with a case where proceedings are filed in a wrong court and the time taken there is excluded. The learned single Judge thereafter
explains that where a plaint is filed in a wrong court out of time, it could not be brought within the period of limitation by applying Section 14.
Though this does not directly apply to the present case, it gives us an indication as to how we should apply Section 14 as well as Section 17 of the
Limitation Act in this case. If there is a mistake which the respondent can rely on for securing the strength of Section 17, it is regarding the question
whether the Revenue Recovery Act is applicable.
Suppose in this case the Corporation had initiated proceedings under the Revenue Recovery Act and thereafter it was held that the provisions
of the Act were not applicable to the Corporation, then it might, with justification, say it had mistakenly invoked the Revenue Recovery Act and
therefore, the time spent in those proceedings should be excluded to calculate the period of limitation for filing the suit. In this case, when the
respondent filed the suit, the plea could be taken that they were under the impression that they could not invoke Section 52A because it was
invalid. So, even if one had to exclude the time spent from the date when they resorted to the Revenue Recovery Act, i.e. from 1979, still the suit
filed in 1983 was barred by time since even when the Revenue Recovery Act was invoked, the time for filing the suit had expired. Therefore, we
hold that neither Section 14 nor Section 17(1)(c) of the Limitation Act will apply to the facts of this case.
As regards the scope of Section 17(1)(c), the Supreme Court had explained it in Mahabir Kishore and others Vs. State of Madhya Pradesh,
as follows:
Section 17(1)(c) of the Limitation Act, 1963, provides that in the case of a suit for relief on the ground of mistake, the period of limitation does not
begin to run until the plaintiff had discovered the mistake or could with reasonable diligence, have discovered it. In a case where payment has been
made under a mistake of law as contrasted with a mistake of fact, generally the mistake becomes known to the party only when a court makes a
declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a
pronouncement, it is seldom that a person can, even with reasonable diligence, discover a mistake of law before a judgment adjudging the validity
of the law.
We have already given our reasons for rejecting the invocation of Section 17(1)(c). Therefore, the suit filed in 1982 is hopelessly barred in
time. The Letters Patent Appeal is allowed. The suit in O.S. No. 49 of 1983 is dismissed. No costs.