REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (C) NOS. 786-787 OF 2019
IN
CIVIL APPEAL NOS. 8442-8443 Of 2016
M/S SHANTI CONDUCTORS (P) LTD. ...APPELLANT(S)
VERSUS
ASSAM STATE ELECTRICITY
BOARD AND ORS. ...RESPONDENT(S)
WITH
REVIEW PETITION (C) NO. 789 OF 2019
IN
CIVIL APPEAL NOS. 8450 Of 2016
M/S BRAHMAPUTRA CONCRETE
PIPE INDUSTRIES ...APPELLANT(S)
VERSUS
THE ASSAM STATE ELECTRICITY BOARD ...RESPONDENT(S)
1
AND
REVIEW PETITION (C) NO. 788 OF 2019
IN
CIVIL APPEAL NOS. 8445 Of 2016
M/S TRUSSES AND TOWERS (P) LTD. ...APPELLANT(S)
VERSUS
ASSAM STATE ELECTRICITY
BOARD AND ANR. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
These review petitions have been filed against
the common judgment dated 23.01.2019 passed in Civil
Appeal Nos. 8442-8443 of 2016, Civil Appeal No.8450
of 2016 and Civil Appeal No.8445 of 2016, by which
all the Civil Appeals were dismissed, sought to be
reviewed by these applications. All the review
petitions filed have raised different grounds, which
need to be considered separately.
2
Review Petition (C) Nos. 786-787 of 2019
2. To consider the grounds raised in the review
petition, few facts need to be noticed.
2.1 The Assam State Electricity Board, the
respondent has issued two supply orders to
the petitioner dated 31.03.1992 and
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.
3
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 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 Rs.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
4
petitioner may go to the Civil Court for
realisation of its dues.
2.4 The trial court on 02.02.2000 decreed the
money suit of the petitioner for
Rs.51,60,507.42 with future interest @ 23.75%
on a monthly compounding basis. RFA No.66 of
2000 was filed by the petitioner against the
judgment of the trial court. The Division
Bench made a reference to the Full Bench for
answering three points as raised by the
counsel for the appellant. Three-Judge Bench
answered the reference on 05.03.2002. The
respondent filed Special Leave Petition (C)
No. 24577 of 2002, which was subsequently
converted in Civil Appeal No.2351 of 2003.
This Court on 10.07.2012 dismissed the Civil
Appeal No.2351 of 2003 [M/s. Assam State
Electricity Board Vs. M/s. Shanti Conductors
Pvt. Ltd.] alongwith another Civil Appeal
No.2348 of 2003 [M/s. Purbanchal Cables and
Conductors Pvt. Ltd. Vs. Assam State
Electricity Board]. After dismissal of the
5
above Civil Appeals, the Division Bench of
the High Court allowed the RFA No.66 of 2000
filed by the respondents and dismissed the
suit of the petitioner.
2.5 Against the judgment of the Division Bench
dated 20.11.2012, Civil appeal Nos.8442-8443
of 2016 was filed by M/s. Shanti Conductors
(P) Ltd, the petitioner in the appeal. Two
judgments were delivered by two Hon’ble
Judges with two divergent opinion, which
judgment is reported in (2016) 16 SCC Page
13. The matter was referred to Three Judge
Bench, which heard all the appeals and vide
its judgment dated 23.01.2019 dismissed the
appeals.
3. In the suit filed by the petitioners, one of the
questions, which was framed was “Whether the suit
filed by the appellants is barred by limitation?” In
paragraph 27 of the judgment dated 23.01.2019, Seven
question, which had arisen in these appeals have been
6
noticed. Issue No.3 was “Whether money suit by M/s.
Shanti Conductors was barred by limitation?
4. Issue No.3 has been dealt from paragraphs 59 to
76 and we concluded in paragraph 76 that suit filed
by M/s. Shanti Conductors (P) Ltd. was 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
7
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 pending
consideration ought to have been excluded while
computing the limitation for money suit filed by the
petitioner. Dr. Singhvi submits that although in the
impugned judgment, this Court has considered claim of
petitioner of exclusion of time under Section 14 of
the Limitation Act but the benefit was erroneously
8
denied on the ground that writ petition was filed by
the Assam Conductors Manufacturers Association, which
is a different entity than the petitioner. He
submits that the said view is apparently erroneous
and need to be corrected. In the review petition,
apart from submissions of limitation, several other
grounds have been urged touching on the issues, which
have been considered and decided in the judgment
dated 23.01.2019. He sought to contend that Act,
1993 is retroactive and further any outstanding
amount at the time of commencement of the Act ought
to attract interest under the Act, 1993.
6. Shri Vijay Hansaria, learned senior counsel
appearing for the respondents refuted the contentions
of the petitioner and submitted that there is no
error apparent on record. The question on limitation
of Suit has been specifically considered and this
court held that suit is barred by time. Arguments
made on the strength of Section 14 has been
specifically considered and rejected. The petitioner
was not entitled for any benefit of Section 14 of the
Limitation Act since Section 14 contemplates
9
exclusion of time of the proceeding, which the
plaintiff has been prosecuting with due diligence.
He submits that plaintiff in the suit in question is
M/s. Shanti Conductors whereas petitioner in the writ
petition, which was filed in the Guwahati High Court
was association, which is a different entity and it
cannot be said that plaintiff of suit was the same
entity, which had filed the writ petition. Shri
Hansaria further submits that against the dismissal
of the writ petition, a writ appeal was filed by the
Association, which writ appeal was also subsequently
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
10
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 computed
from the time when the payment was made:
11
Provided that, save in the case of
payment of interest made before the 1st
day of January, 1928, an acknowledgment of
the payment appears in the handwriting of,
or in a writing signed by, the person
making the payment.
Explanation.—For the purposes of this
section,—
(a) where mortgaged land is in the
possession of the mortgagee, the
receipt of the rent or produce of
such land shall be deemed to be a
payment;
(b) “debt” does not include money payable
under a decree or order of a court.”
10. In the judgment dated 23.01.2019, it has been
held that the limitation of the suit filed by the
petitioner shall be governed by Article 113 of the
Limitation Act, 1963, which is three years from the
date when the right to sue accrues. In paragraph 71
of the judgment, it has been held that last supply
was completed on 04.10.1993, thus, amount became due
on 04.11.1993 and the period of three years shall
start running from 04.11.1993 and suit filed was
beyond three years. The petitioners on the strength
of Section 19 contends that since the last payment
was made on 05.03.1994, a fresh period of limitation
12
shall begin from the fresh date, i.e., 05.03.1994 and
the suit filed on 10.01.1997 was well within time.
Section 3 of the Limitation Act, 1963 deals with bar
of limitation. Section 3(1) is as follows:-
“3. Bar of limitation.—(1) Subject to the
provisions contained in sections 4 to 24
(inclusive), every suit instituted, appeal
preferred, and application made after the
prescribed period shall be dismissed,
although limitation has not been set up as
a defence.
XXXXXXXXXXXXXXXXXX”
11. The above provision makes it clear that in event,
a suit is instituted after the prescribed period, it
shall be dismissed although limitation has not been
set up as a defence. The Court by mandate of law, is
obliged to dismiss the suit, which is filed beyond
limitation even though no pleading or arguments are
raised to that effect. 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 Civil
Procedure Code. Order VII deals with plaint. Order
VII Rule 6 contains a heading “Grounds of exemption
13
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., (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
14
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 to present
Section 19 of the Limitation Act, 1963. In Sant Lal
Mahton Vs. Kamla Prasad and Others, AIR 1951 SC 477,
this Court held that for applicability of Section 20
of the Limitation Act, 1908, two conditions were
essential that the payment must be made within the
prescribed period of limitation and it must be
acknowledged by some form of writing either in the
handwriting of the payer himself or signed by him.
This Court further held that for claiming benefit of
exemption under Section 20, there has to be pleading
and proof. In paragraphs 9 and 10, following has
been laid down:-
“9. It would be clear, we think, from the
language of s. 20, Limitation Act, that to
attract its operation two conditions are
essential : first, the payment must be
made within the prescribed period of
limitation and secondly, it must be
acknowledged by some form of writing
either in the handwriting of the payer
himself or signed by him. We agree with
the Subordinate Judge that it is the
payment which really extends the period of
limitation under s. 20, Limitation Act;
but the payment has got to be proved in a
particular way and for reason of policy
the legislature insists on a written or
15
signed acknowledgment as the only proof of
payment and excludes oral testimony.
Unless, therefore, there is acknowledgment
in the required from, the payment by
itself is of no avail. The Subordinate
Judge, however, is right in holding that
while the section requires that the
payment should be made within the period
of limitation, it does not require that
the acknowledgment should also be made
within that period. To interpret the
proviso in that way would be to import
into it certain words which do not occur
there. This is the view taken by almost
all the High Courts in India and to us it
seems to be a proper view to take (See Md.
Moizuddin v. Nalini Bala A.I.R. (24) 1937
Cal 284 : I.L.R. (1937) 2 Cal. 137; Lal
Singh v. Gulab Rai 55 All 280, Venkata
Subbhu v. Appu Sundaram 17 Mad. 92, Ram
Prasad 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, O. 7, R. 6, Civil
P.C. 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 s. 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
16
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 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. Further in paragraph 21, it has been
further specifically pleaded that provisions of
Limitation Act do not apply in view of the provisions
contained in the Act, 1993 as because the Act, 1993
is having overriding effect over the Limitation Act
17
and all other Acts. Paragraph 21 of the plaint is
referred to for ready reference:-
“21. That the transaction between the
plaintiffs and the defendants are duly
maintained by the plaintiffs in the Books
of Accounts like ledger, Sale Register
etc., which are kept in the usual course
of the business of the plaintiffs and
those accounts between the plaintiffs and
the defendants are in continuity and the
interest payable by the defendants to the
plaintiffs are carried over till date. As
such the suit of the plaintiffs is in
within time. Apart from that the
provisions of the Limitation Act do not
apply in view of the provisions contained
in the Act, 1993 as because the Act of
1993 is having overriding effect over the
Limitation Act and all other Acts.”
14. There being no specific pleading by the
plaintiffs claiming any start of fresh period of
limitation, there was no occasion for defendants to
raise any reply in reference to Section 19. Shri
Abhishek Manu Singhvi, learned senior counsel has
relied on two judgments of this Court, which need to
be noticed: (i) Jiwanlal Achariya Vs. Rameshwarlal
Agarwalla, AIR 1967 SC 1118, and (ii) Kamla Devi and
Others Vs. Pt. Mani Lal Tewari and Others, (1976) 4
SCC 818. In Jiwanlal Achariya (supra), this Court
had occasion to consider Section 20 of the Limitation
18
Act, 1908, which was akin to present Section 19 of
the Limitation Act, 1963. The Court was considering
the question as to what shall be the date of a postdated cheque, whether it shall be the date on which
cheque bears 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
19
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 conditional
i.e. that the payment will be credited to
the person giving the cheque in case the
cheque is honoured. In the present case
the cheque was realised and the question
is what is the date of payment in the
circumstances of this case for the purpose
of Section 20 of the Limitation Act.
Section 20 inter alia lays down that where
payment on account of debt is made before
the expiration of the prescribed period by
the person liable to pay the debt, a fresh
period of limitation shall be computed
from the time when the payment was made.
Where therefore the payment is by cheque
and is conditional, the mere delivery of
the cheque on a particular date does not
mean that the payment was made on that
date unless the cheque was accepted as
unconditional payment. Where the cheque is
not accepted as an unconditional payment,
it can only be treated as a conditional
payment. In such a case the payment for
purposes of Section 20 would be the date
on which the cheque would be actually
payable at the earliest, assuming that it
will be honoured. Thus if in the present
case the cheque which was handed over on
February 4, 1954 bore the date February 4,
1954 and was honoured when presented to
the bank the payment must be held to have
been made on February 4, 1954, namely, the
date which the cheque bore. But if the
cheque is post-dated as in the present
20
case it is obvious that it could not be
paid till February 25, 1954 which was the
date it bore. As the payment was
conditional it would only be good when the
cheque is presented on the date it bears,
namely, February 25, 1954 and is honoured.
The earliest date therefore on which the
respondent could have realised the cheque
which he had received as conditional
payment on February 4, 1954 was 25th
February, 1954 if he had presented it on
that date and it had been honoured. The
fact that he presented it later and was
then paid is immaterial for it is the
earliest date on which the payment could
be made that would be the date where the
conditional 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
21
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 plaintiffrespondent for recovery of money on the
basis of a promissory note for Rs 10,000
executed on February 4, 1954 by the
defendant-appellant in favour of the
plaintiff-respondent. 12 per cent per
annum interest was to run on the
promissory note which was payable on
demand or to the order of the plaintiffrespondent. The suit was filed on February
22, 1957 and was thus obviously beyond
time from February 4, 1954. The plaintiffrespondent relied on a payment by cheque
on February 25, 1954 to bring the suit
within time.”
16. The judgment of this Court in Jiwanlal Achariya
(supra) does not lay down that even without pleading
all facts for claiming start of fresh period of
limitation, the plaintiff is entitled for the benefit
of Section 19. The next judgment relied by Shri
Singhvi is Kamla Devi and Others (supra), in which
22
case, this Court was considering Section 19 of the
Limitation Act, 1963. This Court relied on an
acknowledgement of payment for holding that from the
date of acknowledgment of order period of limitation
shall start. In paragraph 4 of the judgment
following has been laid down:-
“4. The last contention pressed was that
the personal decree should not have been
granted, because it was barred by
limitation. The basis for this contention
is that the payment of Rs 25, which has
been acknowledged on the registered
mortgage deed, was not itself by a
registered endorsement and, therefore, the
plaintiff was entitled to a period of
three years only, even if Section 19 may
give an extension of limitation. We see no
merit in this contention. The function of
Section 19 is to provide a later date to
count the period of limitation afresh, and
that fresh period of limitation will be
computed from the time when the
acknowledgement is signed. Nothing turns
on whether the acknowledgement is itself
registered or not. The office of Section
19 being to postpone the date of reckoning
limitation and not to create a different
substantive period of limitation, the
latter depends upon the appropriate
article of the Limitation Act which
applies to the suit. In this case, the
mortgage document was 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.
23
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 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
24
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 has
held that Limitation Act, 1963 is not applicable.
19. We may further notice that paragraph 24 of the
plaint, which is a paragraph of cause of action for
the suit, which refers to date beginning from
31.03.1992 till 05.10.1993, i.e., the beginning from
the first supply order i.e., 31.03.1992 and date of
last supply order, i.e., 05.10.1993, but cause of
action is not claimed from the date 05.03.1994, which
was the date when the last payment was received by
the petitioner. The petitioner in the plaint has
clearly not pleaded for benefit of Section 19 nor has
brought necessary facts to enable the Court to
consider the claim under Section 19. We, thus, are
of the view that petitioner is not entitled for
benefit of Section 19 of the Limitation Act and there
is no error in the judgment of this Court dated
23.01.2019 holding that the suit of the plaintiff was
barred by time.
25
20. We may also notice few submissions of Dr. Singhvi
in support of his plea that the petitioner was
entitled for benefit of Section 14. In our judgment
dated 23.01.2019, we have already taken the view that
benefit of Section 14 of Limitation Act cannot be
claimed by the plaintiff since writ petition, which
was filed by the Association was by different entity.
The question of benefit of Section 14 having been
specifically considered and rejected by this Court in
its judgment dated 23.01.2019, we do not find any
error apparent on the aforesaid ground. Moreover,
present is a case where writ petition filed by
Association was dismissed on 28.08.1997 subsequent to
filing of the suit by plaintiff on 10.01.1997.
Furthermore, after the judgment of the learned Single
Judge on 28.08.1997 Association has filed a writ
appeal challenging the said judgment, which facts
also detracts from fulfilling the conditions as
required for extending the benefit of Section 14 of
the Limitation Act.
26
21. Insofar as other submissions of Dr. Singhvi that
Act, 1993 is retroactive in nature and further amount
due at the time of the commencement of the 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 ben 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 Others Vs. Sumitri Devi and
Others, (1997) 8 SCC 715, wherein in paragraph 9
following has been laid down:-
“9. Under Order 47 Rule 1 CPC 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
CPC. In exercise of the jurisdiction under
Order 47 Rule 1 CPC 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
27
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 apparent on the face of record in
observation of the Court made in paragraph 85 of the
judgment. Some of the supplies have been made prior
to the commencement of the Act, 1993, i.e., prior to
23.09.1992. It is submitted that some of the
supplies were made after 23.09.1992, hence the
petitioner was entitled for the benefit of interest
under the Act, 1993. He submits that in ground (b),
it has been mentioned that details of supply and
reason of corresponding details have been noticed by
the trial court in the judgment dated 30.09.2002
passed in Money Suit No.32 of 1996. Reference has
been made to Annexure – P/3 at Page – 71 @ Page 88 of
28
Civil Appeal No.8450 of 2016. We have perused
Annexure P/3, the judgment of the trial court dated
30.09.2002, our attention has been invited to page 88
of the judgment, where reference of 12 bills have
been made in the judgment, which is to the following
effect:-
“Stated specifically, it is the
plaintiff’s evidence that against the
supply of poles to the defendants
different divisions on receipt of orders
from the defendants, the plaintiff
submitted a number of twelve bills for the
payment to the defendants to be reiterated
as:
Sl.
No.
Bill No. Date Gross Amount of
Bill
1. BCPI/31/91/92 20.3.92 Rs.5,02,545.92
2. BCPI/32/91/92 20.3.92 Rs.2,99,541.65
3. BCPI/33/91/92 20.3.92 Rs.2,98,344.48
4. BCPI/3/92/93 7.4.92 Rs.4,67,928.48
5. BCPI/11/92-93 8.6.92 Rs.1,08,806.45
6. BCPI/12/92-93 8.6.92 Rs.2,48,459.90
7. BCPI/26/92-93 29.9.92 Rs.17,729.50
8. BCPI/27/92-93 - Rs.79,699.77
9. BCPI/28/92-93 - Rs.1,81,497.98
10. BCPI/29/92-93 - Rs.87,249.81
11. BCPI/30/92-93 - Rs.12,782.45
12. 5% Security
Deposit Bill
- Rs.23,738.00
Total
Outstanding
Amount
Rs.23,28,324.39
29
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 dismissed.
Review Petition (C) No.788 of 2019
30
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 Civil Appeal No.8445
of 2016. The maintainability of the appeal was
specifically considered and answered in paragraphs
80. 81 and 82 of the impugned judgment. The
submission of Shri Patil is that since the Civil
Appeal No.8445 of 2016 was against the judgment of
the High Court dated 19.03.2013 by which review
petition was partly allowed by allowing interest @9%
p.a., against which judgment, the appeal was
maintainable and withdrawal of earlier appeal by the
petitioner was not fatal. The appellants were issued
31
two supply orders dated 17.02.1992 and 17.03.1992.
The suit was filed on 16.05.1994 seeking decree with
interest, which trial court decreed. Assam
Electricity Board filed a first appeal, which was
allowed by the High Court holding that bills raised
by the appellants were cleared by the Assam
Electricity Board prior to commencement of Act, 1993,
hence the appellant was not entitled for benefit of
Act, 1993. Special leave petition filed against the
judgment of the High Court dated 05.04.2001 was
permitted to be withdrawn by following order:-
“Learned counsel for the petitioner seeks
leave to withdraw the special leave
petition. He states that he will move the
High Court in review stating that it has
erred in recording that “all the bills
were paid and cleared earlier to the
commencement of the Act.” The special
leave petition is dismissed as withdrawn
accordingly.”
28. After the aforesaid judgment of this Court
permitting the petitioner to withdraw the special
leave petition, a review petition was filed, which
was partly allowed on 19.03.2013. A perusal of the
judgment dated 19.03.2013 indicates that the grounds
on which the petitioner prayed liberty to file review
32
was not proved in the review petition. The High
Court in the review judgment did not hold in favour
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 CPC,
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.
33
29. In result, Review Petition (C) Nos. 786-787 of
2019, Review Petition (C) No. 789 of 2019 and Review
Petition (C) No. 788 of 2019 are dismissed.
......................J.
( ASHOK BHUSHAN )
......................J.
( S. ABDUL NAZEER )
......................J.
( NAVIN SINHA )
New Delhi,
December 18, 2019.
34
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (C) NOS. 786-787 OF 2019
IN
CIVIL APPEAL NOS. 8442-8443 Of 2016
M/S SHANTI CONDUCTORS (P) LTD. ...APPELLANT(S)
VERSUS
ASSAM STATE ELECTRICITY
BOARD AND ORS. ...RESPONDENT(S)
WITH
REVIEW PETITION (C) NO. 789 OF 2019
IN
CIVIL APPEAL NOS. 8450 Of 2016
M/S BRAHMAPUTRA CONCRETE
PIPE INDUSTRIES ...APPELLANT(S)
VERSUS
THE ASSAM STATE ELECTRICITY BOARD ...RESPONDENT(S)
1
AND
REVIEW PETITION (C) NO. 788 OF 2019
IN
CIVIL APPEAL NOS. 8445 Of 2016
M/S TRUSSES AND TOWERS (P) LTD. ...APPELLANT(S)
VERSUS
ASSAM STATE ELECTRICITY
BOARD AND ANR. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
These review petitions have been filed against
the common judgment dated 23.01.2019 passed in Civil
Appeal Nos. 8442-8443 of 2016, Civil Appeal No.8450
of 2016 and Civil Appeal No.8445 of 2016, by which
all the Civil Appeals were dismissed, sought to be
reviewed by these applications. All the review
petitions filed have raised different grounds, which
need to be considered separately.
2
Review Petition (C) Nos. 786-787 of 2019
2. To consider the grounds raised in the review
petition, few facts need to be noticed.
2.1 The Assam State Electricity Board, the
respondent has issued two supply orders to
the petitioner dated 31.03.1992 and
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.
3
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 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 Rs.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
4
petitioner may go to the Civil Court for
realisation of its dues.
2.4 The trial court on 02.02.2000 decreed the
money suit of the petitioner for
Rs.51,60,507.42 with future interest @ 23.75%
on a monthly compounding basis. RFA No.66 of
2000 was filed by the petitioner against the
judgment of the trial court. The Division
Bench made a reference to the Full Bench for
answering three points as raised by the
counsel for the appellant. Three-Judge Bench
answered the reference on 05.03.2002. The
respondent filed Special Leave Petition (C)
No. 24577 of 2002, which was subsequently
converted in Civil Appeal No.2351 of 2003.
This Court on 10.07.2012 dismissed the Civil
Appeal No.2351 of 2003 [M/s. Assam State
Electricity Board Vs. M/s. Shanti Conductors
Pvt. Ltd.] alongwith another Civil Appeal
No.2348 of 2003 [M/s. Purbanchal Cables and
Conductors Pvt. Ltd. Vs. Assam State
Electricity Board]. After dismissal of the
5
above Civil Appeals, the Division Bench of
the High Court allowed the RFA No.66 of 2000
filed by the respondents and dismissed the
suit of the petitioner.
2.5 Against the judgment of the Division Bench
dated 20.11.2012, Civil appeal Nos.8442-8443
of 2016 was filed by M/s. Shanti Conductors
(P) Ltd, the petitioner in the appeal. Two
judgments were delivered by two Hon’ble
Judges with two divergent opinion, which
judgment is reported in (2016) 16 SCC Page
13. The matter was referred to Three Judge
Bench, which heard all the appeals and vide
its judgment dated 23.01.2019 dismissed the
appeals.
3. In the suit filed by the petitioners, one of the
questions, which was framed was “Whether the suit
filed by the appellants is barred by limitation?” In
paragraph 27 of the judgment dated 23.01.2019, Seven
question, which had arisen in these appeals have been
6
noticed. Issue No.3 was “Whether money suit by M/s.
Shanti Conductors was barred by limitation?
4. Issue No.3 has been dealt from paragraphs 59 to
76 and we concluded in paragraph 76 that suit filed
by M/s. Shanti Conductors (P) Ltd. was 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
7
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 pending
consideration ought to have been excluded while
computing the limitation for money suit filed by the
petitioner. Dr. Singhvi submits that although in the
impugned judgment, this Court has considered claim of
petitioner of exclusion of time under Section 14 of
the Limitation Act but the benefit was erroneously
8
denied on the ground that writ petition was filed by
the Assam Conductors Manufacturers Association, which
is a different entity than the petitioner. He
submits that the said view is apparently erroneous
and need to be corrected. In the review petition,
apart from submissions of limitation, several other
grounds have been urged touching on the issues, which
have been considered and decided in the judgment
dated 23.01.2019. He sought to contend that Act,
1993 is retroactive and further any outstanding
amount at the time of commencement of the Act ought
to attract interest under the Act, 1993.
6. Shri Vijay Hansaria, learned senior counsel
appearing for the respondents refuted the contentions
of the petitioner and submitted that there is no
error apparent on record. The question on limitation
of Suit has been specifically considered and this
court held that suit is barred by time. Arguments
made on the strength of Section 14 has been
specifically considered and rejected. The petitioner
was not entitled for any benefit of Section 14 of the
Limitation Act since Section 14 contemplates
9
exclusion of time of the proceeding, which the
plaintiff has been prosecuting with due diligence.
He submits that plaintiff in the suit in question is
M/s. Shanti Conductors whereas petitioner in the writ
petition, which was filed in the Guwahati High Court
was association, which is a different entity and it
cannot be said that plaintiff of suit was the same
entity, which had filed the writ petition. Shri
Hansaria further submits that against the dismissal
of the writ petition, a writ appeal was filed by the
Association, which writ appeal was also subsequently
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
10
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 computed
from the time when the payment was made:
11
Provided that, save in the case of
payment of interest made before the 1st
day of January, 1928, an acknowledgment of
the payment appears in the handwriting of,
or in a writing signed by, the person
making the payment.
Explanation.—For the purposes of this
section,—
(a) where mortgaged land is in the
possession of the mortgagee, the
receipt of the rent or produce of
such land shall be deemed to be a
payment;
(b) “debt” does not include money payable
under a decree or order of a court.”
10. In the judgment dated 23.01.2019, it has been
held that the limitation of the suit filed by the
petitioner shall be governed by Article 113 of the
Limitation Act, 1963, which is three years from the
date when the right to sue accrues. In paragraph 71
of the judgment, it has been held that last supply
was completed on 04.10.1993, thus, amount became due
on 04.11.1993 and the period of three years shall
start running from 04.11.1993 and suit filed was
beyond three years. The petitioners on the strength
of Section 19 contends that since the last payment
was made on 05.03.1994, a fresh period of limitation
12
shall begin from the fresh date, i.e., 05.03.1994 and
the suit filed on 10.01.1997 was well within time.
Section 3 of the Limitation Act, 1963 deals with bar
of limitation. Section 3(1) is as follows:-
“3. Bar of limitation.—(1) Subject to the
provisions contained in sections 4 to 24
(inclusive), every suit instituted, appeal
preferred, and application made after the
prescribed period shall be dismissed,
although limitation has not been set up as
a defence.
XXXXXXXXXXXXXXXXXX”
11. The above provision makes it clear that in event,
a suit is instituted after the prescribed period, it
shall be dismissed although limitation has not been
set up as a defence. The Court by mandate of law, is
obliged to dismiss the suit, which is filed beyond
limitation even though no pleading or arguments are
raised to that effect. 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 Civil
Procedure Code. Order VII deals with plaint. Order
VII Rule 6 contains a heading “Grounds of exemption
13
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., (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
14
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 to present
Section 19 of the Limitation Act, 1963. In Sant Lal
Mahton Vs. Kamla Prasad and Others, AIR 1951 SC 477,
this Court held that for applicability of Section 20
of the Limitation Act, 1908, two conditions were
essential that the payment must be made within the
prescribed period of limitation and it must be
acknowledged by some form of writing either in the
handwriting of the payer himself or signed by him.
This Court further held that for claiming benefit of
exemption under Section 20, there has to be pleading
and proof. In paragraphs 9 and 10, following has
been laid down:-
“9. It would be clear, we think, from the
language of s. 20, Limitation Act, that to
attract its operation two conditions are
essential : first, the payment must be
made within the prescribed period of
limitation and secondly, it must be
acknowledged by some form of writing
either in the handwriting of the payer
himself or signed by him. We agree with
the Subordinate Judge that it is the
payment which really extends the period of
limitation under s. 20, Limitation Act;
but the payment has got to be proved in a
particular way and for reason of policy
the legislature insists on a written or
15
signed acknowledgment as the only proof of
payment and excludes oral testimony.
Unless, therefore, there is acknowledgment
in the required from, the payment by
itself is of no avail. The Subordinate
Judge, however, is right in holding that
while the section requires that the
payment should be made within the period
of limitation, it does not require that
the acknowledgment should also be made
within that period. To interpret the
proviso in that way would be to import
into it certain words which do not occur
there. This is the view taken by almost
all the High Courts in India and to us it
seems to be a proper view to take (See Md.
Moizuddin v. Nalini Bala A.I.R. (24) 1937
Cal 284 : I.L.R. (1937) 2 Cal. 137; Lal
Singh v. Gulab Rai 55 All 280, Venkata
Subbhu v. Appu Sundaram 17 Mad. 92, Ram
Prasad 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, O. 7, R. 6, Civil
P.C. 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 s. 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
16
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 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. Further in paragraph 21, it has been
further specifically pleaded that provisions of
Limitation Act do not apply in view of the provisions
contained in the Act, 1993 as because the Act, 1993
is having overriding effect over the Limitation Act
17
and all other Acts. Paragraph 21 of the plaint is
referred to for ready reference:-
“21. That the transaction between the
plaintiffs and the defendants are duly
maintained by the plaintiffs in the Books
of Accounts like ledger, Sale Register
etc., which are kept in the usual course
of the business of the plaintiffs and
those accounts between the plaintiffs and
the defendants are in continuity and the
interest payable by the defendants to the
plaintiffs are carried over till date. As
such the suit of the plaintiffs is in
within time. Apart from that the
provisions of the Limitation Act do not
apply in view of the provisions contained
in the Act, 1993 as because the Act of
1993 is having overriding effect over the
Limitation Act and all other Acts.”
14. There being no specific pleading by the
plaintiffs claiming any start of fresh period of
limitation, there was no occasion for defendants to
raise any reply in reference to Section 19. Shri
Abhishek Manu Singhvi, learned senior counsel has
relied on two judgments of this Court, which need to
be noticed: (i) Jiwanlal Achariya Vs. Rameshwarlal
Agarwalla, AIR 1967 SC 1118, and (ii) Kamla Devi and
Others Vs. Pt. Mani Lal Tewari and Others, (1976) 4
SCC 818. In Jiwanlal Achariya (supra), this Court
had occasion to consider Section 20 of the Limitation
18
Act, 1908, which was akin to present Section 19 of
the Limitation Act, 1963. The Court was considering
the question as to what shall be the date of a postdated cheque, whether it shall be the date on which
cheque bears 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
19
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 conditional
i.e. that the payment will be credited to
the person giving the cheque in case the
cheque is honoured. In the present case
the cheque was realised and the question
is what is the date of payment in the
circumstances of this case for the purpose
of Section 20 of the Limitation Act.
Section 20 inter alia lays down that where
payment on account of debt is made before
the expiration of the prescribed period by
the person liable to pay the debt, a fresh
period of limitation shall be computed
from the time when the payment was made.
Where therefore the payment is by cheque
and is conditional, the mere delivery of
the cheque on a particular date does not
mean that the payment was made on that
date unless the cheque was accepted as
unconditional payment. Where the cheque is
not accepted as an unconditional payment,
it can only be treated as a conditional
payment. In such a case the payment for
purposes of Section 20 would be the date
on which the cheque would be actually
payable at the earliest, assuming that it
will be honoured. Thus if in the present
case the cheque which was handed over on
February 4, 1954 bore the date February 4,
1954 and was honoured when presented to
the bank the payment must be held to have
been made on February 4, 1954, namely, the
date which the cheque bore. But if the
cheque is post-dated as in the present
20
case it is obvious that it could not be
paid till February 25, 1954 which was the
date it bore. As the payment was
conditional it would only be good when the
cheque is presented on the date it bears,
namely, February 25, 1954 and is honoured.
The earliest date therefore on which the
respondent could have realised the cheque
which he had received as conditional
payment on February 4, 1954 was 25th
February, 1954 if he had presented it on
that date and it had been honoured. The
fact that he presented it later and was
then paid is immaterial for it is the
earliest date on which the payment could
be made that would be the date where the
conditional 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
21
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 plaintiffrespondent for recovery of money on the
basis of a promissory note for Rs 10,000
executed on February 4, 1954 by the
defendant-appellant in favour of the
plaintiff-respondent. 12 per cent per
annum interest was to run on the
promissory note which was payable on
demand or to the order of the plaintiffrespondent. The suit was filed on February
22, 1957 and was thus obviously beyond
time from February 4, 1954. The plaintiffrespondent relied on a payment by cheque
on February 25, 1954 to bring the suit
within time.”
16. The judgment of this Court in Jiwanlal Achariya
(supra) does not lay down that even without pleading
all facts for claiming start of fresh period of
limitation, the plaintiff is entitled for the benefit
of Section 19. The next judgment relied by Shri
Singhvi is Kamla Devi and Others (supra), in which
22
case, this Court was considering Section 19 of the
Limitation Act, 1963. This Court relied on an
acknowledgement of payment for holding that from the
date of acknowledgment of order period of limitation
shall start. In paragraph 4 of the judgment
following has been laid down:-
“4. The last contention pressed was that
the personal decree should not have been
granted, because it was barred by
limitation. The basis for this contention
is that the payment of Rs 25, which has
been acknowledged on the registered
mortgage deed, was not itself by a
registered endorsement and, therefore, the
plaintiff was entitled to a period of
three years only, even if Section 19 may
give an extension of limitation. We see no
merit in this contention. The function of
Section 19 is to provide a later date to
count the period of limitation afresh, and
that fresh period of limitation will be
computed from the time when the
acknowledgement is signed. Nothing turns
on whether the acknowledgement is itself
registered or not. The office of Section
19 being to postpone the date of reckoning
limitation and not to create a different
substantive period of limitation, the
latter depends upon the appropriate
article of the Limitation Act which
applies to the suit. In this case, the
mortgage document was 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.
23
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 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
24
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 has
held that Limitation Act, 1963 is not applicable.
19. We may further notice that paragraph 24 of the
plaint, which is a paragraph of cause of action for
the suit, which refers to date beginning from
31.03.1992 till 05.10.1993, i.e., the beginning from
the first supply order i.e., 31.03.1992 and date of
last supply order, i.e., 05.10.1993, but cause of
action is not claimed from the date 05.03.1994, which
was the date when the last payment was received by
the petitioner. The petitioner in the plaint has
clearly not pleaded for benefit of Section 19 nor has
brought necessary facts to enable the Court to
consider the claim under Section 19. We, thus, are
of the view that petitioner is not entitled for
benefit of Section 19 of the Limitation Act and there
is no error in the judgment of this Court dated
23.01.2019 holding that the suit of the plaintiff was
barred by time.
25
20. We may also notice few submissions of Dr. Singhvi
in support of his plea that the petitioner was
entitled for benefit of Section 14. In our judgment
dated 23.01.2019, we have already taken the view that
benefit of Section 14 of Limitation Act cannot be
claimed by the plaintiff since writ petition, which
was filed by the Association was by different entity.
The question of benefit of Section 14 having been
specifically considered and rejected by this Court in
its judgment dated 23.01.2019, we do not find any
error apparent on the aforesaid ground. Moreover,
present is a case where writ petition filed by
Association was dismissed on 28.08.1997 subsequent to
filing of the suit by plaintiff on 10.01.1997.
Furthermore, after the judgment of the learned Single
Judge on 28.08.1997 Association has filed a writ
appeal challenging the said judgment, which facts
also detracts from fulfilling the conditions as
required for extending the benefit of Section 14 of
the Limitation Act.
26
21. Insofar as other submissions of Dr. Singhvi that
Act, 1993 is retroactive in nature and further amount
due at the time of the commencement of the 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 ben 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 Others Vs. Sumitri Devi and
Others, (1997) 8 SCC 715, wherein in paragraph 9
following has been laid down:-
“9. Under Order 47 Rule 1 CPC 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
CPC. In exercise of the jurisdiction under
Order 47 Rule 1 CPC 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
27
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 apparent on the face of record in
observation of the Court made in paragraph 85 of the
judgment. Some of the supplies have been made prior
to the commencement of the Act, 1993, i.e., prior to
23.09.1992. It is submitted that some of the
supplies were made after 23.09.1992, hence the
petitioner was entitled for the benefit of interest
under the Act, 1993. He submits that in ground (b),
it has been mentioned that details of supply and
reason of corresponding details have been noticed by
the trial court in the judgment dated 30.09.2002
passed in Money Suit No.32 of 1996. Reference has
been made to Annexure – P/3 at Page – 71 @ Page 88 of
28
Civil Appeal No.8450 of 2016. We have perused
Annexure P/3, the judgment of the trial court dated
30.09.2002, our attention has been invited to page 88
of the judgment, where reference of 12 bills have
been made in the judgment, which is to the following
effect:-
“Stated specifically, it is the
plaintiff’s evidence that against the
supply of poles to the defendants
different divisions on receipt of orders
from the defendants, the plaintiff
submitted a number of twelve bills for the
payment to the defendants to be reiterated
as:
Sl.
No.
Bill No. Date Gross Amount of
Bill
1. BCPI/31/91/92 20.3.92 Rs.5,02,545.92
2. BCPI/32/91/92 20.3.92 Rs.2,99,541.65
3. BCPI/33/91/92 20.3.92 Rs.2,98,344.48
4. BCPI/3/92/93 7.4.92 Rs.4,67,928.48
5. BCPI/11/92-93 8.6.92 Rs.1,08,806.45
6. BCPI/12/92-93 8.6.92 Rs.2,48,459.90
7. BCPI/26/92-93 29.9.92 Rs.17,729.50
8. BCPI/27/92-93 - Rs.79,699.77
9. BCPI/28/92-93 - Rs.1,81,497.98
10. BCPI/29/92-93 - Rs.87,249.81
11. BCPI/30/92-93 - Rs.12,782.45
12. 5% Security
Deposit Bill
- Rs.23,738.00
Total
Outstanding
Amount
Rs.23,28,324.39
29
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 dismissed.
Review Petition (C) No.788 of 2019
30
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 Civil Appeal No.8445
of 2016. The maintainability of the appeal was
specifically considered and answered in paragraphs
80. 81 and 82 of the impugned judgment. The
submission of Shri Patil is that since the Civil
Appeal No.8445 of 2016 was against the judgment of
the High Court dated 19.03.2013 by which review
petition was partly allowed by allowing interest @9%
p.a., against which judgment, the appeal was
maintainable and withdrawal of earlier appeal by the
petitioner was not fatal. The appellants were issued
31
two supply orders dated 17.02.1992 and 17.03.1992.
The suit was filed on 16.05.1994 seeking decree with
interest, which trial court decreed. Assam
Electricity Board filed a first appeal, which was
allowed by the High Court holding that bills raised
by the appellants were cleared by the Assam
Electricity Board prior to commencement of Act, 1993,
hence the appellant was not entitled for benefit of
Act, 1993. Special leave petition filed against the
judgment of the High Court dated 05.04.2001 was
permitted to be withdrawn by following order:-
“Learned counsel for the petitioner seeks
leave to withdraw the special leave
petition. He states that he will move the
High Court in review stating that it has
erred in recording that “all the bills
were paid and cleared earlier to the
commencement of the Act.” The special
leave petition is dismissed as withdrawn
accordingly.”
28. After the aforesaid judgment of this Court
permitting the petitioner to withdraw the special
leave petition, a review petition was filed, which
was partly allowed on 19.03.2013. A perusal of the
judgment dated 19.03.2013 indicates that the grounds
on which the petitioner prayed liberty to file review
32
was not proved in the review petition. The High
Court in the review judgment did not hold in favour
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 CPC,
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.
33
29. In result, Review Petition (C) Nos. 786-787 of
2019, Review Petition (C) No. 789 of 2019 and Review
Petition (C) No. 788 of 2019 are dismissed.
......................J.
( ASHOK BHUSHAN )
......................J.
( S. ABDUL NAZEER )
......................J.
( NAVIN SINHA )
New Delhi,
December 18, 2019.
34
