Cpc Project

CIVIL PROCEDURE WITH LIMITATION ACT PROJECT REPORT

LIMITATION BARS THE REMEDY BUT DOES NOT EXTENGUISH THE RIGHT

SUBMITTED TO: SUBMITTED BY: Dr. KARAN JAWANDA MADHULIKA NEGI UILS ROLL NO. 54/16 PANJAB UNIVERSITY B.A.LLB. (Hons.)

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CHANDIGARH A

SECTION

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ACKNOWLEDGEMENT I have taken efforts in this project. However, it would not have been possible without the kind support and help of many individuals . I would like to extend my sincere thanks to all of them. I am highly indebted to our respected teacher for her guidance and constant supervision as well as for providing necessary information regarding the project & also for her support in completing the project. I would like to express my gratitude towards my parents & my friends for their kind co-operation and encouragement which help me in completion of this project. I would like to express my special gratitude and thanks to our teacher for giving me such attention and time. My thanks and appreciations also go to people who have willingly helped me out with their abilities.

-Madhulika Negi

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INDEX        

Introduction History of Limitation Act Object of the Act Limitation bars remedy Limitation does not bar defence Exception to the rule Conclusion References

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TABLE OF CASES    

Against the Judgement in As 15/1996 v. K.J Anthony Bombay Dyeing and Manufacturing v. State of Bombay First National Bank Ltd. v. Seth Santlal Punjab National Bank and other v. Surendera Prasad Sinha  Rullia Ram Hakim Rai v. Fateh Singh  Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavansh

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INTRODUCTION There are two types of laws: Procedural laws and substantive law. Substantive law provides the rights and liabilities of the person whereas procedural law provides the procedure to be followed for the enforcement of those rights and liabilities as given under substantive laws. But it is not true that procedural law does not provide the right to the person. For example in case of adverse possession for more than 20 yrs continuously without any interference gives the right of ownership to the person.  Limitation Act, 1963 is also one of the procedural laws. Limitation Act provides the bar to the suit, appeal & application to be filed by the person. But on the other hand it doesn’t bars the action. It is based on the 2 legal maxims: 1.

Interest Reipublicae ut sit finis litium means that the interest of the state requires that there should be an end to litigation. 2. Vigilantibus non dormantibus jura subveniunt means that the law assists the person who is vigilant for his right not for the dormant person who sleeps over his rights. The law of limitation only bars the remedy when the period of limitation expires, but it doesn’t destroys the right that cannot be enforced by the judicial process. Thus, if any claim is satisfied outside the court after the expiry of limitation period, it is not illegal. Limitation Act protects the innocent persons from the stale claims being hung on their heads for a long time, only a vigilant person or a bonafide claimant will come to the court within the prescribed period for the enforcement of his right.

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HISTORY OF LIMITATION ACT There was no specific, uniform Law of Limitation till 1859. Under Hindu jurisprudence there was no law of limitation, since main source of earning of people was agriculture, so concentration was more on land and rights attached thereto so there was law of prescription prescribing certain period of time for acquisition of title by prescription. Before 1859, law of limitation was being administered in two ways, firstly in territories within original jurisdiction of courts established by Royal Charter in the Presidency towns of Calcutta, Madras and Bombay, the English law of Limitation and in the mofusil courts, the law as laid down by the Regulations was administered. It is in 1859 first specific enactment on law of Limitation was introduced which was applicable to all courts. The Act XIV of 1859 was then replaced by Limitation Act of 1871 which provided for limitation on Suits, appeals and certain applications to courts. This Act also provided for acquisition of easements and extinguishment of rights on land and hereditary office at the determination of certain period. Act of 1871 was then replaced by Act of 1877. Limitation Act of 1877 was more comprehensive. It provided for law of prescription not only in respect of land or hereditary office but also to other moveable properties. Later Act 1877 was also replaced by Act no IX of 1908, which was more or less repeating the provisions of Act of 1877. The Act of 1908 remained in force till the present Act No. 36 of 1963 was passed. For many years the Government of the Republic of India has been much anxious to overhaul the provisions of the age-old

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Limitation Act, IX of 1908, which had been the subject of some controversial discussion at the Bench and the Bar. On the recommendation of the Law Commission, the old Act was repealed and the new Limitation Act came into force with effect from January 1, 1964. The Limitation Act, 1963 received the assent of the President on the 5th October, 1963 and was published in the Gazette of India on the same date. The present Act is a unique piece of legislation which contains several provisions of far-reaching nature. It gives statutory expression to the changes recommended by the Law Commission. It does not contain merely drafting changes but in many aspects it is a new enactment.

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OBJECT OF THE ACT The object and utility of law of limitation has never been a Matter of doubt or dispute. A law of limitation is a statute of repose, peace and justice. It is a matter of response because it extinguishes state demands and quiets titles . It seeks to obtain peace and security by raising a presumption that right not exercised for a long time is non existent. It is intended to do justice in as much as it takes into consideration ground reality that the right of parties should not be in state of constant doubt, dispute or uncertainty. It is founded on public policy with aim of securing peace, to suppress fraud and perjury, to quicken diligence and to prevent oppression. Statutes on limitation are based on to well known legal maxims : I. The interest of the state requires that there should be an end to litigation (interest reipublicae ut sit finis litium) II. The law assists the vigilante and not one who sleeps over his rights(Vigilantibus non dormientibus jura subveninunt) There are three cogent ground in support of the law of limitation : I. long dormant claims have more of cruelty then justice in them ; II. a defendant might have lost evidence to disprove a state claim ; and III. a person with good cause of action should pursue it within reasonable diligence . Rule of limitation Are not meant to destroy the rights of the

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parties. They are meant to ensure that parties do not resort to dilatory tactics but seek there remedy promptly .

LIMITATION BARS REMEDY Section 3 lays down the general rule that if any suit, appeal or application is brought before the Court after the expiry of the prescribed time then the court shall dismiss such suit, appeal or application as time-barred. The law of limitation only bars the judicial remedy and does not extinguish the right. In other words, It means that the statute of limitation prescribes only the period within which legal proceedings have to be initiated. It does not restrict any period for setting up a defence to such actions. Hence, the original right to suit is not barred. The law of limitation, being procedural law, merely bars the remedy. It does not destroy primary or substantive right accrued in favour of a party. The judicial remedy available for enforcement of such right is Bard, but the substantive right survives and continues to be available if there are other ways on means for enforcing it. Hence, if a debtor pays to his creditor time barred debt, he cannot claim it back on the ground that the creditor could not have find a suit against the debtor for recovery of the said amount. Similarly, if a debtor owes several debts to a creditor, some of which are barred by limitation, and makes payment of some amount without any specification and the creditor adjusts the amount towards time barred debt , the debtor cannot object nor he can claim such amount. A creditor me

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obtain payment of time barred debt by a permissible mode, for example a right of lien, valid contract, etc.

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In Punjab National Bank and other v. Surendera Prasad Sinha, AIR 1992 SC 1815 Section 3 of Limitation Act bars the remedy but does not destroy the right to which the remedy relates to. Right to debt continues to exist notwithstanding remedy is barred. Right can be exercised in any other manner than by means of suit. It is settled law that the creditor would be entitled to adjust, from payment of sum by debtor towards time barred debt. It is also equally settled law that creditor when he is in possession of adequate security debt due could be adjusted from security in his possession. In case of Against the Judgement in As 15/1996 v. K.J Anthony, the Court held that a defendant in a suit can put forward any defence though such defence may not be enforceable in the court, for being barred by limitation. It was held in Bombay Dyeing and Manufacturing v. State of Bombay that the statute of limitations only bars the remedy but does not extinguish the debt.

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LIMITATION DOES NOT BAR DEFENCE The law of limitation bars an action and not a defence. It is, therefore, open to the defendant in a suit filed by the plaintiff to set up a please in defence which he may not be able to enforce by filing a suit . Thus, in a voidable transaction, the defendant may raise any plea for enforcing the transaction, though he could not have filed suit for its enforcement on such plea. Similarly, in a suit to set aside a decree obtained by fraud, the fraudulent character of decree can be set up as a defence by the defendant, even after expiry of the period of limitation for filling a suit. Again, wrong description of property in the sale deed does not debar the defendant purchaser from setting up a defence and from protecting his possession by showing that the property sold to him was the real property sold, but it was wrongly described in the sale deed. Again, and attorney can avail right of lien for his fees, although a suit might have been time barred. But if the expiry of limitation destroys the right itself, it can neither be enforced by a suit nor can be set up as a defence . Thus, the defendant cannot raise a plea in defence of some inchoate or imperfect right, establishment of which depends upon a suit within a particular and the said has expired within which no suit is filed.

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The law of limitation does not restrict the defendant if he raises a legitimate plea in his defence even though the suit is timebarred. It was held in Rullia Ram Hakim Rai v. Fateh Singh, the bar of limitation does not stand in the way of defence. It only bars action and it is only its recovery that is time-barred. There is no provision that prohibits or prevents a debtor from clearing his time-barred outstandings. The Supreme Court observed in Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi, the Limitation Act takes away the plaintiff’s remedy to enforce his rights by bringing an action in a court of law, but it does not place any restriction on the defendant to put forward his defence though such defence is barred by limitation and is unenforceable in the Court.

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EXCEPETION TO THE RULE Section 27 of the limitation act is, however, an exception to the general rule that the act bars only the remedy and does not extinguish the right. in a suit for possession of any property on the determination of the period of limitation not only the remedy but the right also is extinguished under section 27 because it cannot be recovered after the expiration of the period of limitation provided for instituting a suit for its recovery. after a debt becomes barred a person is still deemed to owe and it does not cease to be due . The Section provides: "At the determination of the period hereby limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished." In First National Bank Ltd. v. Seth Santlal, AIR 1954 Punjab 328 It was observed : "Section 27 of the Limitation Act is, however, an exception to the general rule that in personal actions, the Limitation Act bars only the remedy and does not extinguish the right. In a suit for possession of any property on the determination of the period of limitation not only the remedy but the right also, is extinguished under Section 27. But a debt does not cease to be due, because it cannot be recovered after the expiration of the period of limitation provided for instituting a suit for its recovery. After a debt becomes barred a person is still deemed to owe."

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CONCLUSION The law of limitation bars the remedy in a court of law only when the period of limitation has expired, but it does not extinguish the right that cannot be enforced by judicial process. thus if a claim is satisfied outside the court of law after the expiry of period of limitation, that is not illegal. The intention of the law of limitation is, not to give a right where there is none, but to impose a bar after a certain period to institute suit to enforce an existing right. the object is to compel litigants to be diligent in seeking remedies in courts of law by prohibiting stale claims. it is to help the bona fide claimant and to prevent fraud being practiced by people upon innocent persons by keeping actions hanging on them for a long time. Application cannot be maintained in a court of justice to enforce a right but it does not destroy the right itself, example., a from time to time advances money to b and each time he advances money to b, he enters the item advanced in his account book. Let us suppose he has advanced six items of money on six different dates, each succeeding item being separated from the previous one by a period of six months. four years after the first advance was made, the period of three years fixed for the filing of the suit for the recovery of the first item of advance has expired and the remedy of a for filing a suit is barred by limitation. Here although the remedy is barred, the right of a to recover the amount of the first advance is not extinguished, but still survives although his right to file the suit for the recovery thereof is barred by limitation. therefore, if b, the debtor, pays the amount of the first advance after it has become barred, or if he pays an amount without

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specifying towards which of the six advances it might be credited and the creditor applies it, in the payment of the first item of advance, the creditor will be fully justified in la\v in doing so and the payment would not be allowed to be recalled on the ground of failure of consideration. a barred debt is a good consideration for a written promise to pay it.

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REFERENCES 

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https://www.lawfinderlive.com/bts4/LIMITAT.htm? AspxAutoDetectCookieSupport=1 https://indiankanoon.org/search/?formInput=limitation %20bars%20remedy&pagenum=5 http://www.legalservicesindia.com/article/543/Condonati on-of-Delay-and-Law-of-limitation.html Civil Procedure with Limitation Act,1963; C.K.Takwani; Eighth Edition;2019; Eastern Book Company Pvt. Ltd.