Limitation Bars Remedy But Does Not Destroy

Limitation bars remedy but does not destroy the right

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 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. So, the law of limitation does not bar a defence, it only bars action. 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. [first national bank ltd. verses seth sandal,]. Salient features of the act 1. Application of the act The act applies to all civil proceedings and some special criminal proceedings which can be taken in a court of law unless its application is excluded by any enactment. the act extends to whole of india except the state of jammu & kashmir. 2. Proceedings under special act The provisions of the limitation act apply only to proceeding in "courts" and not to appeals or applications before bodies other than courts such as quasi-judicial tribunals or executive authorities, notwithstanding the fact that such bodies or

authorities may be vested with certain specified powers conferred on courts under the code of civil or criminal procedure. but even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of section 5 of the limitation act shall be applicable to such proceeding. 3. Limitation only applies to institution of proceedings, not to their continuance The bar of limitation arises only where a suit is instituted, an appeal is preferred or an application is made after the prescribed period of limitation. thus, the bar only applies where a proceeding has been instituted after the period of limitation. the bar does not apply to steps which constitute a mere continuation of pending proceeding. thus, where an application for execution has been filed within the period of limitation, but subsequently, an application is made to continue the execution proceeding, the latter application is not subject to any period of limitation. similarly, where a suit is validly instituted, but the plaint is returned for some purpose and represented, such representation is only a continuation of the suit and does not affect the question of limitation. 4. Limitation and writs under the constitution The subject of limitation is dealt with in list iii i.e. concurrent list vide entry 13 of the constitution of india. the legislature may, without violating the fundamental rights, enact statutes

prescribing limitation within which actions may be brought by varying or changing the existing rules of limitation either by shortening or extending time, provided a reasonable time is allowed for enforcement of the existing right of action which would become barred under the amended statute. Constitutional validity of the limitation act, 1963 In tilokchand motichand verses. h.p. munshi, supreme court held that the statute of limitation is not unconstitutional since it applies to right of action in future. it is a shield and not a weapon of offence. court further held that the state cannot place any hindrance by prescribing a period of limitation in the way of an aggrieved person seeking to approach the supreme court of india under article 32 of the constitution. to put curbs in the way of enforcement of fundamental rights through legislative action might well be questioned under article 13(2) of the constitution. court further held that a writ petition filed before the supreme court is not a suit and is also not a petition or application to which the limitation act applies, so limitation act is not applied to writs. 5. Act not to apply to all applications Although the limitation act 1963 gives a wider definition to application yet it is clear that only certain and not all applications are covered by the act despite the fact that the words "other proceedings were added in the long title of the act in 1963. the following applications are not covered by the act:—

(1) an application for a succession certificate to collect the debts due to the estate of a deceased person. (janaki verses. kesavalu, 8 mad 207 (208) (2) an application for probate or letters of administration (kalinath verses. nagendra nath,) (3) an application for revocation of a probate. (ashwini kumar verses. sukhaharan). (4) an application under the religious endowments act or an application for the appointment of new trustees. (janaki verses. kesavalu,) (5) an application to a court to exercise the functions of a ministerial character example. an application for the grant of sale certificate (kylasa verses. ramasami) (6) an application for a final decree in a suit for partition (sudarsahn pande verses. lakshmidhar pande,) (7) an application for election dispute (venkateswar rao verses. narasimha reddy,) (8) an application to invoke the jurisdiction of the courts under section 151 of the civil procedure code (beeravu verses. kathiyamma, ) (9) an application to a court to do what the court is bound to do. (darbo verses. kesho,). 6. Prescribed period cannot be extended or curtailed by consent Parties cannot by consent or agreement, extend or curtail the period of limitation. similarly, the parties cannot waive or contract themselves out of the law of limitation. shorter term: any agreement which curtail the period of limitation provided by this act will be void under section 28 of

the indian contract act as it amounts to restraint of legal proceedings. extended term: any agreement which extends the period of limitation will be void under section 23 of the indian contract act as it is against the public policy and would defeat the provisions of law. no one can contract himself out of the statute of limitation, and consequently where the result of a compromise between the decree holder and the judgement-debtor was that the limitation provided by law is extended, it was open to the judgementdebtor to plead that the decree-holder application for exemption was barred by limitation [goobardhan verses. dan dayal]. 7. Religious endowments and government The provision of the limitation act apply without distinction to suits concerning both sacred and secular property and makes no difference if the plaintiffs in such suits are divine or human. even the government is not entitled to an exemption from the provisions of the limitation act. 8. Arbitration proceedings Section 43 of the arbitration act, 1996 provides that the provisions of the limitation act 1963 shall apply to any arbitration proceedings under the act. so, under the arbitration and conciliation act, 1996, the arbitral tribunal has the duty to ascertain if the claim made by the claimant before the tribunal is barred by limitation or not.

9. Limitation bars suit, not defence The limitation does not bar plea as a defence. a defendant in a suit can set up right in a defence though he would not have enforced that right by a suit and the ground of defence cannot become stale or barred by limitation. the statute of limitation prescribes only the periods within which legal actions have to be commenced, and not any period for setting up claims by way of defence to such actions. thus, where by the time the mortgagor initiated proceedings for redeeming the properties, the mortgagee as remedy to enforce his claim by an action in a court of law has become time-barred, :he mortgagee can put forth his possessory lien over the properties as i e fence against the claim for redemption and insist on payment of debts egitimately due to him. such defences are not to be taken into consideration, it the instance of the party prejudicially affected, at the time of hearing the ippeal. it is important to take note of the fact that the court must be sure hat on the facts established on the evidence on record, the suit is not barred and only thereafter it can exercise jurisdiction in a case even if plea of imitation has not been taken up as a defence. 10. Res judicata and limitation The doctrine of res-judicata applies equally to the decision on a question of limitation as in the case of decision on any other point. hence, the decision on a question of limitation may be concluded in particular way by reason of the operation of the above doctrine. however, it depends on the acts and circumstances of each case whether the question of limitation is res-judicata or not.

Difference between limitation and prescription 1. A Law of Limitation prescribes the time after which a suit or other proceedings cannot be instituted in a court of law. a law of prescription prescribes the time at the expiration of which some substantive right may be acquired or may become extinguished. prescription has, therefore, a twofold aspect: as creating a right and extinguishing a right. 2. A Law of Limitation merely affects the remedy, it does not touch the right of a person to the debt, damage, goods, person, property, etc. but prescription extinguishes the right of action. limitation is considered to be a species of prescription. 3. A Law of Limitation, as merely bars the remedy, is a part of the procedural or adjective law. a law of prescription, as it affects the substantive right itself, is a part of the substantive law. A Law of prescription lays down the period at the expiry of which a substantive or primary right is, under certain circumstances, acquired or extinguished. the term 'prescription' as used in the limitation act, excludes, and is opposed to limitation. a person's right is extinguished by prescription when he cannot assert it either judicially or extra-judicially. it perishes so far as he is concerned. but since a mode of losing rights is also often a mode of acquiring them the right is virtually, though not expressly or directly, transferred to the person who claims it by prescription. where prescription extinguishes the substantive right itself, the remedy is necessarily lost or barred. a prescription such as that dealt with by section 27 is an distinctive prescription. where prescription not only bars the remedy, and extinguishes the right of the original holder, but

directly transfers his right to the opposing claimant, the latter acquires a title against all the world. such a prescription is called acquisitive prescription. a prescription such as that referred to in section 25 belongs to this class. Difference between limitation and estoppel Limitation and Estoppel are different things, though the operation of each is to prevent a party from asserting his right at law, in the one case by shutting out a suit, and in the other case by shutting out evidence. 1. Limitation is a rule of law. it comes into operation merely because of the passivity of the plaintiff in not asserting his rights quickly enough. It is not necessary, in order to avail oneself of this defence, that there should have been any acts or representations done or made by the other party. estoppel is a rule of evidence; it arises by reason of some act, statement or omission intentionally made by a party, 2. Again estoppel may apply to either party; a defendant may be estopped from raising a particular defence, as much as a plaintiff may be estopped from setting up a particular case. Limitation, however, does not apply in a matter of defence. Difference between limitation and laches Laches means slackness or negligence, and hence, willful negligence in asserting one's right. the doctrine of laches is based on the

principle, delay defeats equity. these are following difference between limitation & laches: 1. The basis of the doctrine of laches is the same as that of the law of limitation. in the latter case, however, a suit is dismissed if not brought within the prescribed time and no other matters are taken into consideration. in the case of laches, there is no fixed period of time; the court will look into facts of each particular case to see (a) whether there was an unreasonable delay on the plaintiffs part; (b) whether the plaintiffs delay has resulted in loss or destruction of evidence; and (c) whether the plaintiff has, by his delay or omission, induced the defendant to incur an expense or to alter his position. 2. In the case of limitation, the ignorance or knowledge of the plaintiff with respect to his right is, in most cases, immaterial. on the other hand, in order to defeat a claim on the ground of laches, it would ordinarily be necessary to show that the plaintiff had a sufficient knowledge of the facts, constituting his title to the relief, and that he knowingly abstained himself to assert his rights. 3. Limitation is based on consideration of public policy whereas the doctrine of laches is based on equitable consideration. limitation rests upon express law, laches depends upon general principles.

Difference between laches and acquiescence

The doctrine of laches and doctrine of acquiescence have their origin in the english courts of equity and applied to those cases which were not covered by the statutes. laches is just a type of acquiescence. in kisandas premchand verses. jivatlal protapshi & co., court observed, laches mean doing nothing. lapse of time or delay in suing, unaccounted for by disability or other circumstances constitutes laches. delay in seeking equitable remedy is technically known as laches and will disentitle the claimant to establish his claim even if the claim is not disputed. the domain of acquiescence is large while that of laches is very small. Laches is merely passive, while acquiescence implies almost active consent. where there is a statute of limitation, the objection of laches does not apply until the expiration of time allowed by the statute. but acquiescence is a different thing; it means more than laches. if a party who could object does not do so and knowingly permits another to incur an expense in doing an act under a belief that it would not be objected to, a kind of permission may be said to have been given to another to alter his condition, and he may be said to acquiesce. Acquiescence consist of tripartite factors which are, knowledge, capacity and freedom, i.e., a person acquiescing must be fully cognizant of his right to dispute the claim, he must be under no disability and lastly, must be free from all undue influence or pressure. mere delay is not, by itself, fatal to a suit but delay which amounts to a waiver of the plaintiffs right by acquiescence or conduct inducing a party to place himself in a position in which he would not otherwise have placed himself, may be sufficient to

disqualify a plaintiff from asserting rights which are not actually barred by limitation.

Note: In India, the statute of limitation being a complete code it has been said in many cases that the equitable doctrine of laches and acquiescence does not apply to suits for which a period of limitation is provided by the limitation act.