MIS. DISHA CONSTRUCTIONS AND ORS.versusSTATE OF GOA AND ANR.

                    [2011] 13 (ADDL.) S.C.R. 496


A            MIS. DISHA CONSTRUCTIONS AND ORS.
                                  v.
                     STATE OF GOA AND ANR.
                  (Civil Appeal No. 10763 of 2011)
                        DECEMBER 9, 2011
B
        [ASOK KUMAR GANGULY AND JAGDISH SINGH
                     KHEHAR, JJ.]

         Limitation Act, 1963: s. 15(2) - Period of limitation under
C - Computation of - Notice uls. 80, CPC given before expiry
   of limitation - Held: Jn computing the period of limitation, the
  period of notice would be mandatorily excluded since the
   notice was given within the limitation period - Code of Civil
   Procedure, 1908 - s. 80.
D
        The appellants-plaintiffs entered into an agreement
  with respondent no.1 for construction of a school. On
  competition of work on 30th September, 2006, defendant
  no.2 issued a certificate of completion dated 3rd October,
E 2006. According to the appellant, the entire payment due
  to the appellant was alleged to have not been made and
  the balance amount remained unpaid from 30th
  September, 2006. A recovery suit was filed on 24th
  October, 2009. The trial court dismissed the suit holding
  that the plaint could not be registered as it was barred
F by limitation as also in view of the fact that there was no
  compliance with Section 80, CPC. On appeal, the High
  Court held that the suit was barred by limitation but held
  that notice was duly served on respondent no.1 on 27th
  February, 2009 and two months from date of receipt
G expired on 27th April, 2009. It held that the period of
  limitation expired on 30th September, 2009, and, therefore,
  the suit which was filed on 24th October, 2009 was barred
  by limitation. The instant appeal was filed challenging the
  order of the High Court.
H                                 496
 DISHA CONSTRUCTIONS AND ORS. v. STATE OF               497
              GOA AND ANR.
    Allowing the appeal, the Court                             A

     HELD: 1.1. In the facts and circumstances of this
case, the notice under Section 80 was admittedly given
on 19th February, 2009 which was within the period of
limitation and the same was received on 27th February,         B
2009 and two months from the date of receipt expired on
27th April, 2009. The High Court has held, erroneously,
that since the suit was filed on 24th October, 2009, which
was beyond 30th September, 2009, the plaintiffs/
appellants were not entitled to the benefit of exclusion       C
statutorily provided under Section 15(2) of the Limitation
Act, 1963 and the suit is barred by limitation. The said
interpretation of the High Court was erroneous in view
of the fact that if the notice under Section 80 had been
given, say, on 29th September, 2009, in that case the
appellants according to High Court's interpretation,           D
would have been given the benefit of exclusion of time
after 30th September, 2009. Just because the appellants
gave the notice before the expiry of the period of
limitation, the benefit which is given under Section 15(2)
of the Act cannot be taken away. The said period of two        E
months must be computed and benefit of exclusion of the
said two months must be given to the appellants even if
they had given the said notice within the period of
limitation. If the appellants had given the notice after the
expiry of period of limitation, say, after 30th September,     F
2009, then possibly they could not have been given the
benefit. [Paras 12-14] [502-D-H; 503-A]

     Union of India & Ors. v. West Coast Paper Mills Ltd. &
Anr. (2004)3 SCC 458: 2004 (2) SCR 642 - relied on.            G
     1.2. Under Section 2(j) of the Act, the "period of
limitation" mectns. the period prescribed for any suit, or
other proceeding by the Schedule and the "prescribed
period" means the period of limitation computed in
accordance with the provisions of the Act. Following the       H
    498     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A said principles, the erroneous interpretation which has
   been given by the High Court will have the effect of
  denying the appellants the benefit of Section 15(2) which
  is not permissible in the eye of law. Proper interpretation
  of Section 15(2) of the Act would be that in computing the
B period of limitation, the period of notice, provided notice
  is given within the limitation period, would be mandatorily
  excluded. That would mean a suit, for which period of
  limitation is three years, would be within limitation even
  if it is filed within two months after three years, provided
c notice has been given within the limitation period. In such
  a case, the period of notice cannot be counted
  concurrently with the period of limitation. If it is done, then
  period of notice is not excluded. Any other interpretation
  would be contrary to the express mandate of Section
  15(2) of the Act. [Paras 15, 16] [503-D-H; 504-A]
0
        3. The order of the High Court is set aside and the
  suit is held to be within the period of limitation. Since, on
  the question of notice, the finding of the trial Court was
  overruled by the High Court and the High Court held that
E the notice was served on defendant No. 1 and against
  such finding there was no cross objection, the notice in
  this case was served. [Para 17] [504-8]
                          Case Law Reference:
F         2004 (2) SCR 642         relied on            Para 14

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    10763 of 2011.
      From the Judgment and Order dated 17.09.2010 of the
G High Court of Bombay at Panaji in FA No. 13 of 2010.

          Arun R. Padnekar and V.N. Raghupathy for the Appellants.

        Siddharth Bhatnagar, Pawan Kr. Bansal and T. Mahipal
H for the Respondents.
 DISHA CONSTRUCTIONS AND ORS. v. STATE OF 499
              GOA AND ANR.
    The Judgment of the Court was delivered by                    A
    GANGULY, J. 1. Heard learned counsel for the parties.

    2. Leave granted.

     3. A suit was filed by the appellants praying for payment B
of money which according to the appellants was due to them
for undertaking the construction work on behalf of the
defendants. The suit was dismissed by a judgment and order
dated 12th November, 2009 by the District Judge, North Goa,
Panaji, inter alia, holding that the plaint cannot be registered as c
it was barred by limitation as also in view of the fact that there
was no compliance with Section 80 of the Civil Procedure Code
insofar as notice on defendant No. 2 is concerned.

     4. On an appeal before the High Court, the High Court was
pleased to hold that the suit is barred by limitation but on the D
question of notice, the High Court came to a different finding
and came to the conclusion that notice was served. The material
facts of the case are as follows:
     5. The appellants-plaintiffs entered into an agreement with E
respondent No. 1 for construction of a school auditorium for Fr.
Agnelo High School under M.P. L.A.D. scheme. QA1completion
of the work on 30th September, 2006 defendant No. 2 issued
a certificate of completion dated 3rd October, 2006. Out of the
total amount of Rs.24,26,000/- the appellants plaintiffs were F
paid only Rs.18,12,000/- and therefore, there was a balance
amount to be paid. The appellants plaintiffs prayed for the
payment of the balance amount but it was denied and the same
remained unpaid from 30th September, 2006 and a suit was
filed on 24th October, 2009 for recovery of a sum of G
Rs.9,15,550/- with interest at 18%.

    6. The first question, which was examined by the High
Court, was whether notice under Section 80, CPC was required
to be given to defendant No. 2? The High Court came to the
                                                                   H
    500     SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A conclusion that such notice was necessary. The High Court
  observed as follows:

          "Since the suit was filed by the plaintiffs against defendant
          No. 2 in his official capacity, in my opinion, the defendant
B         No. 2 was certainly required to be given a notice, as
          required under Section 80 of the Civil Procedure Code and
          in absence of the same, the suit filed against him had to
          be necessarily considered as bad in law for want of notice.
          However, that cannot be said to be fatal to the entire case
          of the plaintiff because the plaintiffs suit was essentially
c         for recovery of money and as could be seen from the
          prayer clause (a) it was filed against defendant No.1. A
          similar view was held by the Apex Court in Ram Kumar
          Vs. State of Rajasthan, AIR 2008 (10) SCC 73."

D        7. It is a common ground that High Court correctly noted
    the relevant facts, which are as und9r:
        "... according to the plaintiff, the cause of action had arisen,
        as pleaded by the plaintiff, on 30/09/2006 and being so,
        the suit against defendant No. 1 had to be filed before 30/
E       912009 that is to say before the expiry of three years, that
        being the period prescribed, for filing a suit for recovery
        of money. There is no dispute that the suit was in fact filed
        on 24/10/2009. There is also no dispute that the plaintiff
        had sent notice to defendant No. 1 on 19/02/2009 which
F       was received by defendant No. 1 on 2710212009. If two
        months are computed from 2710212009, the plaitiffs were
        required to file the suit on 27/04/2009."
      8. Upon setting out the aforesaid fact, the High Court has
G noted that the notice under Section 80 was served on
  Defendant No. 1 on 27th February, 2009 and the period of two
  months had expired on 27th April, 2009. According to the High
  Court, the period of limitation expired on 30th September, 2009
  and therefore, the suit which was filed on 24th October, 2009,
H was barred by limitation.
 DISHA CONSTRUCTIONS AND ORS. v. STATE OF                      501
   GOA AND ANR. [ASOK KUMAR GANGULY, J.]
     9. Assailing the aforesaid finding, learned counsel for the A
appellants has drawn our notice to the provision of Section
15(2) of the Limitation Act which is contained under Part Ill of
the Limitation Act, 1963 (hereinafter referred to as 'the Act').
Part Ill is under the heading "Computation of period of
limitation" and Section 15 deals with "Exclusion of time in B
certain other cases". Sections 12, 13 and 14 also deal with
exclusion of time in different situations such as "Exclusion of
time in legal proceedings", "Exclusion of time in cases where
leave to sue or appeal as a pauper is applied for" and
"Exclusion of time of proceeding bona fide in Court without c
jurisdiction" respectively.

     10. Section 15(2) which is relevant for our consideration
deals with exclusion of time which is required to be given for a
notice and there is also an explanation which is appended to
Section 15. The said Section 15(2) reads as follows:                   D

     15. Exclusion of time in certain other cases.-
     (1) ...

     (2) In computign the period of limitation for any suit of which   E
     notice has been given, or for which the previous consent
     or sanction of the Government or any other authority is
     required, in accordance with the requirements of any law
     for the time being in force, the period of such notice or,
     as the case may be, the time required for obtaining such          F
     consent or sanction shall be excluded.

     Explanation.-ln excluding the time required for obtaining
     the consent or sanction of the Government or any other
     authority, the date on which the application was made for         G
     obtaining the consent or sanction and the date of receipt
     of the order of the Government or other authority shall both
     be counted.

     11. It may be noted that the present Section 15(2) is a little
                                                                       H
    502      SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A more comprehensive than the previous Section 15(2) of the
  Limitation Act, 1908 which reads as follows:

          15.Exclusion of time during which proceedings are
          suspended.-
B         (1) ...

          (2) In computing the period of limitation prescribed for any
          suit of which notice has been given in accordance with the
          requirements of any enactment for the time being in force,
c         the period of such notice shall be excluded.

        12. We are of the view that in the facts and circumstances
  of this case, the notice under Section 80 was admittedly given
  on 19th February, 2009 which is within the period of limitation
  and the same was received on 27th February, 2009 and two
D months from the date of receipt expired on 27th April, 2009:

       13. The High Court has held, in our view erroneously, that
  since the suit was filed on 24th October, 2009, which is beyond
  30th September, 2009, the plaintiffs appellants are not entitled
E to the benefit of exclusion statutorily provided under Section
  15(2) of the Act and the suit is barred by limitation.

          14. The said interpretation of the High Court is erroneous
    in view of the fact that if the notice under Section 80 had been
F given, say, on 29th September, 2009, in that case the
    appellants according to High Court's interpretation, would have
    been given the benefit of exclusion of time after 30th
    September, 2009. Just because the appellants gave the notice
    before the expiry of the period of limitation, the benefit which
G is given under Section 15(2) of the Act cannot be taken away.
    We are of the view that the said period of two months must be
  . computed and benefit of exclusion of the said two months must
    be given to the appellants even if they had given the said notice
    within the period of limitation. If the appellants had given the
    notice after the expiry of period of limitation, say, after 30th
H
 DISHA CONSTRUCTIONS AND ORS. v. STATE OF                     503
   GOA AND ANR. [ASOK KUMAR GANGULY, J.]
September, 2009, then possibly they could not have been given         A
the benefit. In this connection, we may refer to the decision of
this Court in Union of India & Ors. Vs. West Coast Paper Mills
Ltd. & Anr. (2004) 3 SCC 458, where in a somewhat similar
situation," this Court has held as follows:

           "Any circumstance, legal or factual, which inhibits        B
     entertainment or consideration by the Court of the dispute
     on the merits comes within the scope of the Section and
     a liberal touch must inform the interpretation of the
     Limitation Act which deprives the remedy of one who has
     a~~-                                                             C
     15. We are in respectful agreement with the aforesaid
principles laid down by this Court though in the context of
considering Section 14 of the Limitation Act. We are of the view
that the same principles should be applied while considering          D
the provision of Section 15(2) of the Limitation Act. The statutory
provision in this connection is very clear and in the definition
clause also it has been made clear in Section 20) of the Act.
Under Section 20) of the Act, the "period of limitation" means
the period prescribed for any suit, or other proceeding by the        E
Schedule and the "prescribed period" means the period of
limitation computed in accordance with the provisions of the
Act. If we follow the aforesaid principles, as we must, we find
that the erroneous interpretation which has been given by the
High Court will have the effect of denying the appellants the
benefit of Section 15(2) which is not permissible in the eye of       F
law.

     16. ln our view, proper interpretatiort of_,~!3ction 15(2) of
the Act would be that in computing the period of ~~ation, the
period of notice, provided notice is given within the llmitation      G
period, would be mandatorily excluded. That would mean a suit,
for which period of limitation is three years, would be within
limitation even if it is filed within two months after three years,
provided notice has been given within the limitation period. In
such a case, the period of notice cannot be counted                   H
    504 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.

A concurrently with the period of limitation. If it is done, then period
  of notice is not excluded. Any other interpretation would be
  contrary to the express mandate of Section 15(2) of the Act.

       17. We, therefore, set aside the order of the Hi,gh Court
  and we hold that the suit is within the period of limitation. Since,
8 on the question of notice, the finding of the trial Court has been
  overruled by the High Court and the High Court has held that
  the notice has been served on defendant No. 1 and against
  such finding there is no cross objection, we are of the view that
  the notice in this case has been served.
c
        18. Therefore, we direct that the suit may be heard out now
    on merits by the trial Court as early as possible. We, however,
    do not make any observation on the merits of the controversy
    between the parties.
D        19. The appeal is accordingly allowed. No costs.
    D.G.·                                            Appeal allowed.