Holding

Article 535 of the Portuguese Civil Code is impliedly repealed and the Limitation Act, 1963 governs the limitation period, rendering the suit barred.

Summary

Syndicate Bank filed a suit in Goa to recover a loan advanced to Mr. Prabha D. Naik and others, alleging default on a promissory note. The trial court and the High Court dismissed the suit as barred by limitation, holding that the Portuguese Civil Code's Article 535 governed limitation in Goa. The Bank appealed, contending that the Limitation Act, 1963 should apply and that the Portuguese code had been implicitly repealed by the Indian Contract Act, 1872 and the Negotiable Instruments Act, 1881. The Supreme Court examined whether Article 535 could be treated as a special/local law under Section 29(2) of the Limitation Act and applied the doctrine of implied repeal. The Court held that the Portuguese code's limitation provisions were impliedly repealed and that the Limitation Act, 1963 is the governing law of limitation for the cause of action. Consequently, the suit remained barred by limitation and the appeal was dismissed.

Issues considered

The applicability of Article 535 of the Portuguese Civil Code as a local law of limitation in Goa, Daman & Diu.
Whether the Portuguese Civil Code's limitation provisions are impliedly repealed by the Indian Contract Act, 1872 and the Negotiable Instruments Act, 1881.
Whether Section 29(2) of the Limitation Act, 1963 saves the Portuguese Civil Code as a special law for limitation purposes.
The correct law of limitation to be applied to a cause of action arising under the Indian Contract Act and Negotiable Instruments Act in Goa.

Legislation cited

Goa, Daman and Diu (Administration) Act, 1962s. 5
Indian Contract Act, 1872
Limitation Act, 1963s. 1, s. 29(2), s. 4-24
Negotiable Instruments Act, 1881

Subjects

LimitationPortuguese Civil CodeImplied repealContract ActNegotiable Instruments ActGoa lawSection 29(2)Local lawLoan recovery

Judgment

A SYNDICATE BANK
v. >
MR. PRABHA D. NAIK AND ANR. ETC.

MARCH 26, 2001

B [B.N. KIRPAL, U.C. BANERJEE AND BRIJESH KUMAR, JJ.]

limitation Act, 1963-Section 29(2)-Portuguese Civil Cod£-Article
535-Default in repayment of loan granted by Bank in Goa-Suit for recov-
ery-Law of limitation-Dismissal of suit being barred by limitation under
C limitation Act-Application of Portuguese Civil Code for limitation-Held,
Civil Code has no application with regard to limitation as it has been impliedly
repealed by two Central enactments, the Indian Contract Act, 1872 and
Negotiable lnstruments Act, 1881-limitation Act rightly applied-Goa, Daman
and Diu Administration, 1962-Section 5.

D Interpretation of Statutes :

Doctrine of implied repeal-Held, the doctrine is applied when there is
no express repeal by way of special legislation.

Respondent defaulted in repayment of loan granted by appellant·
E Bank in Goa. The Bank filed a suit for recovery of amount with future
interest before Trial Court. The suit was dismissed by the Trial Court as
having barred by limitation under Limitation Act, 1963. High Court also
dismissed the appeal on that ground. Hence the appeal.

The Appellant-Bank contended that the law of limitation which is
F applicable in Goa is the Portuguese Civil Code and not the Limitation Act,
1963; that the Code continues to be operative as it has not been repealed by
a specific legislation as required by Section 5 of Goa, Daman and Diu
Administration, 1962; that the Portuguese Civil Code has not been ex·
pressly repealed by any repealing statute; that the Limitation Act, 1963
G expressly repeals the Limitation Act, 1908 and not the local laws like the
Code; that. the common man in Goa continues to take guidance from the
Code for bis day to day business and other personal obligations creating
rights and liabilities.

Respondents contended that the Limitation Act is applicable in Goa
H as it extends to the whole of India except the State of Jammu and Kashmir
714
SYNDICATE BANK v. MR. PRABHA D. NAIK 715
as perSection 1(2) of the Act. A
Dismissing the appeal, the Court

HELD : 1. Article 535 of the Portuguese Civil Code containing the
provisions of limitation in Chapter ill regulating the contracts stands
replaced by the Indian Contract Act. The prescribed period for limitation B
pertaining to the contracts being in the same Chapter under Contract Act
cannot be said to be surviving as an independent provision rather than
going along with the other provisions of the Contract which by reason of
adaptation of Contract Act stands replaced. It is thus said to be an implied
repeal. The necessity of having an express repeal was never felt by reason
of the factum of adaptation of Indian Contract Act in so far as Chapter II
c
is concerned. Either the Chapter survive in il• entirety or it peri•hes in its
all spheres - it is one chapter dealing with contract and prescribed the
period of enforcement of the same. No dissection is possible. [723-B-D]

1.2. The cause of action of the suit viz. money lent and advanced in D
terms of the agreement stands squarely governed by the Contract Act read
with the Negotiable Instrument Act by reason of the admitted execution of
a Promissory Note and as such cannot he said to be governed by the Code.
In the event the right to initiate the proceedings goes out of the ambit of the
Code, the latter cannot govern its enforceability. The Civil Code is a
complete Code in itself. Its applicability was not restrictive in any way
E
whatsoever prior to the issuance of notification adapting into a State Law,
the two statutes. The Portuguese Civil Code cannot he termed to he a
statute of limitation, as such it can not have its operation extended to
prevent the enforcement of independently existing rights of action. The
Civil Code cannot but he ascribed to be a compilation of comprehensive F
law in the State which meets the need of the situation alongwith a specific
period for extinguishment of the same. Either the Code applies in its
entirety or it does not - there is no half way about it. (724-F-H; 725-A-B]

2.1. By reason of the existence of right under Indian Law, i.e. Con-
tract Act and Negotiable Instrument Act, the extinction of remedy under G
the Portuguese Law cannot hut be deemed to he impliedly repealed. The
doctrine of implied repeal has to take its place in the facts of the matter
under consideration. The doctrine of implied repeal is not to be favoured
but where a particular provision could not have been intended
to subsist and if let subsisting, the rO'ultant effect would be an absurdity. H
716 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Courts cannot but declare if to be so on the ground of repeal by implication.
[725-G-H; 726-A]

2.2. If there was any intent of having the local law being prevalent
pertaining to the question of limitation only, there would have been an
express exclusion in the Limitation Act under Section 1(2) as was made for
B the State of Jammu and Kashmir and in its absence neither contra inten·
tion can he deduced nor by contra inference can be drawn. In any event,
Portuguese Civil Code could not be read to be providing a distinct and
separate period of limitation for a cause of action arising under the Indian
Contract Act or under the Negotiable Instrument Act since the Civil Code
c ought to be read as one instrument and cause of action arising therefrom
ought only to be governed thereunder and not otherwise. The entire Civil
Code ought to be treated as a local law or special law including the
provisions pertaining to the question of limitation for enforcement of the
right arising under that particular Civil Code and not de hors the same. A
contra approach to the issue will not only yield to an absurdity but render
D the law of the land wholly inappropriate. [726-G-H; 727-A·B]
3. On the wake of the factum of the Limitation Act coming into
existence from 1.1.1964, Article 535 of the Portuguese Civil Code cannot
but be termed to be impliedly repealed. There is one general law of Iimita·
tion for the entire country being the Limitation Act of 1963, and the
E Portuguese Civil Code cannot be termed to be a local law or a special law
applicable to the State of Goa, Daman & Diu prescribing a different period
oflimitation within the meaning of Section 29(2) of the Limitation Act and
in any event, question of saving of local law under the Limitation Act of
1963 does not and cannot arise. [728-D-F]
F Justiniano Augusto De Piedade Barreto v. Antonio Vicente Da Fonseca
& Ors., AIR (1979) SC 984, overruled.

C. Beepathuma & Ors. v. Velamri Shankaranarayana Kadamolithaya &
Ors., AIR (1965) SC 241 and Mis. Cadar Constructions v. Mis. Tara Tiies,
AIR (1984) Born. 258, referred to.
G
Spearv. Hartly, [1800] 3E.sl 81170 ER 545 and Mckain v. R.W. Miller
& Co. (South Australia) Pty. Ltd., (174 CLR 1991-92 Page 1), referred to.

B.B. Mitra's Limitation Act (20th Ed.); Corpus Juris Secundum (Vol.
72); Chesistiare and North, Private International Limited 11th Ed.: Mcleod:
H conflict of Laws, referred to.
SYNDICATE BANK v. MR. PRABHA D. NAIK [BANERJEE, J.] 717
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4944 of 1989. A

From the Judgment and Order dated 8.10.85 of the Bombay High Court
in L.P.A. No. 22 of 1985.

WITH
B
Civil Appeal No. 4945 of 1989.

O.P. Sharma, Abhishek Atrey, K.R. Gupta and R.C. Gubrele for the
Appellant.

Dhruv Mehta, Ms. Shobha and S.K. Mehta for the Respondents.
c
The Judgment of the Court was delivered by

BANERJEE, J. The applicability of the provisions of Indian Limita-
tion Act vis-a-vis the interpretation of Article 535 of the Portuguese Civil
Code, said to be the governing law of Limitation in the State of Goa, Daman
& Diu, is the focal point for consideration in this appeal. Needless to record
D
that Section 29(2) of the Limitation Act, 1963 contains the provisions for
savings of the Limitation Act which expressly provides that the provisions
contained in Sections 4 to 24 (both inclusive) shall apply only in so far as,
and to the extent to which, they are not expressly excluded by special or local
law. In interpreting the said provision under Section 29(2) and the Portuguese E
Civil Code pertaining to the question of !imitation as being a local law within
the meaning of Section 29(2), this Court in the case of Justiniano Augusto
De Piedade Barreto v. Antonio Vicente Da Fonseca and Others, AIR (1979)
SC 984 came to a conclusion that the body of the provisions in the Portuguese
Civil Code dealing with the subject of limitation of suits etc. and in force
F
in the Union Territory of Goa, Daman and Diu only, is the local law within
the meaning of Section 29(2) of the Limitation Act, 1963. This Court further
held that these provisions of the Portuguese Civil Code have to be read in
the Limitation Act, 1963, as if the schedule to the Limitation Act stands
amended mutatis mutandis and question of any repugnancy does not and
cannot arise. The earlier decision [Justiniano (Su!)ra)], obviously was on an G
inspiration from the provisions of Section 3 of the Goa, Daman and Diu
(Extension of the Code of Civil Procedure and the Arbitration), Act, 1965
by which both the Code of Civil Procedure, 1908 and the Arbitration Act,
1940 were extended to the Union Territory of Goa, Daman al1d Diu and it
is on this perspective this Court is paragraph 10 of the Report observed : H
718 SUPREME COURT REPORTS [2001] 2 S.C.R.
A " ...... Section 4 of the Act repeals so much of the law in force in the
Union territory of Goa, Daman and Diu as corresponds to the Code
of Civil Procedure 1908 or the Arbitration Ac~ 1940. This Act also
neither expressly nor by implication repeals the provisions relating to •
limitation contained in the Portuguese Civil Code".

B Turning on to the factual matrix at this juncture bowevei; be it noted
that - Syndicate Bank is in Appeal against the order of Panaji Bench of the
High Court of Judicature at Bombay in First Appeal No 73/1985 wherein
the High Court came to a definite conclusion that in the event the cause
of action, as has been in the matter under consideration, has arisen outside
c the Portuguese law, then part of the aforesaid law dealing with a period of
limitation will not apply and· the same would be governed by the Indian
Limitation Act and since the cause of action under consideration arose outside
the Portuguese Law, no exception can be taken to the judgment and decree
of the Civil Judge, Senior Division, Panaji as regards the rejection of plaint
being barred by limitation.
D
Incidentally, the only ground of challenge in the Appeal before the
High Court also pertained to the issue of limitation. Both the learned Civil
Judge and the High Court however, relied on a decision of the Bombay High
Court in the case of Mis. Cadar Constructions v. Mis. Tara Tiles, AIR (1984)
Born. 258 wherein the High Court after consideration of the decision of this.
E
Court in Justiniano's case (supra) summarised the situation in paragraph 25
of the report as below :

"25. We may now summarise our conclusions in this regard.

(i) Provisions in the Portuguese Civil code or other Codes in force
F
in this Union Territory relating to the periods of limitation are local
laws within the meaning of Section 29(2) of the Indian Limitation
Act, 1963 as pointed out by the Supreme Court in Justiniano's case.

(ii) But they are also special laws dealing with the rights and liabilities
G under the Codes themselves of which they form a part.

(iii) If any cause of action arises under the Portuguese law in force
in the Union Territory, then the period of limitation for the suit based
upon that cause of action will be the period mentioned in the relevant
Portuguese law. If, however the relevant provision in the Portuguese
H law has been repealed and the cause of action has arisen before the
SYNDICATE BANK v. MR. PRABHA D. NAIK [BANERJEE, J.] 719
repeal of the law then, notwithstanding the repeal, a suit based upon A ·.
that cause of action can be filed and even in that case the relevant
provision relating to the period of limitation will be the provision in
the Code itself.

(iv) If, however, the cause of action has arisen outside the Portuguese
law, then that part of the law dealing with the period of limitation will B~
not apply; on the other hand, a suit filed on the basis of the cause of
action arising outside the Portuguese law will be governed by the
provisions of the 'Indian Limitation Act, 1963".

During the course of hearing of these appeals, the reasonings as setforth
in Cadar Construction's case (supra) have been relied upon and it was c
contended that in any event the Portuguese Civil Code being not a special
legislation pertaining to the issue of limitatio)/. the Code, cannot be termed
to be a special law or local law within the meaning of Section 29(2) of the
"' Limitation Act and a bench of two judges of this Court hearing the matter,
upon assessment of the situation, found the submission to be attractive and D
as such, there was a felt-necessity for reconsideration of the Judgment in
Justiniano's case (supra) by a larger Bench. It is in terms therewith that this
Bench stands constituted for reconsideration of the issue of applicability of
the provisions of Limitation Act in the State of Goa, Daman and Diu.

Before delving into issue it is expedient to note that though statutory E
recognition of law of limitation for the first time was engrafted in 1859 by
and under the Act 14 of 1859, but there were existing various regulations
passed from time to time for fixing the period of limitation in the country.
Subsequently however, the }\ct of 1908 provided a sea change from the earlier
legislation of 1859 and again the law pertaining to limitation finds place in F
the statute book by way of the Limitation Act, 1963.

Incidentally, it may be noted that though the old Hindu Law recognised
both Prescription and Limitation but Muslim Jurisprudence recognised neither
of them. The new law of limitation in terms of Limitation Act of 1963
however, does not make any ratial or class distinction since both Hindu and G
Muslim Law are amenable to the law of limitation as is presently existing
in the statute book (see in this context B.B. Mitra's Limitation Act: 20th Ed.).

On the further factual score, be it noted that Syndicate Bank instituted
a special suit (suit No. 5 of 1985/A) for recovery of.a sum of Rs. 32,353.30
with future interest at the rate of 18% per annum from 1.1.1989 until payment H
720 SUPREME COURT REPORTS [2001] 2 S.C.R.
A against the defendant No. I (presently Respondent No. I) for money lent and
advanced at the Plaintiff.s Betim Branch, Goa, as the principal debtor, and
against defendant No. 2 (presently Respondent No. 2) as co-obligant-guar-·
antor for recovery of said loan. The loan was granted in July, 1978 for his
business which the respondents agreed to pay by December, 1978, on
execution of a Demand Promissory Note for the said sum, a Deed of
B
Hypothecation together with a delivery letter both dated 22.7.78. The
respondents herein being the Defendant in the suit failed to repay the loan
as promised and several demands to the plaintiffs were of no effect whatso-
ever and hence the snit on 17th January, 1985. The records depict that the
Office Superintendent raised an office objection on the ground of limitation
c and the plaintiff, however, contended that the suit is not barred by limitation
by reason of the decision of this Court in Justiniano's case (supra) and as
such, the suit was fixed for hearing on the preliminary issue of limitation only
resulting in an order of dismissal of the suit on the ground of the same being
barred by limitation. The appeals also had the same fate as noticed herein ~-
D before and hence the appeals before this Court upon the grant of leave.

Admittedly, Portuguese Colonial possession in the country to wit: Goa,
Daman and Diu ·islands became part of the territory of India from 20th
December, 1961 and by the Constitution Twelfth (Amendment) Act, 1962, the
territories of Goa, Daman and Diu were included as the Union Territory with
E effect from the said date (20th December, 1961). It is noteworthy that prior
1
to its incorporation, there was existing Portuguese Civil Code containing
details of multiple Jaws admittedly, including the laws pertaining to limitation.
Probably in order to assess the situation comprehensively, a look at the
provisions would have been better at this juncture, but by reason of the factum
p of admitted state of facts as regards its contents, being multiple laws and since
Mr: Sharma's reliance on Article 535 only in support of his contention, the
same is set out herein below for its true effect. Article 535 reads as below:
"Section llI Negative Prescription

Article 535 - Whoever has assumed an obligation to do for, or to do
G
something to another, stands relieved of the obligation, if its perform-
ance is not demanded for a period of 20 years, and the obligant stands
in good faith, at the end of the prescription period, or when the
performance is not demanded for a period of 30 years, regardless of
good faith or bad faith, except where special prescriptions are.
H provided in law."
SYNDICATE BANK v. MR. PRABHA D. NAIK [BANERJEE, J.] 721
Relying th~reon however, Mr. Shanna contended that the law of A
limitation as in force in the territory of Goa cannot but be treated as a loc.;tl
law under the Portuguese Civil Code since the same is for guidance of the
common man there, for his knowledge in his day to day business and personal
r
obligation creating rights and liabilities which can be discharged within the
period of 30 years in terms of Article 535 of the Civil Code, more so, having
B
regard to the language of Limitation Act, 1963 since local and special laws
have been saved thereunder, the period of limitation as prescribed in the
scheduled to the Act of 1963 would uot be applicable. Strong reliance has
been placed on the decision of this Court in Justiniano's case (supra) and the
reasonings contained therein stands adopted by Mr. Shanna as part of his
submission in support of the appeal. c
Before proceeding further in the matter, be it noted that the Limitation
Bill, 1963 was passed by the Parliament and subsequently received the assent
of the President on 5th October, 1963 and it came into force on 1st January,
1964 as the Limitation Act 1963 (Act 36 of 1963). Sub-section 1 of Section
1 provides that the Act may be called Limitation Act, 1963 and sub-section D
2 of Section 1 specifically provides that the Act shall be made applicable to
the whole of India except the State of Jammu & Kashmir. The intent of the
Parliament has thus been categorised to denote that the same be made
applicable to the territories which form the country and thereby thus obvi-
ously meant and included Goa, Daman and Diu - this submission of Mr.
Mehta for the respondent seems to be rather attractive as the same g'i"'s to
E
the root of the matter. But without further consideration of the same at this
juncture, Section 5 of the Goa, Daman and Diu Administration, 1962 on
which strong reliance was made in support of the Appeal is noticed hereinbelow
for convenience sake and the same reads as below :

"5. Continuanct of txisting laws and thtir adaptation. - (1) All laws
F
in force immediately before the appointed day in Goa, Daman and
Diu or any part thereof shall continue to be in force therein until
a
amended or repealed by competent Legislature or other competent
authority.
G
(2) For the purpose of facilitating the application of any such law in.
relation to the administration of Goa. Daman and Diu as a union
territory and for the purpose. of bringing the provisions of any such
law into accord with the provisions of the Constitution, the Central
Government may, within two years from the appointed day, by order,
make such adaptations and modifications, whether by way of repeal H
722 SUPREME COURT REPORTS [2001] 2 S.C.R.
A or amendment, as may be necessary or expedient and thereupon,
every such law shall have effect subject to the adaptations and
modifications so made."

In this context, it has been contended that since there has been no
specific legislation containing the repeal of the Civil code, the limitation
B as prescribed under the Portuguese Civil Code shall continue to be operative
and hence the suit cannot be termed to be barred by the doctrine of
limitation.

Admittedly Portuguese Civil Code is a complete Code in itsi;lf detailing
therein various rights and liabilities of the citizens and obviously the limi-
c talion in the enforcement of such right cannot but be said to arise from the
Civil Code and not de hors the same.

Admittedly, Portuguese Civil Code continued in the Union Territory of
Goa, Daman and Diu by virtue of Section 5 of the Goa, Daman & Diu ~
D Administration Act, 1962 which provides that the existing laws shall be
continued in force in the Union Territory until amended or repealed by a
competent legislature. We may also note Regulation 12 of 1962 which
provides for extension of certain laws mentioned in the schedule to the
Regulation, to wit, Negotiable Instrument Act, 1881 and the same was
brought into effect in the Union Territory of Goa, Daman and Diu with effect ~

E from 1st December, 1965. In Goa, Daman and Din (Laws) No. 2 Regulation, i
1963 (Regulation 11 of 1963), provisions akin to those contained in Regn-
lation 12 are found under wilich the Indian Contract Act, Sale of Goods Act
and Transfer of Property Act were brought into force in the Union Territory
from !st November, 1965 and !st December, 1965 respectively. The situation
F thus emerge having regard to the two regulations noticed herein before
(Regulation 11 and Regulation 12) that both Negotiable Instrument Act and
Contract Act together with some other statute have been made applicable to
the State by appropriate legislative authority. The Promissory Note signed by
the Respondent No. 1 herein and the guarantor issuing a 'guarantee thereof
cannot but be termed to be the subject within the meaning of the Negotiable
G Instrument Act. In any event, and obviously on the factual score, there was
also existing a Deed of Hypothecation which cannot also but be termed to
be a contract within the meaning of Indian Contract Act which stands applied
in the State of Goa, Daman and Diu. It is, therefore, to be seen as to whether .J.
specific Legislations containing the subjects under which the cause of action
H arisen, would govern the field or the procedural law assuming it would have
~··

SYNDICATE BANK v. MR. PRABHA D. NAIK [BANERJEE, J.] 723
its due application in replacement of the governing statute. This however, A
involves a wider debate and this Bench has not been called upon to answer
the same, as such we refrain ourselves from expressing any opinion in regard
thereto but the fact remains that both Negotiable Instrument Act and Contract
Act have been included in terms of the Regulations noticed above and as
such, made applicable in the State of Goa, Daman and Diu.
B
Be it noted that Article 535 containing the provisions of limitation in
Chapter III regnlating the contracts in the Portugnese Civil Code which how-
ever, stands replaced by the Indian Contract Act. The prescribed period for
limitation pertaining to the contracts being in the same Chapter under Contract
Act cannot be said to be surviving as an independent provision rather than c
going along with the other provisions of the contract which by reason of
adaptation of Contract Act stands replaced. It is thus cannot but be said to be
an implied repeal. The necessity of having an express repeal was never felt
by reason of the factum of adaptation of Indian Contract Act in so far as
Chapter II is concerned. Either the Chapter survive in its entirety or it perishes
in its all spheres - it is one chapter dealing with contract and prescribed the D
period of enforcement of the same: no dissection is possible.

The view expressed by the learned Single Judge in Ganoxama Bicy
Naik Vaingonkar v. Joao Manuel Dias, 1983 (First Civil Appeal No. 27 of
1975); (Born. at Panaji-Goa) stands accepted by Division Bench in Cadar
E
Construction (supra). The High Court in the last noted decisions placed
reliance on Articles 689 and 690 of the Portugese Code whicn provides for
special period of limitation in case of error and coercion respectively, and thus
drawing analogy therefrom, came to a conclusion that the law as enunciated
by the learned Single Judge in Ganoxama's case (supra) cannot but be termed
to be the correct exposition of law. S!milar is the reasoning as formulated by F
Mr. Mehta - since enforcement cannot survive the operatim of law in the
event the right is stated to be governed by another set of laws.

Article 505 of the Civil Code provides for acquisition of things and
•
rights by possession and the same is ascribed to be positive prescription and
discharge of obligations by reason of not demanding their fulfillment is
G
known as negative prescription. The word 'Prescription' is in genera I is a
mode of acquiring title to incorporeal hereditaments by continued user,
possession and enjoyment during the time. Article 535 prescribes a negative
element of prescription which is akin to adverse possession. A prescriptive
right however, differs from adverse possession, since prescription relates to H
724 SUPREME COURT REPORTS (2001] 2 S.C.R.
A incorporeal rights while adverse possession applies to an interest in the title
to property. 'Prescription' is usually applied to acquisition of incorporeal
hereditaments and negative prescription obviously a negation of such an
acquisition. 'Prescription' admittedly, is a part of substantive law but limi-
talion relates to procedure, as such prescription differs from limitation. The
former is one of the modes of acquiring certain right while the latter viz. the
B
limitation, bars a remedy, in short, prescription is a right conferred, limitation
is a bar to a remedy Chapter II of the Portuguese Civil Code provides detailed
Articles pertaining to Prescription Corpus Juris Securulum (vol. 72) described
the word 'prescription' as below :
'
c "In law prescription is of two kinds; it is either an instrument for the
acquisition of property or an instrument of an exemption only from
the servitude of judicial process. In the first sense, as relating to the
acquisition of property, prescription is treated in Adverse Possession.
In the second sense, as relating to exemption from the servitude of
judicial process, prescription is treated as Limitation of Actions".
D
On the wake of the above, question of expression of any contra opinion
apart from what has been expressed in Cadar Construction (supra) pertaining
to the interpretation of the Portuguese Civil Code, does not arise.

The other aspect of the matter ought also to be noticed to wit, the
E 1
incorporation of Negotiable.Instrument Act and Contract Act by a notifi-
cation in the State of Goa, I\aman and Diu. The cause of action of the suit
viz. money lent and advanced in terms of the agreement stands squarely
governed by the Contract Act read with the Negotiable Instrument Act by
reason of the admitted executed of a Promissory Note and as such cannot
F be said to be governed by the Code. In the event th~ right to initiate the
proceedings _goes out of the ambit of the Code, the latter cannot governed
a
its enforceability. The Civil Code is complete Code in itself; its appli-
cability was not restrictive in any way whatsoever prior to the issuance of
notification adapting into a State law, the two statutes named above. The •
Portuguese Civil Code cannot be termed to be a statute of limitation, as such
G it can not have its operation .extended to prevent the enforcement of inde-
pendently existing rights of action. The Civil Code, as noticed above can not
but be ascribed to be a compilation of comprehensive faw in the State which
.4.
meets the n.,ed of the situation alongwith a specific period for extinguishment
of the same - to clarify the situation it may be stated that till: Portiiguese Civil
H
SYNDICATE BANK v. MR. PRABHA D. NAIK [BANERJEE, I.] 725
Code provides both for accrual of right and its enforceability and when the A
right stands divested, question of enforceability of the right arising from a
different source and other than Code, would not arise. Either the Code applies
in its entirety or it does not - there is no half way about it. On the wake of
the aforesaid, the debate involving the distinction drawn between substantive
and procedural matters need not be delved into nor even be discussed in the
B
contextual facts, more so having regard to the criticism of Lord Eldon's
dictum in spear v. Hartly, (1800) 3E sl. 81 170 ER 545 that a subsisting
lien by reason of the existing debt owning to him does not stand discharged
even though his remedy by action was barred by the statute of limitation -
the distinction drawn between the drawal of the remedy and the subsistence
of the right in the contextual facts for classification of statute of limitation c
in Private International Law is said to be merely procedural and has been
described as both "artificial and cementic" (see in this context Chesistiare and
North, Private International Limited 11th Ed.; Mcleod; Conflict of laws. The
High Court of Australia in the case of Mckain v. R. W Miller & Co. (South
Australia) Pty. Ltd., 174 CLR (1991-92 page !) wherein C.J. stated: D
"Not all statutes of limitation, however, operate simply to deny a party
a remedy while leaving a right in existence. Limitation provisions
which can be seen as incidents of rights created, whether by the same
or another related statute, have been typically construed as extin-
guishing those rights after the effluxion of the nominated peri<l(I of E
time."

The obvious question thus appears as to whether the Limitation Act of
this country would be made applicable to the State of Goa, being a part of
this country or the Portuguese Civil Code in the facts of this case not
F
governing the right, would have its application in the enforceability of such
a right - we are left with no option but to record our opinion to the fact that
by reason of the existence of right under Indian Law (to wit, Contract Act
and Negotiable Instrument Act) the extinction of remedy under the Portu-
guese Law cannot but be deemed to be impliedly repealed. The doctrine of
implied repeal has to take its place in the facts of the matter under G
consideration. Having regard to the factum of Article 535 being a mere
procedural aspect and not being a substantive right, as such we are not
contemplating the situation under Private International Law, but the distinc-
tion between substantive and procedural law has a meaningful existence
herein. The doctrine of implied repeal, we are conscious of the fact, is not H
726 SUPREME COURT REPORTS [2001] 2 S.C.R.

A to be favoured but where a particular provision could not.have been intended
to subsist and if let subsisting, the resultant effect would be an absurdity.
Courts cannot but declare it to be so on the ground of repeal by implication.
Let us at this juncture try to appreciate the total effect, in the event we allow
Article 535 to remain subsisting : The right to sue on a contract arising in
any part of the country excepting the State of Goa stands extinguished after
B
the expiry of the period of limitation as prescribed by under the Limitation
Act. The Appellant Bank has its branches throughout the country, in a
situation identical, appellant Bank will be entitled for the enforcement of its
claim even the period of limitation is prescribed under the Limitation Act but
if a similar suit appears in another part of the country, appellant Bank will
c have its liberty to institute a claim for enforcement and the remedy continues
for a much longer period of time (as in this case 30 years). Is it a conceivable
situation that a debtor in this country without there being any implication of
Private International Law can bona fide and validly extinguish a claim of !he
creditor within a specific period but a debtor situated in another part of !he
country having a uniformity of laws by reason of such local law said to be
D
existing, cannot claim such extinguishment or bar of remedy until the expiry
of a much longer period of time? - the situation is rather anomalous and
cannot be conceived. Having regards to Section I (2) of !he Limitation Act
which came into force much after the territories of Goa. Daman and Diu were
incorporated as a Union territory by the Constitution, (Twelfth) Amendment
E Act however, should not detain us long.

Incidentally, the legislature is supposed to be aware of the need of the
society and the existing state of law: there is no reason whatsoever to consider
that the legislature was unaware of the existing situation as regards the
Portuguese Civil laws with a different provision for limitation. Needless to
F
record the special reference has been made to the State of Jarnmu & Kashmir
but after incorporation of the State of Goa, Daman & Diu wilhin the Indian
Territory, if there was any intent of having !he local law being made prevalent
!here pertaining to the question of limitation only, !here would have been an
express exclusion and in the absence of which no contra intention can be
G deduced, neither any contra inference can be drawn. In any event, as noticed
above, Portuguese Civil Code, in our view, could not be read to be providing
a distinct and separate period of limitation for a cause of action arising under
the Indian Contract Act or under !he Negotiable Instrument Act since the
Civil Code ought to be read as one instrument and cause of action arisen
H lherefrom ought only to be governed thereunder and not otherwise. The
SYNDICATE BANK v. MR. PRABHA D. NAIK [BANERJEE, J.] 727
entire Civil Code ought to be treated as a local law or special law including A
the provisions pertaining to the question of limitation for enforcement of the
right arising under that particular Civil Code and not de hors the same and
in this respect the observations of the High Court in Cadar Construction
(supra) that the Portuguese Civil Code could not provide for, a period of
limitation for a cause of action which arose outside the provisions of that
B
Code, stands approved. A contra approach to the issue will not only
yield to an absurdity but render the law of the land wholly inappropriate.
There would also be repugnancy in so far as application to the Limitation
Act in various States of the Country is concerned; whereas in Goa, Daman
and Diu, the period of limitation will be for a much larger period than the
State of Maharashtra - the situation even conceptually cannot be sustained C
having due regard to the rule of law and jurisprudential aspect of the
Limitation Act.

Needless to record that our concurrence to the observations of the High
Court in regard to a special Law of Limitation is provided for enforcement
of the rights arising under that Code itself, is by reason of the fact that Law D
of Limitation is a procedural law and the provisions existing on the date of
the suit apply to it (reference may be made to the decision of this Court in
C. Beepathuma and Others v. Velasari Shankaranarayana Kadambolithaya
and Others, AIR (1965) SC 241.
E
Admittedly, Limitation Act is a statute enacting lhe provlSlons in
general terms applicable to lhe entire country excepting the exception as
mentioned in lhe statute itself. It is a latter statute of the year 1963 only
lhat the Portuguese Civil Code assuming had its applicat;on in lhe State
of Goa, Daman & Diu and an earlier statute lhus stand altered, as the
latter is expressed in affirmative language, more so by reason of specific F
application of Negotiable Instrument Act and Indian Contract Act : It thus
cannot but be said to be repealing by implication - "affirmative statute
introductive of a new law do imply a negative" (Harcourt v. Fox, (1693) 1
show. 506.

As regards the doctrine of implied repeal, another aspect of the matter G
ought to be noticed vis-a-vis the Civil Code. The issue of limitati.on being
a mixed issue of law and fact under the Limitation Act, the Court in spite
of plea not being raised by the defence, can go into the same suo moto but
there is a specific bar under Article 515 of the Civil Code which records that
the Court cannot suo moto take cognizance of description unless it is H
728 SUPREME COURT REPORTS [2001] 2 S.C.R.
A specifically pleaded by the parties. It is a bar of jurisdiction of Court. The
repugnancy and incongruity arise by reason of the fact that the Parliament
by law viz. The High Court at Bombay (extension of jurisdiction to Goa,
Daman and Diu) Act, 1981 extended the jurisdiction of the High Court of
Judicature at Bombay to the Union Territory of Goa, Dan1an and Diu from
the appointed day and the Court of Judicial Commissioner was abolished.
B
Section 9 of the statute [(Act of 1981) (supra)] provides that there shall be,
on and from appointed day, established a permanent Bench of the High Court
of Bombay at Panaji and some Judges of the High Court at Bombay being
not less than two in number or as may be nominated by Chief Justice of the
High Court from time to time shall sit at Panaji, in order· to exercise the
c jurisdiction and power for the time being vested in the High Court in respect I
of cases arising in this Union Territory. The authority and jurisdiction of the
High Court of Bombay, to talce cognizance of an action being barred by
limitation, thus stands negated - conceptually even a difficult situation to
conceive that same High Court will have two different spheres of jurisdiction
D while dealing with matters. At the cost of repitition we say that while implied
repeal is not to be readily inferred but in the contextual facts, upon scrutiny,
we cannot but hold that on the walce of the facl:\lln of the Limitation Act
coming into existence from 1.1.1964, Article 535 of the Portuguese Civil
Code cannot but be termed to be impliedly repealed and it is on this score
that the decision of this Court in Justiniano's case (supra) stand overruled.
E There is one general law of limitation for the entire country being the Act
of 1963, and the Portuguese Civil law cannot be termed to be a local law
or a special law applicable .to the State of Goa, Daman & Diu prescribing
a different period of limitation within the meaning of Section 29(2) of the
Limitation Act and in any event, question of saving of local law under the
F Limitation Act of ! 963 does not and cannot arise. The submission that
without there being a specific mention of repealing statute (since 1963 Act
of Limitation does not record express repeal of any other law excepting the
Limitation Act of 1908), question of Portuguese Civil Code being repealed
does not arise, cannot hold good by reason of the doctrine of implied repeal
as noticed above. In the premises aforesaid, these appeals fail and are
G dismissed without however, any order as to costs.

B.S. Appeals dismissed.