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TMI Blog2015 (10) TMI 2806X X X X Extracts X X X X X X X X Extracts X X X X ..... damages on 7.8.1983, a period of two months from the date of the notice would have to be excluded when calculating the period of limitation, as per Section 15(2) of the Limitation Act - It is thus clear that the Respondent failed to file the suit for damages within the period prescribed in the Limitation Act. The suit is required to be dismissed on this ground alone. Appeal allowed - decided in favor of appellant. - Civil Appeal No. 1770 of 2005 - - - Dated:- 16-10-2015 - Vikramajit Sen and S.K. Singh, JJ. For Appellant: Preetesh Kapur, Kabir Hathi, Jesal Wahi and Hemantika Wahi, Advs. For Respondents: Meenakshi Arora, Sr. Adv., Shirish D. Patel, Bina Gupta and Ranjit B. Raut, Advs. JUDGMENT Vikramajit Sen, J. 1. This Appeal lays siege to the decision of the Division Bench of the High Court of Gujarat at Ahmedabad which dismissed the appeal of the Appellant before us while allowing the cross-objection filed by the Plaintiff/Respondent by holding it to be entitled to claim interest for an extended period. For the reasons which will follow, we have set aside these concurrent findings against the Appellant State, principally on the ground that the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r protest on 1.1.1982; and the Security Deposit was refunded on 27.1.1982. Thereupon, the Respondent addressed a statutory notice Under Section 80 of the Code of Civil Procedure dated 7.8.1983 to the Appellant State, claiming damages as a result of the additional costs incurred due to the abovementioned delays. The Respondent eventually filed a suit on 25.1.1985 seeking damages under thirteen different heads, including price escalation in labour due to the prolongation of the work, price escalation in fuel lubricants etc., overstay of capital and machinery, and overheads such as staff, kitchen, office etc. 3. The Trial Court found that the delay was caused by the Appellant State; that work was completed by the Respondent well within the number of days contractually allocated to complete it. Noting that Under Section 73 of the Indian Contract Act compensation is payable for any loss or damage for breach of a contract, the Trial Court granted compensation under twelve of the thirteen heads of claims itemised by the Respondent. In terms of its judgment dated 4.5.1991 the Trial Court observed that the factual matrix pertaining to these amounts claimed have remained uncontroverted, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. It is thus incumbent upon the Court to satisfy itself that the suit is not barred by limitation, regardless of whether such a plea has been raised by the parties. In Union of India v. British India Corporation Ltd. (2003) 9 SCC 505, it has been opined that the question of limitation is a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it, if there is no dispute on facts. It is thus irrelevant that the Appellant State had not raised the issue of limitation before the Trial Court. A duty was cast on the Court to consider this aspect of law, even on its own initiative, and since it failed to do so, the Appellant State was competent to raise this legal question in appeal or indeed even in any successive appeal. Close to a century ago, in Lachhmi Sewak Sahu v. Ram Rup Sahu AIR 1944 Privy Council 24, it has been held that the point of limitation is available to be urged even in the Court of last resort. Furthermore, we are not confronted with a situation where the plea of limitation is a mixed question of fact a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as clearly not broken as the Respondents chose to keep it alive despite its repeated breaches by the Appellant State. The factual matrix presents a situation of successive or multiple breaches, rather than of a continuous breach, as each delay in handing over the canal/site by the Appellant State constituted to a breach that was distinct and complete in itself and gave rise to a separate cause of action for which the Respondent could have rescinded the contract or possibly claimed compensation due to prolongation of time and resultant escalation of costs. of course the Respondent is enabled to combine all these causes of action in one plaint, as postulated in the Code of Civil Procedure provided each claim is itself justiciable. Even the Respondent has argued before the High Court that the suit was based on successive breaches committed by the Appellant State. In our opinion, the suit was required to be filed within three years of the happening of each breach, which would constitute a distinct cause of action. Article 55 specifically states that in respect of successive breaches, the period begins to run when the breach in respect of which the suit is instituted, occurs. In this ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expected that the Respondent should have filed a suit for damages on each of these occasions. In a sense, a fresh contract would be deemed to have been entered into between the parties on the grant of each of the extensions. It is therefore not legally possible for the Respondent to contend that there was a continuous breach which could have been litigated upon when the contract was finally concluded. In other words, contemporaneous with the extensions granted, it was essential for the Respondent to have initiated legal action. Since this was not done, there would be a reasonable presumption that the claim for damages had been abandoned and given a go-by by the Respondent. 11. In a works contract, more often than not, delays occur, and that is why it is assumed that time is not of the essence. Where extensions are asked for and granted, there must be a clear and discernable stand on behalf of either of the parties that the extension is granted and/or accepted without prejudice to the claim of damages. It has become commonplace that neither party lodges a claim for damages, but waits for the end of the contract to raise these disputes, taking advantage of the nebulous and equivoc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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