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TMI Blog2005 (3) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... ajor Port Trust Act, 1963 (hereinafter referred to as 'the Act') and that the suit was barred by limitation. This judgment was challenged in First Appeal No. 27 of 1992. Prior to that District Judge vide order dated 30th April, 1991, had come to the conclusion that Section 120 of the Act was applicable to the present case. Against this order the appellant had filed an appeal from order 69 of 1991. The two appeals having arisen from the same suit were heard together and disposed of by the High Court by a common judgment. We propose to do the same. 2. We would referring to the facts necessary to dispose of the appeals as found by the High Court on which there is no dispute between the counsel for the parties. 3. Loading operation in relation to iron ore at Mormugao Port was sought to be regulated by the Mormugao Port (Shipment of Ore and Pellets from Mechanised Ore Handling Plant at berth no. 9 and related matters) Regulations, 1979. Respondent No. 1-The Board of the Trustees of Mormugao (hereinafter referred to as 'the Board') was empowered to divide the storage area into plots of a size sufficient to hold approximately the quantity required to be loaded and to stipu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the writ petitioner. In view of the fact that the power to levy surcharge had already been upheld by this Court the counsel for the appellant did not argue this point before us. 5. Appellant's case further is that in the event the validity of levy of surcharge is upheld, the action of the Board for refusing full rebate to the appellant and in collecting surcharge of Rs.7.80 is illegal, arbitrary, unreasonable, contrary to the Act and Rules and Regulations as well as Article 14 of the Constitution on the ground that the surcharge of Rs.7.80 per tonne has been levied without taking into consideration lapses on the part of the Board as well as non-consideration of shortfall in export of the appellant's due to the factors beyond their control. The appellant had also raised dispute relating to the extent of alleged storage plot and the turnover required to be achieved by the appellant during the year to be eligible for full rebate under Notification dated 26th October, 1983. According to the appellant it was entitled to the full rebate on 8,66,192 metric tonnes. The lapses pointed out on the part of the Board were stated to be failure of its obligation by provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m rental surcharge levied by Notification dated 26th October, 1983 bearing No. 3-GA(8)/83 issued by the Board be declared as illegal, unconstitutional, null and void; to declare the recovery to the tune of Rs.62,46,548.10 paise as illegal being unconstitutional, null and void; and to pay damages/compensation being equivalent to full rebate aggregating to the sum of Rs.62,46,548.10 paise and to declare Section 120 of the Act as unconstitutional, null and void. 7. Another fact which needs to be mentioned is that the Board had admitted in their letter dated 6th April, 1984 that the appellant was entitled to receive rebate of Rs.7,09,835/- as the appellant had turned over the plot for 6.39 times and were ready and willing to pay over the said amount of Rs.7,09,835/- to the appellant. In view of the admission made by the Board, the appellant sought judgment on admission for the said sum of Rs.7,09,835/- under Order 12, Rule 6 of C.P.C. The Board in its reply to the application under Order 12, Rule 6 stated that the Board had no objection to the passing of a decree for Rs,7,09,835/- in favour of the appellant but objected to the payment of 18% interest on the said amount with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion relating to limitation in respect of the remaining amount claimed by the appellants and part of the suit could be dismissed on the ground of limitation? 2. Whether Section 120 of the said Act is applicable and if the answer is in the affirmative, whether letter dated 12.4.84 can be treated as notice under Section 120 of the said Act and further whether the suit is barred by limitation thereunder? 3. Whether Section 120 of the said Act is unconstitutional? 13. The High Court answered all the three questions in favour of the respondent by holding that the respondent did not waive the plea of limitation for the remaining amount of Rs.55,36,710.10 paise. That Section 120 was applicable to the present case. The letter dated 12.04.1984 addressed by the appellant to the respondents could not be considered as a notice under Section 120 of the Act and that Section 120 of the Major Port Trust Act, 1963 was constitutionally valid. The High Court affirmed the judgment of the District Judge regarding the legality and constitutional validity of Section 120 and rejected the contention put forth by the appellant's counsel that by prescribing the limitation of 6 months against the Board and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull rebate as claimed by the appellant. 16. On 11.09.1986 the appellant filed Civil Suit No. 55/1986 for various reliefs referred to in the earlier part of the judgment. Port trust on 14.02.1997 filed its written statement raising the plea of limitation and failure to give statutory notice as per Section 120 and also denying the claim on merits. The appellant made an application under Order 12 Rule 6 for the decree on admission in view of the port trust's letter dated 16.06.1984 referred to above. The appellant had claimed interest @ 18% on the amount due from the date the amount became payable till its actual payment. The port trust in reply to the application under Order 12 Rule 6 admitted the claim of Rs.7,09,835/- but denied its liability to pay any interest on the said amount. The Trial Court on 12.08.1987 passed a decree on admission with regard to the sum of Rs.7,09,835/- leaving the question of interest on the aforesaid amount open which was to be decided at the time of the adjudication of the main suit. The main suit was dismissed by the District Judge as being barred by time and not maintainable for want of notice. 17. Counsel for the appellant has contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) Subject to the provisions contained in sections 4 - 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. (2) For the purposes of this Act -- (a) a suit is instituted -- (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted - (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court. 20. The mandate of Section 3 of Limitation Act is that it is the duty of the Court to dismiss any suit instituted after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board had given up the determination of the question of limitation or the maintainability of the suit for want of statutory notice. 23. The appellant had at no stage of proceedings had pleaded waiver of the plea of limitation or of the giving of the notice under Section 120 of the Act. The plaint was filed on 01.09.1986, Board had filed its written statement raising objections of limitations and maintainability of the plaint for want of notice on 18.02.1987. Application for decree on admission was filed on 12.04.1987 and reply to the said application was filed by the Board on 18.07.1987. The decree on admission was passed by the Trial Court for the sum of Rs.7,09,835/- on 12.08.1987. After the framing of issues and after an application was made to try issues no. 12 and 13 as preliminary issues on 22.12.1989, an application was filed by the appellant to amend the plaint. On 06.01.1990, a further application was filed by the appellant for further amendment of the plaint. Even though, the plaint was exhaustively amended after the decree on admission, plea of waiver was not taken in the plaint. The point regarding waiver was not argued before the Trial Court at any stage and even in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have been rejected in limine. 24. In the present case, plea of waiver had neither been taken in the original plaint nor in the amended plaint which was amended subsequent to the passing of the decree on admission for the sum of Rs.7,09,835/- nor even in the grounds of appeal before the High Court. Question of waiver is not a pure question of law which could be permitted to be raised by the appellant at any stage of the proceedings. The High Court was right in observing that the plea of limitation put up by the Board has to be examined on its own merit. We do not find any merit in the submission of the learned senior counsel appearing for the appellant that the suit having been partly decreed on admission, could not subsequently be dismissed on the ground of limitation for the remaining amount. Second part of Point No. 25. Shri R.F. Nariman, learned senior counsel appearing for the appellant conceded before us the first part of the point no. 2 that Section 120 of the Act is applicable in the present case. He addressed on the second part of question no. 2, whether the letter dated 12.04.1984 can be treated as notice under Section 120 of the said Act and further whether the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35/- @ Re.1/- per tonne for having turned over the plot allotted to it 6.39 times during the financial year 1983-84. In reply thereto, the appellant by their letter 12.04.1984 set out various arguments to justify the ground for full rebate and requested for the refund of the entire sum of Rs.62,46,584.10 paise. In reply thereto, the respondent Board by its letter dated 16.06.1984 declined the request of the appellant contained in its letter dated 12.04.1984. The appellant in para 30 of its plaint has stated that the illegal levy/refusal of rebate was made on 16.06.1984. Thus the cause of action arose to the appellant for the first time on 16.06.1984 and, therefore, the letter dated 12.04.1984 by no stretch of imagination can be said to be a notice under Section 120 of the Act, which requires the cause of action to be set out in the said statutory notice. In the plaint there is no averment to the effect that the appellant had given the notice under Section 120. Appellant in paragraph 31 has taken the stand that the appellant was not prevented by Section 120 and 121 of the Act from filing the suit. If that be the case, then the letter dated 12.04.1984 cannot be treated as a notice un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides for short period of limitation of six months for filing the suit without prescribing for the condonation of delay to mitigate the hardship of the litigants is arbitrary, excessive, disproportionate and unreasonable restriction on the appellant's rights under Article 14 and 19(1)(f) of the Constitution of India. That the High Court wrongly felt bound by two decisions cited before it. The first being of the Bombay High Court in Municipal Corporation of Greater Mumbai v. Hasham Ismail Mamsa AIR1972Bom350 and the other of this Court in the Trustees of the Port of Bombay v. The Premier Automobiles Ltd. and Anr. [1974]3SCR397. So far as Municipal Corporation of Greater Mumbai's case (supra) is concerned it was contended that this was not a decision on the point at all in as much as the counsel for the plaintiff had not pressed the point regarding constitutional validity of the provision though the same had been raised. In so far as the Trustees of the Port of Bombay's case (supra) it was pointed out that the constitutional validity of Section 87 of the Bombay Port Trust Act had not been challenged at all. That the observations made in the aforesaid cases are in the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) it is urged by the learned senior counsel appearing for the appellant that the constitutional validity of Section 87 of the Bombay Port Trust Act, 1879 was not under challenge and therefore the said decision cannot be a precedent for examining the constitutional validity of Section 120 of the present Act. Section 87 reads as under:- Section 87. No suit or other proceeding shall be commenced against any person for any thing done, or purporting to have been done, in pursuance of this Act, without giving to such person one month's previous notice in writing of the intended suit or other proceeding and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding... 33. It is true that the constitutional validity of Section 87 of the Act which is equivalent to Section 120 of the present Act and similar in terms was not directly in issue. Yet this Court examined the question of shorter period of limitation prescribed under Section 87 of the Bombay Port Trust Act, 1879. With reference to the relatively longer period of limitation provided under the Indian Limitation Act for filing of the suit and after examining the said issue the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext and it may well be that other enactments, dealing with different subject-matter, may exclude from an 'act' an 'omission'. This possibility is reduced a great deal by the definition of 'act' in the various General Clauses Acts, as including 'illegal omissions'. 34. The question of considering the rationale of Section 87 of Bombay Port Trust squarely arose in the said case as the contention was raised by the Additional Solicitor General therein that if the argument of the respondent in the said case was accepted, it would amount to misreading the purpose of Section 87 of the Bombay Port Trust Act and similar provision in many statues calculated to protect public officers and institutions on a special basis. (see paragraph 7 of the judgment). The Major Port Trusts Act, 1963 charges the port authorities with a well thought out duties and functions in respect of providing port facilities and equipment and providing services for receiving, landing and shipping of goods or passengers from and upon sea going vessels. As a result of these multifarious functions, major ports and their officers are faced and burdened with an explosive amount of litigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Act shall prevail over with the general Act. Section 29 of the Indian Limitation Act, 1963 relates to savings. For proper appreciation of legal position Section (2) of the Limitation Act is reproduced below:- Section 29(2) -- Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 - 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. 37. Sub-Section 2 of Section 29 envisages special or local laws which can provide a period of limitation for suits as well as for appeals and applications, different from the period prescribed by the schedule of Limitation Act where provisions contained in Sections 4 - 24 can be expressly excluded by such special or local laws. There are many special or local laws which provide for a short period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the proper officers ascertaining that a cause of action has accrued, Government being an impersonal body, before a claim is launched there has to be inter-departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these features which are sometimes characterised as red-tape that there is delay in the functioning of Government offices. 39. With reference to the contention of Shri R.F. Nariman, learned senior counsel appearing for the appellant that there is no reasons for prescribing a shorter period of limitation for action against the Board while suits against the Government can be filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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