Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4190 OF 2000
Ahmmadsahab Abdul Milla (dead)
By proposed Lrs. ....Appellants
Versus
Bibijan and Ors. ....Respondents
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. A reference was made to a three-Judge Bench, by reference order
st
dated 21 April, 2008. The relevant question is whether the use of the
expression “date” used in Article 54 of the Schedule to Limitation Act, 1963
(in short the ‘Act’) is suggestive of a specific date in the calendar. In S.
Brahmanand v. K.R. Muthugopal (2005 (12) SCC 764) a Bench of this
Court did not go into this issue. It decided the appeal on the factual scenario
applicable. It was however noticed that several High Courts have dealt with
the matter differently. In all these cases, for example in Kashi Prasad v.
Chhabi Lal (AIR 1933 All 412), Alopi Parshad v. Court of Wards (AIR
1938 Lah 23), Lala Ram Sarup v. Court of Wards (AIR 1940 PC 19),
Kruitiventi Mallikharjuna Rao v. Vemuri Pardhasaradhirao (AIR 1944 Mad
218), R. Muniswami Goundar v. B.M. Shamanna Gouda (AIR 1950 Mad
820), Hutchegowda v. H.M. Basaviah (AIR 1954 Mys 29), Purshottam Sava
v. Kunverji Devji (AIR 1954 Sau 104), Lakshminarayana Reddiar v.
Singaravelu Naicker (AIR 1963 Mad 24), Shrikrishna Keshav Kulkarni v.
Balaji Ganesh Kulkarni ( AIR 1976 Bom 342), P. Sivan Muthiah v. John
Sathiavasagam (1990 (1) MLJ 490), the High Courts had decided the issue
in the background of Article 113 of the Limitation Act, 1908 (hereinafter
referred to as the ‘Old Act’). Article 113 of the Old Act is in pari materia
with Article 54 of Schedule to the Act. Some of the High Courts took the
view that the force of the word ‘fixed’ implies that the date should be fixed
definitely and should not be left to be gathered from the surrounding
circumstances of the case. Some other High Courts, however, took a
different view. There are two decisions of this Court i.e. Ramzan v.
Hussaini (1990 (1) SCC 104) and Tarlok Singh v. Vijay Kumar Sabharwal
(1996 (8) SCC 367). In Tarlok Singh’s case (supra) the factual scenario was
noticed and the case was decided after referring to Article 54 of the
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Schedule to the Act. Ramzan’s case (supra) related to the specific
performance of contingent contract. It was held that the expression ‘date
fixed for performance’ need not be ascertainable in the face of the contract
deed and may be ascertainable on the happening of a certain contingent
event specified in the contract.
2. Article 54 of the Schedule to the Act reads as follows:
________________________________________________________________
Description of suit Period of limitation Time from which
Period begins to run
54 For specific performance three years The date fixed for the
Of a contract performance or, if no
Such date is fixed, when
the plaintiff has notice
that performance is
refused.”
3. Learned counsel for the appellants submitted that purposive
interpretation has to be given to the expression “the date fixed”.
4. The judgments in Ramzan and Tarlok Singh cases (supra) were
rendered in a different factual scenario and the discussions do not throw
much light on the controversy at hand.
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rd
5. According to Advanced Law Lexicon by P. Ramanatha Aiyar, 3
Edition 2005, the word ‘date’ means as follows:
“Date. (As a noun) The point of time at which a
transaction or event takes place; time given or specified;
time in some way ascertained and fixed; in a deed, that
part of the deed or writing which expresses the day of the
month and year in which it was made, (2 Bl. Commn.
304; Tomlin). In Bement v. Trenton Locomotive, etc.,
Mfg. Co., 32 NLJ 513 (515), it is said : `The primary
signification of the word date, is not time in the abstract,
nor time taken absolutely but, as its derivation plainly
indicates, time given or specified time in some way
ascertained and fixed; this is the sense in which the word
is commonly used. When we speak of the date of a deed,
we do not mean the time when it was actually executed
but the time of its execution, as given or stated in the
deed itself.
"Where a deed bears no date, or an impossible date, and
in the deed reference is made to the `date', that word
must be construed `delivery'; but if the deed bears a
sensible date, the word `date', occurring in the deed,
means the day of the date, and not that of the delivery"
(Elph. 123, citing Styles v. Wardle, 4 B&C 908;
"Date", though sometimes used as the shortened form of
"day of the date", is not its synonym; but mean the
particular time on which an instrument is given,
executed, or delivered (Howard's Case, 1 Raym. Ld 480;
Armitt v. Breame, 2 Raym Ld 1076; Pewtress v Annan, 9
Dowl 828, at pp. 834, 835).
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"The word `date' is much more commonly descriptive of
a day than of any smaller division of time" (per Simpson
v. Marshall, 37 SLR 316).
“Date” means day, so that where a cover note providing
for temporary insurance of a motor car expires "15 days
after date of commencement" it runs for the full 15 days
after the day on which it was to commence (Cartwright
v. Mac Cormack; Trafalgar Insurance Co. (Third Party),
(1963) 1 WLR 18).”
6. ‘Fixed’ in essence means having final or crystallized form or
character not subject to change or fluctuation.
7. The inevitable conclusion is that the expression ‘date fixed for the
performance’ is a crystallized notion. This is clear from the fact that the
second part “time from which period begins to run” refers to a case where
no such date is fixed. To put it differently, when date is fixed it means that
there is a definite date fixed for doing a particular act. Even in the second
part the stress is on ‘when the plaintiff has notice that performance is
refused’. Here again, there is a definite point of time, when the plaintiff
notices the refusal. In that sense both the parts refer to definite dates. So,
there is no question of finding out an intention from other circumstances.
Whether the date was fixed or not the plaintiff had notice that performance
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is refused and the date thereof are to be established with reference to
materials and evidence to be brought on record. The expression ‘date’ used
in Article 54 of the Schedule to the Act definitely is suggestive of a
specified date in the calendar. We answer the reference accordingly. The
matter shall now be placed before the Division Bench for deciding the issue
on merits.
8. The reference is disposed of accordingly.
…………………………………J.
(Dr. ARIJIT PASAYAT)
…………………………………J.
(HARJIT SINGH BEDI)
………………………………..J.
(ASOK KUMAR GANGULY)
New Delhi,
April 01, 2009
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