Case Note & Summary
The appellants, the Executive Engineer and Chief Executive Officer of Zilla Parishad, Sindhudurg, were original defendants in a suit filed by the respondent, Sherif Mohammad I. Shaikh, for recovery of Rs.58,000/- for work done under a tender. Before filing the suit, the plaintiff gave a statutory notice under Section 280 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, dated 10.10.1990. The suit was filed on 25.9.1991. The defendants raised the plea of limitation, which was rejected by the trial court, and the suit was decreed on merits. In appeal, the only question was whether the suit was barred by limitation. The appellants argued that the suit was premature because it was filed before the expiry of the two-month notice period under Section 280, and that the period of notice could not be excluded under Section 15(2) of the Limitation Act, 1963, as the suit was filed before the notice period expired. The court agreed, holding that the suit was not maintainable as it was filed prematurely, and the benefit of exclusion under Section 15(2) is only available if the suit is filed after the notice period expires. The court allowed the appeal, setting aside the trial court's decree and dismissing the suit.
Headnote
A) Limitation Act, 1963 - Section 15(2) - Exclusion of time of notice - Suit filed before expiry of statutory notice period under Section 280 of Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 is premature and not maintainable - The period of notice cannot be excluded under Section 15(2) if the suit is filed before the notice period expires - Held that the suit was barred by limitation as the plaintiff failed to wait for the notice period to end before filing the suit (Paras 4-6).
Issue of Consideration
Whether a suit filed before the expiry of the statutory notice period under Section 280 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 is maintainable and whether the period of notice can be excluded for computing limitation under Section 15(2) of the Limitation Act, 1963.
Final Decision
Appeal allowed. The judgment and decree of the trial court are set aside. The suit is dismissed as barred by limitation.
Law Points
- Limitation Act
- 1963
- Section 15(2)
- Section 280 of Maharashtra Zilla Parishads and Panchayat Samitis Act
- 1961
- Notice period exclusion
- Premature suit
Case Details
2005 LawText (BOM) (05) 147
First Appeal No. 692 of 1993
Mr. R. D. Soni for the Appellants, Mr. H.S.S. Murthy (amicus curiae) for the Respondents
Executive Engineer (Working Section), Sindhudurg Zilla Parishad & Chief Executive Officer, Zilla Parishad, Sindhudurg
Sherif Mohammad I. Shaikh & The Collector, Sindhudurg
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Nature of Litigation
Civil appeal against decree in suit for recovery of money for work done under a tender.
Remedy Sought
Appellants sought dismissal of suit on ground of limitation.
Filing Reason
Suit filed for recovery of Rs.58,000/- for work done; appellants contended suit was barred by limitation.
Previous Decisions
Trial court rejected limitation plea and decreed suit on merits.
Issues
Whether the suit filed before expiry of statutory notice period under Section 280 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 is maintainable?
Whether the period of notice can be excluded under Section 15(2) of the Limitation Act, 1963 when suit is filed before expiry of notice period?
Submissions/Arguments
Appellants argued that suit was premature as it was filed before expiry of two-month notice period under Section 280 of the Act of 1961, and that Section 15(2) of Limitation Act does not apply to exclude notice period if suit is filed before notice period expires.
Respondents (through amicus curiae) argued that the suit was filed after the notice period and within limitation.
Ratio Decidendi
A suit filed before the expiry of the statutory notice period under Section 280 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 is premature and not maintainable. The period of notice cannot be excluded under Section 15(2) of the Limitation Act, 1963 if the suit is filed before the notice period expires, as the exclusion applies only when the suit is filed after the notice period.
Judgment Excerpts
The suit was filed on 25.9.1991, whereas the notice period of two months would expire only on 10.12.1990. Therefore, the suit was filed before the expiry of the notice period.
Section 15(2) of the Limitation Act, 1963 provides for exclusion of the period of notice only if the suit is filed after the expiry of the notice period. Since the suit was filed before the expiry of the notice period, the benefit of Section 15(2) is not available.
The suit was premature and not maintainable. The trial court erred in rejecting the plea of limitation.
Procedural History
Respondent filed suit for recovery of Rs.58,000/- on 25.9.1991 after giving notice under Section 280 of the Act of 1961 on 10.10.1990. Trial court rejected defendants' limitation plea and decreed suit. Defendants appealed to High Court.
Acts & Sections
- Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961: 280
- Limitation Act, 1963: 15(2)
