Tag Archives: limitation

Doctrine of Laches vis-à-vis Doctrine of Acquiescence

It is now a well settled principle of Jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity “delay defeats equities”.

The principle is applied in those cases where discretionary orders of the court are claimed, such as specific performance, permanent or temporary injunction, appointment of Receiver etc. These principles are also applied in the writ petition filed under Article 32 and 226 of the Constitution of India. In such cases, courts can still refuse relief where the delay on the petitioner’s part has prejudiced the respondent even though the petitioner might have come to court within the period prescribed by the Limitation Act.

Likewise, if a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress, he cannot complain afterwards. This principle is based on the doctrine of acquiescence implying that in such a case the party who did not make any objection acquiesced into the alleged wrongful act of the other party and therefore, has no right to complain against the alleged wrong.

Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the court, if the action is not brought within that prescribed period, the aggrieved party loses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of the other. As mentioned above, these principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non-existent. Prabhakar v. Joint Director, Sericulture Department, (2015) 15 SCC 1.

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Filed under Doctrine of Laches, Uncategorized

Counterclaims

In State of Goa v. Praveen Enterprises, (2012) 12 SCC 581, addressing the issue pertaining to counterclaims, the Court observed as follows:
“As far as counterclaims are concerned, there is no room for ambiguity in regard to the relevant date for determining the limitation. Section 3(2)(b) of the Limitation Act, 1963 provides that in regard to a counterclaim in suits, the date on which the counterclaim is made in court shall be deemed to be the date of institution of the counterclaim. As the Limitation Act, 1963 is made applicable to arbitrations, in the case of a counterclaim by a respondent in an arbitral proceeding, the date on which the counterclaim is made before the arbitrator will be the date of institution insofar as counterclaim is concerned. There is, therefore, no need to provide a date of commencement as in the case of claims of a claimant. Section 21 of the Act is therefore not relevant for counterclaims. There is however one exception. Where the respondent against whom a claim is made, had also made a claim against the claimant and sought arbitration by serving a notice to the claimant but subsequently raises that claim as a counterclaim in the arbitration proceedings initiated by the claimant, instead of filing a separate application under Section 11 of the Act, the limitation for such counterclaim should be computed, as on the date of service of notice of such claim on the claimant and not on the date of filing of the counterclaim. Voltas Limited v. Rolta India Limited, (2014) 4 SCC 516.

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Filed under Arbitration, counterclaims

Industrial Dispute – Words “at any time”

The real test is that the words “any industrial dispute exists or is apprehended” has to be read alongwith the words “at any time”. These words, under Section 4K of the U.P. Industrial Disputes Act are complimentary to each other. Consequently, the words “at any time” does not suggest that a dispute could be raised at any stage and that there is no period of limitation attached to it. All it means that so long as an industrial dispute exists or is apprehended, such dispute could be referred for adjudication before an appropriate Labour Court or Industrial Tribunal upon a reference being made by the State Government.
The crucial test is that an industrial dispute should be in existence or is apprehended on the date of reference. If there was no industrial dispute existing or if the industrial dispute was not apprehended, the State Government had no power to make a reference but if the dispute was existing or was apprehended, the State Government could refer the dispute even if the dispute was raised after a considerable period of time.
Further the reference of such dispute is to be made on such opinion being formed by the Government on the basis of the material placed before it. In appropriate cases, even without waiting for the conciliation report the State Government can “at any time” refer a dispute which is existing or is apprehended for adjudication. Dr. Jawahar Lal Rohatagi Memorial Eye Hospital, Kanpur v. State of U.P., (2014) 1 UPLBEC 158.

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Filed under Industrial Dispute, Labour Law

Dishonour of Cheque – Limitation Under

For the purposes of limitation, in so far as legal notice is concerned, it is to be served within 30 days of the receipt of information by the drawee from the bank regarding the return of the cheque as unpaid. Therefore after the cheque is returned unpaid, notice has to be issued within 30 days of the receipt of information in this behalf. That is the period of limitation provided for issuance of legal notice calling upon the drawer of the cheque to make the payment. After the sending of this notice 15 days time is to be given to the notice, from the date of receipt of the said notice to make the payment, the offence can be said to have been committed and in that event cause of action for filing the complaint would accrue to the complainant and he is given one month time from the date of cause of action to file the complaint. Kamlesh Kumar v. State of Bihar, 2014 (84) ACC 311.

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Filed under Dishonour of Cheque, Negotiable Instruments Act

Law of Limitation

In a recent judgment of the Supreme Court of India, it was held as under:
“It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim “dura lex sed lex” which means “the law is hard but it is the law” stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute. A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” Popat Bahiru Govardhane v. Special Land Acquisition Officer, 2013 (121) RD 249.

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Filed under Civil Law, Limitation

Dispossession vis-à-vis Discontinuance of possession

The term “dispossession” and “discontinuance of possession” in Article 142, Act IX of 1908 came to be considered before the Calcutta High Court in Brojendra Kishore Roy Chowdhury v. Bharat Chandra Roy and others, AIR 1916 Cal. 751 and the court held:
“Dispossession implies the coming in of a person and the driving out of another from possession. Discontinuance implies the going out of the person in possession and his being followed into possession by another.”
The distinction between “dispossession” and “discontinuance” has been noticed in Gangu Bai v. Soni, 1942 Nagpur Law Journal 99, observing that “dispossession” is not voluntary, “discontinuance” is. In dispossession, there is an element of force and adverseness while in the case of discontinuance, the person occupying may be an innocent person. For discontinuance of possession, the person in possession goes out and followed into possession by other person.
In Agency Company v. Short, 1888 (13) AC 793, the Privy Council observed that there is discontinuance of adverse possession when possession has been abandoned. The reason for the said observation finds mention on page 798 that there is no one against whom rightful owner can bring his action. The adverse possession cannot commence without actual possession and this would furnish cause of action.
Dispossession is question of fact. The term refers to averments in the plaint exclusively and cannot be construed as referring to averments in the plaint in the first instance and at a later stage to the finding on the evidence. The indicas of discontinuance are also similar to some extent. It implies going out of the other person in possession and is being followed into possession by another. U.P. Gandhi Smarak Nidhi v. Aziz Mian, (2013) 119 R.D. 106.

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Filed under Civil Law, dispossession