M/S SHANTI CONDUCTORS (P) LTD. versus ASSAM STATE ELECTRICITY BOARD AND ORS. REVIEW PETITION (C) NOS. 786787 OF 2019 IN on 18 December 2019

SUPREME COURT REPORTS

[2019] 16 S.C.R.

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M/S SHANTI CONDUCTORS (P) LTD.

v.

ASSAM STATE ELECTRICITY BOARD AND ORS.

Review Petition (C) Nos. 786–787 of 2019

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In

(Civil Appeal Nos. 8442–8443 of 2016)

DECEMBER 18, 2019

[ASHOK BHUSHAN, S. ABDUL NAZEERAND NAVIN SINHA, JJ.]

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Code of Civil Procedure, 1908:

Order 47 r. 1 – Review petition – Error apparent on record– On facts, review petition on the ground that there is an apparenterror in the judgment by this Court holding that suit was barredDby time – Petitioner’s case that in money suit pertaining to intereston principal amount received by the petitioner, the last supply wascompleted on 04.10.93 but the last payment was made on05.03.1994, a fresh period of limitation would begin from05.03.1994 on the basis of s. 19 of the Limitation Act – Held:EExemption provided u/ss. 4 to 20 of the Limitation Act, are basedon certain facts and events – On facts, perusal of the plaintindicates that there is no pleading as to exception of limitation byrunning any fresh period of limitation as per s. 19 – There was nooccasion for defendants to raise any reply in reference to s. 19 –Also, proviso to Order 7 r. 6 cannot come to the rescue of theFplaintiff since the plaintiffs specifically pleaded that the provisionsof the Limitation Act are not applicable since Act, 1993 hasoverriding effect – Furthermore, in the paragraph of cause ofaction for the suit, the cause of action is not claimed from the date05.03.1994, which was the date when the last payment wasGreceived by the petitioner – Petitioner in the plaint has clearly notpleaded for benefit of s. 19 nor has brought necessary facts toenable the Court to consider the claim under s. 19 – Thus, thepetitioner is not entitled for benefit of s. 19 and there is no errorin the judgment of this Court holding that the suit of the plaintiffwas barred by time – Furthermore, benefit of s. 14 of LimitationH

Act cannot be claimed by the plaintiff since writ petition, whichwas filed by the Association was by different entity – Issue ofbenefit of s. 14 was specifically considered and rejected by thisCourt in its judgment thus, there is no error apparent on the saidground – Limitation Act, 1963 – ss. 19, 14 – Interest on DelayedPayment to Small Scale and Ancillary Industrial Undertakings Act,1993.

Order 47 r. 1 – Review petitions – Error apparent on record– On facts, matter pertaining to interest on delayed payment tosmall scale industries – Review petition on the ground that therewas error on face of record in observation of this Court – Someof the supplies made prior to commencement of the 1993 Act–23.09.1992 and some of the supplies made after 23.09.1992 –Entitlement of petitioner to the benefit of interest under the 1993Act – Held: The date of bill for the payment for supply of thematerials by the plaintiffs was 29.09.1992 – This Court in thejudgment rightly held that there was nothing on record to come tothe conclusion that any supply was made after the enforcement ofthe Act so as to enable the appellant to claim interest u/s. 3 readwith s. 4 of the 1993 Act, thus, the judgment of the High Courtdoes not call for interference – Submission that there is errorapparent on the face of record is rejected and the review petitionis dismissed – Interest on Delayed Payment to Small Scale andAncillary Industrial Undertakings Act, 1993.

Order 47 r. 1 – Review petition – Error apparent on record– Review petition on the ground that this Court dismissed theappeal as not maintainable which is error apparent on record –Held: This Court considered the maintainability of appeal andfound against the petitioner, thus, there is no ground to review thepetition.

Order 47 r. 1 – Review petition – Scope of – Held: Scope ofreview is limited – Under the guise of review, petitioner cannot bepermitted to reagitate and reargue the questions, which havealready been addressed and decided.

Order 7 r. 6 – Grounds of exemption from limitation law –Applicability of – Held: When suit is instituted after expiration ofperiod prescribed by law of limitation, the plaint should show theground upon which exemption from such law is claimed – However, AB

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Athe Court may permit the plaintiff to claim exemption from the lawof limitation on any ground not set out in the plaint, if such groundis not inconsistent with the grounds set out in the plaint.

Limitation Act, 1963: s. 19 – Benefit of – Held: Section 19provide for a fresh period of limitation – Benefit under s. 19 isBavailable when payment on account of debt or of interest on legacyis made before the expiration of the prescribed period by theperson liable to pay the debt or legacy and an acknowledgementof the payment appears in the handwriting of, or in a writing signedby, the person making the payment.

CDismissing the review petitions, the CourtHELD:

Review Petition (C) Nos. 786–787 of 2019

1.1 Section 3 of the Limitation Act, 1963 makes it clearDthat in event, a suit is instituted after the prescribed period, itshall be dismissed although limitation has not been set up as adefence. The Court by mandate of law, is obliged to dismiss thesuit, which is filed beyond limitation even though no pleadingor arguments are raised to that effect. The provisions of Sections4 to 20 are exceptions when suit beyond the period of limitationEas prescribed in the Schedule shall not be dismissed as requiredby Section 3. Order VII Rule 6 C.P.C. uses the words “the plaintshall show the ground upon which exemption from such law isclaimed”. The exemption provided under Sections 4 to 20 of theLimitation Act, 1963 are based on certain facts and events.FSection 19 provide for a fresh period of limitation, which isfounded on certain facts, i.e., whether payment on account ofdebt or of interest on legacy is made before the expiration ofthe prescribed period by the person liable to pay the debt orlegacy, whether an acknowledgement of the payment appears inGthe handwriting of, or in a writing signed by, the person makingthe payment. [Para 11 and 12] [263-C-D; G-H]

1.2 A perusal of the plaint indicates that there is nopleading as to exception of limitation by running any fresh periodof limitation as per Section 19. The details of delivery challansHhave been given, last challan being dated 04.10.1993 has been mentioned by which supply was made. The details of paymentsreceived have also been mentioned, in which last being madeon 05.03.1994 has been mentioned, but for the last paymentmade on 05.03.1994, there was no pleading of anacknowledgment on the part of the respondents, which couldresult in start of fresh period of limitation. Further, it has beenfurther specifically pleaded that provisions of Limitation Act donot apply in view of the provisions contained in the Act, 1993as because the Act, 1993 is having overriding effect over theLimitation Act and all other Acts. There being no specificpleading by the plaintiffs claiming any start of fresh period oflimitation, there was no occasion for defendants to raise anyreply in reference to Section 19. [Para 13, 14] [265-C-E; 266-A]

1.3 The proviso of Order VII Rule 6 added by Act 104 of1976, provided that the Court may permit the plaintiff to claimexemption from the law of limitation on any ground not set outin the plaint, if such ground is not inconsistent with the groundsset out in the plaint. The proviso of Order VII Rule 6 cannotcome to the rescue of the plaintiff, the plaintiffs have specificallypleaded in paragraph 21 that the provisions of the Limitation Actare not applicable since Act, 1993 has overriding effect. The trialcourt in decreeing the suit of the plaintiff has accepted thesubmission and has held that Limitation Act, 1963 is notapplicable. [Para 18] [269-G-H]

1.4 Paragraph 24 of the plaint, which is a paragraph ofcause of action for the suit, which refers to date beginning from31.03.1992 till 05.10.1993, i.e., the beginning from the firstsupply order i.e., 31.03.1992 and date of last supply order, i.e.,05.10.1993, but cause of action is not claimed from the date05.03.1994, which was the date when the last payment wasreceived by the petitioner. The petitioner in the plaint has clearlynot pleaded for benefit of Section 19 nor has brought necessaryfacts to enable the Court to consider the claim under Section19. Thus, the petitioner is not entitled for benefit of Section 19of the Limitation Act and there is no error in the judgment ofthis Court dated 23.01.2019 holding that the suit of the plaintiffwas barred by time. [Para 19] [270-A-C]

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A1.5 That benefit of Section 14 of Limitation Act cannot beclaimed by the plaintiff since writ petition, which was filed by theAssociation was by different entity. The question of benefit ofSection 14 having been specifically considered and rejected bythis Court in its judgment dated 23.01.2019, there is no errorBapparent on the said ground. Moreover, instant is a case wherewrit petition filed by Association was dismissed on 28.08.1997subsequent to filing of the suit by plaintiff on 10.01.1997.Furthermore, after the judgment of the Single Judge on28.08.1997 Association filed a writ appeal challenging the saidjudgment, which facts also detracts from fulfilling the conditionsCas required for extending the benefit of Section 14 of theLimitation Act. [Para 20] [270-D-E]

1.6 Insofar as other submissions that Act, 1993 isretroactive in nature and further amount due at the time of thecommencement of the Act ought to attract interest of the Act,D1993, all these submissions have been elaborately consideredin the judgment dated 23.01.2019, which have been consideredon merits. The scope of review is limited and under the guiseof review, petitioner cannot be permitted to reagitate andreargue the questions, which have already been addressed andEdecided. Thus, there is no merit in review petition (c) Nos. 786–787 of 2019. [Para 21, 22] [270-F-G; 271-C]

2. A perusal of the chart given in the judgment indicatesthat the date 29.09.1992 is a date of bill for the payment forFsupply of the materials by the plaintiffs. In the judgment dated23.01.2019, it was observed that “there being nothing on recordto come to the conclusion that any supply was made after theenforcement of the Act so as to enable the appellant to claiminterest under Section 3 read with Section 4 of the Act, 1993,Gthe judgment of the High Court does not need any interferencein this appeal”. Thus, there is no merit in the submission of thecounsel for the appellant that there is error apparent on the faceof record in observation of the Court made in paragraph 85 ofthe judgment, the said submission is rejected. [Para 24, 25] [272-HD-E]

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Review Petition (C) No.788 of 2019

3.1 A perusal of the judgment dated 19.03.2013 indicatesthat the grounds on which the petitioner prayed liberty to filereview was not proved in the review petition. The High Courtin the review judgment did not hold in favour of the petitionerthat he was entitled for the benefit of Act, 1993 rather the HighCourt accepted the submission of the petitioner that plaintiffsare not debarred from claiming cost under Section 34 CPC,Section 61 of the Sale of Goods Act, 1930 or Section 3 of theInterest Act, 1978 or in equity only on the ground of principalamount. The High Court granted interest at the rate of 9% perannum. The Civil Appeal No. 8445 of 2016 has been filed againstthe review judgment but obviously the appeal is not against the9% interest granted to the petitioner. Review judgment doesnot grant interest under Act, 1993 since the High Court in thereview judgment did not interfere with the earlier finding thatpetitioner is not entitled for benefit under Act, 1993. The reviewon the ground on which liberty was sought was in essence notaccepted by the High Court in its review judgment. Moreover,in judgment dated 23.01.2019, the maintainability of appealhaving been considered and found against the petitioner, thereis no ground to review the petition. [Para 28] [273-E-H; 274-A]

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Sant Lal Mahton v. Kamla Prasad and Others, AIR1951 SC 477 : [1952] SCR 116 ; Jiwanlal Achariyav. Rameshwarlal Agarwalla, AIR 1967 SC 1118 ;Kamla Devi and Others v. Pt. Mani Lal Tewari andOthers, (1976) 4 SCC 818 ; Parsion Devi and Othersv. Sumitri Devi and Others, (1997) 8 SCC 715 : [1997]Suppl. SCR 470 – referred to.

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ACIVIL APPELLATE JURISDICTION : Review Petition (Civil)Nos. 786-787 of 2019 in Civil Appeal Nos. 8442-8443 of 2016.

From the Judgment and Order dated 23.01.2019 passed in CivilAppeal Nos.8442-8443 of 2016

WithB

Review Petition (C) Nos. 789, 788 of 2019.

Abhishek Manu Singhvi, Ajit Kumar Sinha, Basava S. PrabhuPatil, Vijay Hansaria, Sr. Advs., Devashish Bharuka, Ravi Bharuka,Ms. Sarvshree, Justine George, Ms. Srishti Agarwal, Narendra M.CSharma, Siddhartha Jain, Aditya Singh, Chinmay Desh Pande, GeetAhuja, Rachitha H., Rajiv Shankar Dvivedi, Ms. Sneha Kalita,Ardhendumauli Prasad, Sanjeev Kumar Singh, Shighra Kumar,Rajlakshmi Singh, Ms. Sneha Kalita, Avnish Pandey, Abhinav Hansaria,Ms. Taruna A. Prasad, Advs. for the appearing parties.

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The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. These review petitions have been filed against the commonjudgment dated 23.01.2019 passed in Civil Appeal Nos. 8442-8443 ofE2016, Civil Appeal No.8450 of 2016 and Civil Appeal No.8445 of 2016,by which all the Civil Appeals were dismissed, sought to be reviewedby these applications. All the review petitions filed have raised differentgrounds, which need to be considered separately.

Review Petition (C) Nos. 786-787 of 2019F

2. To consider the grounds raised in the review petition, few factsneed to be noticed.

2.1 The Assam State Electricity Board, the respondent has issuedtwo supply orders to the petitioner dated 31.03.1992 and 13.05.1992Gfor supply of aluminium electrical conductors. Petitioner completedsupply in pursuance of the above supply orders beginning from June,1992 till 04.10.1993. The President of India to provide for and regulatepayment of interest on delayed payment to small scale industries issuedan Ordinance on 23.09.1992 namely “The interest on Delayed PaymentsHto Small Scale and Ancillary Industrial Undertaking Ordinance”, which subsequently became the Act namely “The interest on DelayedPayments to Small Scale and Ancillary Industrial Undertaking Act, 1993(hereinafter referred to as “Act, 1993”)” w.e.f. 23.09.1992.

2.2 A Writ Petition (C) No. 1351 of 1993 was filed by AssamConductors Manufacturers Association on behalf of its five members,which included M/s. Shanti Conductors Private Limited also forrealisation of its dues and for seeking payment. An interim order waspassed by the Guwahati High Court on 21.07.1993, in which the HighCourt observed that respondents may settle with the outstanding billsof the petitioners. The respondent paid an amount of approx. Rs.2.15Crores in instalments to the petitioner and the last instalment of paymentbeing made on 05.03.1994. A Money Suit No.21 of 1997 was filed bythe petitioner in the Court of Civil Judge (Sr. Division) No.1 at Guwahation 10.01.1997 for a decree of Rs.53,68,492.56 towards the interest onlyon the payment of the principal amount, which had already beenreceived by the petitioner.

2.3 On 28.08.1997, Writ Petition (C) No.1351 of 1993 wasdismissed observing that writ petitioner may go to the Civil Court forrealisation of its dues.

2.4 The trial court on 02.02.2000 decreed the money suit of thepetitioner for Rs.51,60,507.42 with future interest @ 23.75% on amonthly compounding basis. RFA No.66 of 2000 was filed by thepetitioner against the judgment of the trial court. The Division Benchmade a reference to the Full Bench for answering three points as raisedby the counsel for the appellant. Three-Judge Bench answered thereference on 05.03.2002. The respondent filed Special Leave Petition(C) No. 24577 of 2002, which was subsequently converted in CivilAppeal No.2351 of 2003. This Court on 10.07.2012 dismissed the CivilAppeal No.2351 of 2003 [M/s. Assam State Electricity Board Vs.M/s. Shanti Conductors Pvt. Ltd.] alongwith another Civil AppealNo.2348 of 2003 [M/s. Purbanchal Cables and Conductors Pvt. Ltd.Vs. Assam State Electricity Board]. After dismissal of the above CivilAppeals, the Division Bench of the High Court allowed the RFA No.66of 2000 filed by the respondents and dismissed the suit of the petitioner.

2.5 Against the judgment of the Division Bench dated 20.11.2012,Civil appeal Nos.8442-8443 of 2016 was filed by M/s. ShantiConductors (P) Ltd, the petitioner in the appeal. Two judgments were AB

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Adelivered by two Hon’ble Judges with two divergent opinion, whichjudgment is reported in (2016) 16 SCC Page 13. The matter wasreferred to Three Judge Bench, which heard all the appeals and videits judgment dated 23.01.2019 dismissed the appeals.

3. In the suit filed by the petitioners, one of the questions, whichBwas framed was “Whether the suit filed by the appellants is barred bylimitation?” In paragraph 27 of the judgment dated 23.01.2019, Sevenquestion, which had arisen in these appeals have been noticed. IssueNo.3 was “Whether money suit by M/s. Shanti Conductors was barredby limitation?C4. Issue No.3 has been dealt from paragraphs 59 to 76 and weconcluded in paragraph 76 that suit filed by M/s. Shanti Conductors(P) Ltd. was barred by time.

5. Shri Abhishek Manu Singhvi, learned senior counsel appearingfor petitioner submits that there is an apparent error in the judgmentDdated 23.01.2019 in holding that suit was barred by time. He submittedthat according to admitted facts last payment made by the respondentwas on 05.03.1994 and suit having been filed within three years, i.e.,on 10.01.1997 was well within time. It is submitted that last supplyhaving been completed on 04.10.1993 and even though three yearsEperiod from 04.10.1993 had lapsed, but the payment having been madeon 05.03.1994 by the respondents, a fresh period of limitation shall beavailable to the petitioner as per Section 19 of the Limitation Act, 1963.It is submitted that in the written submission, which was submitted onbehalf of the petitioner, reliance was placed on Section 19 and furtherFin earlier judgment of this Court reported in (2016) 15 SCC 13, inparagraph 53, Justice Gowda has answered the question of limitationin favour of the appellant relying on Section 13. It is submitted thatSection 19 escaped the notice of this Court while answering the questionof limitation, which is an error apparent, need to be corrected and ithas to be held that suit was well within time. Dr. Singhvi further submitsGthat petitioners were also entitled for benefit of Section 14 of theLimitation Act since Writ Petition No. 1351 of 1993 was filed in theHigh Court by Assam Conductors manufacturers Association, of whichpetitioner was one of the members, which writ petition came to bedismissed on 28.08.1997, the period during which the writ petition wasHpending consideration ought to have been excluded while computing the limitation for money suit filed by the petitioner. Dr. Singhvi submits thatalthough in the impugned judgment, this Court has considered claim ofpetitioner of exclusion of time under Section 14 of the Limitation Actbut the benefit was erroneously denied on the ground that writ petitionwas filed by the Assam Conductors Manufacturers Association, whichis a different entity than the petitioner. He submits that the said viewis apparently erroneous and need to be corrected. In the review petition,apart from submissions of limitation, several other grounds have beenurged touching on the issues, which have been considered and decidedin the judgment dated 23.01.2019. He sought to contend that Act, 1993is retroactive and further any outstanding amount at the time ofcommencement of the Act ought to attract interest under the Act, 1993.

6. Shri Vijay Hansaria, learned senior counsel appearing for therespondents refuted the contentions of the petitioner and submitted thatthere is no error apparent on record. The question on limitation of Suithas been specifically considered and this court held that suit is barredby time. Arguments made on the strength of Section 14 has beenspecifically considered and rejected. The petitioner was not entitled forany benefit of Section 14 of the Limitation Act since Section 14contemplates exclusion of time of the proceeding, which the plaintiffhas been prosecuting with due diligence. He submits that plaintiff inthe suit in question is M/s. Shanti Conductors whereas petitioner in thewrit petition, which was filed in the Guwahati High Court wasassociation, which is a different entity and it cannot be said that plaintiffof suit was the same entity, which had filed the writ petition. ShriHansaria further submits that against the dismissal of the writ petition,a writ appeal was filed by the Association, which writ appeal was alsosubsequently dismissed by the Division Bench, which fact has beenconcealed by the petitioner. When against the judgment of learned SingleJudge, the appeal was filed, no question of bonafide prosecuting theearlier proceedings arises. Shri Hansaria further submits that for takingbenefit under Section 19 of the Limitation Act, there has to be specificpleading and proof in the suit. Plaintiffs have neither pleaded any groundfor claiming benefit under Section 19 nor proved the same in the suit,hence benefit of Section 19 cannot be extended. He further submitsthat for taking benefit of Section 19 of the Limitation Act, there has tobe acknowledgment of the payment, which is a question of fact requiredto be pleaded and proved by the plaintiffs.

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A7. Learned senior counsel for the parties have also placedreliance on various judgments of this Court, which shall be referred towhile considering the submissions.

8. We may first consider the grounds raised by the petitioner onSection 19 of the Limitation Act. Although, during oral submissions, noBargument was raised on Section 19 of the Limitation Act, but thequestion being of limitation of the suit, we permitted the learned counselfor the parties to advance their submissions.

9. Section 19 of the Limitation Act is as follows:- C“19. Effect of payment on account of debt or of interest onlegacy.—Where payment on account of a debt or of interest ona legacy is made before the expiration of the prescribed periodby the person liable to pay the debt or legacy or by his agentduly authorised in this behalf, a fresh period of limitation shall becomputed from the time when the payment was made:D

Provided that, save in the case of payment of interest madebefore the 1st day of January, 1928, an acknowledgment of thepayment appears in the handwriting of, or in a writing signed by,the person making the payment.

EExplanation.—For the purposes of this section,—

(a) where mortgaged land is in the possession of themortgagee, the receipt of the rent or produce of suchland shall be deemed to be a payment; (b) “debt” does not include money payable under a decreeFor order of a court.”

10. In the judgment dated 23.01.2019, it has been held that thelimitation of the suit filed by the petitioner shall be governed by Article113 of the Limitation Act, 1963, which is three years from the date whenthe right to sue accrues. In paragraph 71 of the judgment, it has beenGheld that last supply was completed on 04.10.1993, thus, amount becamedue on 04.11.1993 and the period of three years shall start running from04.11.1993 and suit filed was beyond three years. The petitioners onthe strength of Section 19 contends that since the last payment wasmade on 05.03.1994, a fresh period of limitation shall begin from theHfresh date, i.e., 05.03.1994 and the suit filed on 10.01.1997 was well within time. Section 3 of the Limitation Act, 1963 deals with bar oflimitation. Section 3(1) is as follows:-

“3. Bar of limitation.—(1) Subject to the provisions containedin sections 4 to 24 (inclusive), every suit instituted, appealpreferred, and application made after the prescribed period shallbe dismissed, although limitation has not been set up as a defence.

XXXXXXXXXXXXXXXXXX”

11. The above provision makes it clear that in event, a suit isinstituted after the prescribed period, it shall be dismissed althoughlimitation has not been set up as a defence. The Court by mandate oflaw, is obliged to dismiss the suit, which is filed beyond limitation eventhough no pleading or arguments are raised to that effect. The provisionsof Sections 4 to 20 are exceptions when suit beyond the period oflimitation as prescribed in the Schedule shall not be dismissed as requiredby Section 3. In this context, we need to refer to Order VII Rule 6 ofthe Civil Procedure Code. Order VII deals with plaint. Order VII Rule6 contains a heading “Grounds of exemption from limitation law”.Order VII Rule 6 is as follows:- “6. Grounds of exemption from limitation law. - Where thesuit is instituted after the expiration of the period prescribed bythe law of limitation, the plaint shall show the ground upon whichexemption from such law is claimed:

Provided that the Court may permit the plaintiff to claimexemption from the law of limitation on any ground not set outin the plaint, if such ground is not inconsistent with the groundsset out in the plaint.”

12. Order VII Rule 6 uses the words “the plaint shall show theground upon which exemption from such law is claimed”. Theexemption provided under Sections 4 to 20 of the Limitation Act, 1963are based on certain facts and events. Section 19, with which we areconcerned, provide for a fresh period of limitation, which is foundedon certain facts, i.e., (i) whether payment on account of debt or ofinterest on legacy is made before the expiration of the prescribed periodby the person liable to pay the debt or legacy, (ii) an acknowledgementof the payment appears in the handwriting of, or in a writing signed by,the person making the payment. We may notice the judgment of this AB

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ACourt dealing with Section 20 of the Limitation Act, 1908, which wasakin to present Section 19 of the Limitation Act, 1963. In Sant LalMahton Vs. Kamla Prasad and Others, AIR 1951 SC 477, thisCourt held that for applicability of Section 20 of the Limitation Act, 1908,two conditions were essential that the payment must be made withinBthe prescribed period of limitation and it must be acknowledged by someform of writing either in the handwriting of the payer himself or signedby him. This Court further held that for claiming benefit of exemptionunder Section 20, there has to be pleading and proof. In paragraphs 9and 10, following has been laid down:-

C“9. It would be clear, we think, from the language of s. 20,Limitation Act, that to attract its operation two conditions areessential : first, the payment must be made within the prescribedperiod of limitation and secondly, it must be acknowledged bysome form of writing either in the handwriting of the payerhimself or signed by him. We agree with the Subordinate JudgeDthat it is the payment which really extends the period of limitationunder s. 20, Limitation Act; but the payment has got to be provedin a particular way and for reason of policy the legislature insistson a written or signed acknowledgment as the only proof ofpayment and excludes oral testimony. Unless, therefore, there isacknowledgment in the required from, the payment by itself isEof no avail. The Subordinate Judge, however, is right in holdingthat while the section requires that the payment should be madewithin the period of limitation, it does not require that theacknowledgment should also be made within that period. Tointerpret the proviso in that way would be to import into it certainFwords which do not occur there. This is the view taken by almostall the High Courts in India and to us it seems to be a properview to take (See Md. Moizuddin v. Nalini Bala A.I.R. (24) 1937Cal 284 : I.L.R. (1937) 2 Cal. 137; Lal Singh v. Gulab Rai 55All 280, Venkata Subbhu v. Appu Sundaram 17 Mad. 92, RamPrasad v. Mohan Lal A.I.R. (10) 1923 Nag 117 and ViswanathGv. Mahadeo 57 Bom. 453.

10. …………………………………If the plaintiff’s right ofaction is apparently barred under the Statute of limitation, O. 7,R. 6, Civil P.C. makes it his duty to state specifically in the plaintthe grounds of exemption allowed by the Limitation Act uponHwhich he relies to exclude its operation; and if the plaintiff has got to allege in his plaint the facts which entitle him to exemption,obviously these facts must be in existence at or before the timewhen the plaint is filed; facts which come into existence afterthe filing of the plaint cannot be called in aid to revive a right ofaction which was dead at the date of the suit. To claim exemptionunder s. 20. Limitation Act the plaintiff must be in a position toallege and prove not only that there was payment of interest ona debt or part payment of the principal, but that such paymenthad been acknowledged in writing in the manner contemplatedby that section…………………………”

13. We need to notice as to whether the petitioners in plaint havepleaded any exclusion of time under Section 19 of the Act or not. Theplaint is filed as Annexure P/2 in Civil Appeal Nos. 8442-8443 of 2016.A perusal of the plaint indicates that there is no pleading as to exceptionof limitation by running any fresh period of limitation as per Section19. In paragraph 10, the details of delivery challans have been given,last challan being dated 04.10.1993 has been mentioned by which supplywas made. In paragraph 12, details of payments received have alsobeen mentioned, in which last being made on 05.03.1994 has beenmentioned, but for the last payment made on 05.03.1994, there was nopleading of an acknowledgment on the part of the respondents, whichcould result in start of fresh period of limitation. Further in paragraph21, it has been further specifically pleaded that provisions of LimitationAct do not apply in view of the provisions contained in the Act, 1993as because the Act, 1993 is having overriding effect over the LimitationAct and all other Acts. Paragraph 21 of the plaint is referred to forready reference:-

“21. That the transaction between the plaintiffs and thedefendants are duly maintained by the plaintiffs in the Books ofAccounts like ledger, Sale Register etc., which are kept in theusual course of the business of the plaintiffs and those accountsbetween the plaintiffs and the defendants are in continuity andthe interest payable by the defendants to the plaintiffs are carriedover till date. As such the suit of the plaintiffs is in within time.Apart from that the provisions of the Limitation Act do not applyin view of the provisions contained in the Act, 1993 as becausethe Act of 1993 is having overriding effect over the LimitationAct and all other Acts.”

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A14. There being no specific pleading by the plaintiffs claimingany start of fresh period of limitation, there was no occasion fordefendants to raise any reply in reference to Section 19. Shri AbhishekManu Singhvi, learned senior counsel has relied on two judgments ofthis Court, which need to be noticed: (i) Jiwanlal Achariya Vs.BRameshwarlal Agarwalla, AIR 1967 SC 1118, and (ii) Kamla Deviand Others Vs. Pt. Mani Lal Tewari and Others, (1976) 4 SCC818. In Jiwanlal Achariya (supra), this Court had occasion toconsider Section 20 of the Limitation Act, 1908, which was akin topresent Section 19 of the Limitation Act, 1963. The Court wasconsidering the question as to what shall be the date of a post-datedCcheque, whether it shall be the date on which cheque bears or the datethe cheque is handed over to compute the start of fresh period oflimitation. The Court held that the date which post-dated cheque bearssubject to payment by the bank shall be treated as a date for start ofthe fresh period of limitation. In paragraph 8 of the judgment, it wasDobserved that the proviso to Section 20 shall be treated to be compliedwith for the cheque itself is an acknowledgment of the payment in thehandwriting of the person giving the cheque. Paragraph 8 of thejudgment is as follows:- “8. This brings us to the question of limitation. The facts areEnot in dispute now. The promissory note was executed onFebruary 4, 1954. On the same date a post-dated cheque bearingthe date February 25, 1954 was given by the defendant-appellantto the plaintiff-respondent, the intention being that on beingrealised it would be credited towards part payment. It wasFrealised sometime after February 25, 1954 and was creditedtowards part payment, the appellant himself having made anendorsement admitting this part payment. But it is contended onbehalf of the appellant that as the post-dated cheque was givenon February 4, 1954, that must be held to be the date on whichpart payment was made. It has been held by the High Court thatGthe acceptance of the post-dated cheque on February 4, 1954was not an unconditional acceptance. Where a bill or note, isgiven by way of payment, the payment may be absolute orconditional, the strong presumption being in favour of conditionalpayment. It followed from the finding of the High Court that theHpayment was conditional i.e. that the payment will be credited

to the person giving the cheque in case the cheque is honoured.In the present case the cheque was realised and the question iswhat is the date of payment in the circumstances of this casefor the purpose of Section 20 of the Limitation Act. Section 20inter alia lays down that where payment on account of debt ismade before the expiration of the prescribed period by the personliable to pay the debt, a fresh period of limitation shall be computedfrom the time when the payment was made. Where thereforethe payment is by cheque and is conditional, the mere deliveryof the cheque on a particular date does not mean that the paymentwas made on that date unless the cheque was accepted asunconditional payment. Where the cheque is not accepted as anunconditional payment, it can only be treated as a conditionalpayment. In such a case the payment for purposes of Section20 would be the date on which the cheque would be actuallypayable at the earliest, assuming that it will be honoured. Thusif in the present case the cheque which was handed over onFebruary 4, 1954 bore the date February 4, 1954 and washonoured when presented to the bank the payment must be heldto have been made on February 4, 1954, namely, the date whichthe cheque bore. But if the cheque is post-dated as in the presentcase it is obvious that it could not be paid till February 25, 1954which was the date it bore. As the payment was conditional itwould only be good when the cheque is presented on the date itbears, namely, February 25, 1954 and is honoured. The earliestdate therefore on which the respondent could have realised thecheque which he had received as conditional payment onFebruary 4, 1954 was 25th February, 1954 if he had presented iton that date and it had been honoured. The fact that he presentedit later and was then paid is immaterial for it is the earliest dateon which the payment could be made that would be the datewhere the conditional acceptance of a post-dated chequebecomes actual payment when honoured. We are therefore ofopinion that as a post-dated cheque was given on February 4,1954 and it was dated February 25, 1954 and as this was not acase of unconditional acceptance, the payment for the purposeof Section 20 of the Limitation Act could only be on February25, 1954 when the cheque could have been presented at theearliest for payment. As in the present case the cheque was AB

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Ahonoured it must be held that the payment was made on February25, 1954. It is not in dispute that the proviso to Section 20 iscomplied with in this case, for the cheque itself is anacknowledgment of the payment in the handwriting of the persongiving the cheque. We are therefore of opinion that a fresh periodof limitation began on February 25, 1954 which was the date ofBthe post-dated cheque which was eventually honoured.”

15. In the above case, in the plaint itself it was noticed thatalthough the promissory note was executed on 04.02.1954 and the suitwas filed on 22.04.1957 but the plaintiff had relied on payment of aCcheque on 25.02.1954 to bring the suit within time. Paragraph 1 of thejudgment is to the following effect:- “Two questions of law arise in this appeal by special leave againstthe judgment of the Patna High Court. The facts which havebeen found by the High Court and which are necessary for ourDpurposes may be briefly narrated. The appellant was thedefendant in a suit filed by the plaintiff-respondent for recoveryof money on the basis of a promissory note for Rs 10,000executed on February 4, 1954 by the defendant-appellant in favourof the plaintiff-respondent. 12 per cent per annum interest wasto run on the promissory note which was payable on demand orEto the order of the plaintiff-respondent. The suit was filed onFebruary 22, 1957 and was thus obviously beyond time fromFebruary 4, 1954. The plaintiff-respondent relied on a paymentby cheque on February 25, 1954 to bring the suit within time.”

16. The judgment of this Court in Jiwanlal Achariya (supra)Fdoes not lay down that even without pleading all facts for claiming startof fresh period of limitation, the plaintiff is entitled for the benefit ofSection 19. The next judgment relied by Shri Singhvi is Kamla Deviand Others (supra), in which case, this Court was considering Section19 of the Limitation Act, 1963. This Court relied on anGacknowledgement of payment for holding that from the date ofacknowledgment of order period of limitation shall start. In paragraph4 of the judgment following has been laid down:- “4. The last contention pressed was that the personal decreeshould not have been granted, because it was barred by limitation.HThe basis for this contention is that the payment of Rs 25, which has been acknowledged on the registered mortgage deed, wasnot itself by a registered endorsement and, therefore, the plaintiffwas entitled to a period of three years only, even if Section 19may give an extension of limitation. We see no merit in thiscontention. The function of Section 19 is to provide a later dateto count the period of limitation afresh, and that fresh period oflimitation will be computed from the time when theacknowledgement is signed. Nothing turns on whether theacknowledgement is itself registered or not. The office of Section19 being to postpone the date of reckoning limitation and not tocreate a different substantive period of limitation, the latterdepends upon the appropriate article of the Limitation Act whichapplies to the suit. In this case, the mortgage document wasregistered and the personal covenant was contained in theregistered deed. Therefore, Article 116, which gives a period ofsix years, applies. Thus, the fresh period of limitation will be sixyears and it has to be counted from the date ofacknowledgement, namely, August 31, 1940. In this view, therein no merit in the plea of limitation either. This is obviously a casewhere the revisional court had missed a fact apparent upon therecord and, therefore, thought it fit, in the exercise of its discretionto review its judgment. Justice has thereby been furthered ratherthan frustrated. We are not here concerned with an endorsementon the deed as constituting a cause of action.”

17. The above judgment noticed the function of Section 19, whichprovides for a later date to count the period of limitation afresh. Therecannot be any dispute to the preposition as laid down by this Court inabove case.

18. We may also notice the proviso of Order VII Rule 6, whichhas been added by Act 104 of 1976, which provided that the Court maypermit the plaintiff to claim exemption from the law of limitation on anyground not set out in the plaint, if such ground is not inconsistent withthe grounds set out in the plaint. The proviso of Order VII Rule 6cannot come to the rescue of the plaintiff since as noticed above, theplaintiffs have specifically pleaded in paragraph 21 that the provisionsof the Limitation Act are not applicable since Act, 1993 has overridingeffect. The trial court in decreeing the suit of the plaintiff has acceptedthe above submission and has held that Limitation Act, 1963 is notapplicable.

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A19. We may further notice that paragraph 24 of the plaint, whichis a paragraph of cause of action for the suit, which refers to datebeginning from 31.03.1992 till 05.10.1993, i.e., the beginning from thefirst supply order i.e., 31.03.1992 and date of last supply order, i.e.,05.10.1993, but cause of action is not claimed from the date 05.03.1994,Bwhich was the date when the last payment was received by thepetitioner. The petitioner in the plaint has clearly not pleaded for benefitof Section 19 nor has brought necessary facts to enable the Court toconsider the claim under Section 19. We, thus, are of the view thatpetitioner is not entitled for benefit of Section 19 of the Limitation Act and there is no error in the judgment of this Court dated 23.01.2019Cholding that the suit of the plaintiff was barred by time.

20. We may also notice few submissions of Dr. Singhvi in supportof his plea that the petitioner was entitled for benefit of Section 14. Inour judgment dated 23.01.2019, we have already taken the view thatbenefit of Section 14 of Limitation Act cannot be claimed by the plaintiffDsince writ petition, which was filed by the Association was by differententity. The question of benefit of Section 14 having been specificallyconsidered and rejected by this Court in its judgment dated 23.01.2019,we do not find any error apparent on the aforesaid ground. Moreover,present is a case where writ petition filed by Association was dismissedEon 28.08.1997 subsequent to filing of the suit by plaintiff on 10.01.1997.Furthermore, after the judgment of the learned Single Judge on28.08.1997 Association has filed a writ appeal challenging the saidjudgment, which facts also detracts from fulfilling the conditions asrequired for extending the benefit of Section 14 of the Limitation Act.F21. Insofar as other submissions of Dr. Singhvi that Act, 1993 is F21. Insofar as other submissions of Dr. Singhvi that Act, 1993 isretroactive in nature and further amount due at the time of thecommencement of the Act ought to attract interest of the Act, 1993,all these submissions have been elaborately considered in the judgmentdated 23.01.2019, which have been considered on merits. The scopeof review is limited and under the guise of review, petitioner cannot beGpermitted to reagitate and reargue the questions, which have alreadyben addressed and decided. The scope of review has been reiteratedby this Court from time to time. It is sufficient to refer the judgmentof this Court in Parsion Devi and Others Vs. Sumitri Devi andOthers, (1997) 8 SCC 715, wherein in paragraph 9 following hasHbeen laid down:- “9. Under Order 47 Rule 1 CPC a judgment may be open toreview inter alia if there is a mistake or an error apparent onthe face of the record. An error which is not self-evident andhas to be detected by a process of reasoning, can hardly be saidto be an error apparent on the face of the record justifying thecourt to exercise its power of review under Order 47 Rule 1CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPCit is not permissible for an erroneous decision to be “reheard andcorrected”. A review petition, it must be remembered has a limitedpurpose and cannot be allowed to be “an appeal in disguise”.”

22. We, thus, do not find any merit in Review Petition (C) Nos.786-787 of 2019, which is accordingly dismissed.

23. Shri Ajit Kumar Sinha, learned senior counsel in support ofthe review petition contended that there is an error apparent on theface of record in observation of the Court made in paragraph 85 ofthe judgment. Some of the supplies have been made prior to thecommencement of the Act, 1993, i.e., prior to 23.09.1992. It is submittedthat some of the supplies were made after 23.09.1992, hence thepetitioner was entitled for the benefit of interest under the Act, 1993.He submits that in ground (b), it has been mentioned that details ofsupply and reason of corresponding details have been noticed by thetrial court in the judgment dated 30.09.2002 passed in Money Suit No.32of 1996. Reference has been made to Annexure – P/3 at Page – 71@ Page 88 of Civil Appeal No.8450 of 2016. We have perusedAnnexure P/3, the judgment of the trial court dated 30.09.2002, ourattention has been invited to page 88 of the judgment, where referenceof 12 bills have been made in the judgment, which is to the followingeffect:- “Stated specifically, it is the plaintiff’s evidence that against thesupply of poles to the defendants different divisions on receiptof orders from the defendants, the plaintiff submitted a numberof twelve bills for the payment to the defendants to be reiteratedas:

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24. A perusal of the above chart given in the judgment indicatesthat the date 29.09.1992 is a date of bill for the payment for supply ofthe materials by the plaintiffs. In the judgment dated 23.01.2019, weDhad observed that “there being nothing on record to come to theconclusion that any supply was made after the enforcement of the Actso as to enable the appellant to claim interest under Section 3 read withSection 4 of the Act, 1993, we are of the view that judgment of theHigh Court does not need any interference in this appeal”.

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25. We, thus, do not find any merit in the submission of the learnedcounsel for the appellant that there is error apparent on the face ofrecord in observation of the Court made in paragraph 85 of thejudgment, the said submission is rejected and the Review Petition (C)No. 789 of 2019 is dismissed.

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26. Shri Basava S. prabhu Patil, learned senior counsel appearingfor the petitioner contends that this Court in the judgment dated23.01.2019 has dismissed the appeal of the petitioner as not maintainable,Gwhich is an error apparent on record. He submits that the appeal filedby the petitioner being Civil Appeal No. 8445 of 2016 against the reviewjudgment of the High Court dated 19.03.2013 was maintainable.

27. Shri Patil submits that in the judgment dated 23.01.2019, theIssue No.6 was specifically framed regarding maintainability of the CivilHAppeal No.8445 of 2016. The maintainability of the appeal was specifically considered and answered in paragraphs 80. 81 and 82 ofthe impugned judgment. The submission of Shri Patil is that since theCivil Appeal No.8445 of 2016 was against the judgment of the HighCourt dated 19.03.2013 by which review petition was partly allowedby allowing interest @9% p.a., against which judgment, the appeal wasmaintainable and withdrawal of earlier appeal by the petitioner was notfatal. The appellants were issued two supply orders dated 17.02.1992and 17.03.1992. The suit was filed on 16.05.1994 seeking decree withinterest, which trial court decreed. Assam Electricity Board filed a firstappeal, which was allowed by the High Court holding that bills raisedby the appellants were cleared by the Assam Electricity Board prior tocommencement of Act, 1993, hence the appellant was not entitled forbenefit of Act, 1993. Special leave petition filed against the judgmentof the High Court dated 05.04.2001 was permitted to be withdrawn byfollowing order:- “Learned counsel for the petitioner seeks leave to withdraw thespecial leave petition. He states that he will move the High Courtin review stating that it has erred in recording that “all the billswere paid and cleared earlier to the commencement of the Act.”The special leave petition is dismissed as withdrawn accordingly.”

28. After the aforesaid judgment of this Court permitting thepetitioner to withdraw the special leave petition, a review petition wasfiled, which was partly allowed on 19.03.2013. A perusal of the judgmentdated 19.03.2013 indicates that the grounds on which the petitionerprayed liberty to file review was not proved in the review petition. TheHigh Court in the review judgment did not hold in favour of the petitionerthat he was entitled for the benefit of Act, 1993 rather the High Courtaccepted the submission of the petitioner that plaintiffs are not debarredfrom claiming cost under Section 34 CPC, Section 61 of the Sale ofGoods Act, 1930 or Section 3 of the Interest Act, 1978 or in equityonly on the ground of principal amount. The High Court granted interestat the rate of 9% per annum. The Civil Appeal No. 8445 of 2016 hasbeen filed against the review judgment but obviously the appeal is notagainst the 9% interest granted to the petitioner. Review judgment doesnot grant interest under Act, 1993 since the High Court in the reviewjudgment did not interfere with the earlier finding that petitioner is notentitled for benefit under Act, 1993. The review on the ground on whichliberty was sought was in essence not accepted by the High Court in AB

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Aits review judgment. Moreover, in judgment dated 23.01.2019, themaintainability of appeal having been considered and found against thepetitioner, we do not find any ground to review the petition.

29. In result, Review Petition (C) Nos. 786-787 of 2019, ReviewPetition (C) No. 789 of 2019 and Review Petition (C) No. 788 of 2019Bare dismissed.

Nidhi Jain

Review Petitions dismissed.

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