Report No. 3
23. There is some conflict of decisions between the High Courts as to when exactly time ceases to run in the case of applications by notice of motion. One view is that it stops when the application is filed and the other is that it stops only when the notice of motion is actually taken up by the Court.1 This controversy may be set at rest, by fixing a definite point of time in this behalf. We think that the view more favourable to the applicant should be adopted and, therefore, recommend that the time should cease to run on the date on which the application is properly presented in court. A suitable amendment on those lines may be effected.
1. Gallop (in re:), 25 QBD 230; Kuttayan v. Ellappa, 17 MLJ 215 and Venkappiya v. Nazerally, 47 Bom 764.
24. With regard to a counter-claim and a claim for set-off, difficulty is experienced as to the date on which limitation is to be reckoned. We think that in respect of a claim for set-off which, unlike a counter-claim, arises from the same transaction, it should relate back to the date of institution of the suit. Setoff should include a legal set-off as well as an equitable set-off. This follows the rule under the English Limitation Act, 1939 (vide section 28 of that Act). In respect of a counter-claim however, it should be regarded as a separate suit filed on the day on which such claim is made.