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Report No. 3

Chapter IX

Suits on Other Claims

137. Suits for Accounts.-

Articles 85, 88, 89, 90 and 106 relate to suits for accounts. Of these, Article 85 is based on well-established commercial usage and it would not be advisable to change it. We do not recommend any change in regard to the other Articles also. All these Articles may, therefore, be retained in their present form.

138. Suits for a declaration.-

Articles 92, 93, 118, 119 and 129 relate to suits for a declaration in respect of various matters. In Articles 92 and 118, the starting point of limitation is the knowledge of the plaintiff. These Articles should be retained in their present form except that the period of limitation in the case of Article 118 should be reduced to 3 years. Articles 93, 119 and 129 may be consolidated into one Article and the date when the right to sue first accrues may be made the starting point of limitation. For all these Articles, we recommend that a uniform period of three years should be provided.

139. Suits to set aside documents and decrees.-

Articles 91 and 114 fall under this group. A consolidated Article with a period of three years from the date when the facts entitling the plaintiff to have the instruments cancelled or set aside or the contract rescinded, first becomes known to him, may be substituted. Suits for setting aside decrees should also be brought under this Article.

140. Article 44 which falls under this head has to be retained in its present form. It applies to voidable transactions and time does not begin to run until the ward attains majority, the period being three years. If this Article be deleted and the matter is left to be governed by Article 144 the quondam minor would have 12 years from the date of majority. The intention of Article 44 is to limit the time for the exercise of the option to set aside the transfer to three years after attaining majority. To extend the period of 12 years would result in keeping the alienee's title in an unsettled State for a long period. It is well-settled that disputes as to title should be decided as early as possible.

141. Where there is more than one ward, the provisions of section 7 will apply. There is, however, one difficulty which has to be provided for. Section 6(3) will not apply where Article 44 applies. If the ward dies before attaining majority or within three years after attaining majority, the law is not certain on the question as to the period within which the legal representative should institute a suit (vide Alemelu Amma v. Krishna Chetty, AIR 1954 Mad 585 overruling AIR 1930 Mad 821 In the case of an assignee it was held that the option should be exercised within three years after attaining majority. The same should apply to a legal representative also.

If the ward died while a minor, leaving a legal representative who is a major or is under no disability, we consider that the latter should have a period of only three years from the date of death of the minor ward. The question remaining to be considered is whether a provision is necessary to cover cases where such legal representative is under any disability or when the ward leaves more than one legal representative, all such legal representatives are under disability. We consider that such cases would be very rare and we do not therefore deem it necessary to make any special provision.

142. For relief on the ground of fraud or mistake.-

Articles 95 and 96 relate to suits for setting aside a decree obtained by fraud or for relief on the ground of fraud or mistake; the period of limitation is 3 years from the time when the fraud or mistake becomes known to the plaintiff. In the proposed section 18 we have provided that for relief on the ground of fraud or mistake, the period of limitation should not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or with reasonable diligence could have discovered it. Suits for relief on the ground of fraud or mistake may be founded either on contract or on tort or the relief claimed may be to set aside an instruments or a decree. If the former, the suit would come under the Article for contract and tort read with section 18 and the result would be the same as that provided in the present Act. If the relief claimed is to set aside an instrument on the ground of fraud or mistake or to set aside a decree on the ground of fraud the suit will fall under the proposed Article 23. It is, therefore, unnecessary to retain Articles 95 and 96.

143. It is no doubt true that the proposed Article which is to replace Articles 91 and 114, would provide that the limitation should commence to.run from the date of the knowledge of the facts entitling the plaintiff to the relief claimed. Suits which fall under the proposed Article may also be covered by section 18; but there may be cases in which the relief to cancel or set aside an instrument may not be based either on fraud or mistake and, therefore, by way of abundant caution it would be safer to retain the proposed Article though this may result in some overlapping.



Limitation Act, 1908 Back




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