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Report No. 89

11.11. Some practical aspects of importance.- Apart from these theoretical aspects, it should also be mentioned that there is an important practical aspect which cannot be overlooked. When a court embarks upon an inquiry into the period of limitation, such an inquiry covers not merely the time limits proper (the arithmetical periods), but also various detailed rules for the computation of those periods. If we were to expect courts to have regard to foreign law of limitation, that would mean calling upon the court to study, understand and apply the foreign law in all its complexity and profusion. This would be an extremely difficult task.

11.12. For all these reasons, we have been unable to persuade ourselves to accept the criticism made by Cheshire and others1 of the traditional English Ru.-a rule which has been adopted in the American Restatement also.2

1. Paras. 11.6 and 11.8, supra.

2. Para. 11.5, supra.

11.13. Policy considerations.- We may add that on grounds of policy also, a court ought not to be bound by the rules of limitation applicable under a foreign lex causae. The time limit may be either unreasonably short or unreasonably long.

11.14. Difficulty of ascertaining foreign rule.- It is not always an easy task to ascertain foreign law. This could prove an onerous burden on the courts. The burden would be all the more onerous for the Indian courts to ascertain the foreign law of limitation of 150 countries by paying for the fees and costs of foreign experts which would unnecessarily delay the disposal of cases.

It should be remembered that, as mentioned above, if the foreign law is to be applied, the Indian court will have to study not only the time limits, but also the principles for the computation of periods of limitation. This would be a stupendous undertaking.

11.15. Suits on causes of action other than contracts.- Therefore, we see no reason to disturb the principle underlying section 11. Some matters of detail concerning the section may now be dealt with. Though sub-section (2) of section 11 is confined to contracts, the position would not, in substance, be different for other causes of action that arise outside the territories to which the Act extends. The section has been held not to be exhaustive.1 Thus, for example, the same principle applies to execution2 Again, if a suit is for conversion, the same principle would apply.3

1. Dickie & Co. v. Mun. Board, AIR 1956 Cal 216 (219) (Bachawat, J.).

2. Nabibhai Vasirbhai v. Dayahhai Amulak, AIR 1916 Born 200 (201, 202): ILR 40 Born 504.

3. Ruckmaboyee v. Luloobhoy Moththand, (1851-1855) 5 MIA 234 (PC).

11.16. History of section 11 studied from the point of view of scope.- In this context, the history of the section is interesting. Section 12 of the Act of 1871 provided as unde.-

"12. No foreign rule of limitation shall be a defence to a suit in British India on a contract entered into a foreign country, unless the rule has extinguished the contract, and the parties were domiciled in such country during the period prescribed by such rule."

In 1877, a positive assertion about the applicability of the Indian Act to suits instituted in British India was made. Section 11 of that Act read as unde.-

"11. Suits instituted in British India on contracts entered into a foreign country are subject to the rules prescribed by this Act. No foreign rule of limitation shall be a defence to a suit instituted in British India on a contract entered into a foreign country, unless the rule has extinguished the contract, and the parties were domiciled in such country during the period prescribed by such rule."

11.17. Comme.-Khandesh (1907).- In the draft Bill of the Indian Limitation Act, 1908, no change from the Act of 1877 was proposed as regards this section. However, one comment1 was received which was as unde.-

"The words 'or obligation incurred in' should be added after 'contracts entered into', in order to show that suits, of whatever class the cause of action in respect of which arises in foreign country, are subject to these provisions."

This is an interesting comment raising as it does a point which we ourselves have apart from the comment pursued.

1. H.S. Phadnis, Acting District Judge, Khandesh, No. 2751 dated 30th November, 1907, National Archives Papers.

11.18. Need for widening the section.- To revert to the present section and current needs, we wish to point out that the principle of private international law upon which the section is based, makes no distinction between suits based on contracts and other suits. Practical considerations also justify a widening of the section so as to make it applicable to all causes of action. There is no reason for adopting a different approach as to non-contractual cause, of action. We think that the section should be widened.1

1. For a draft of revised section 11, see para. 11.20, infra.

11.19. Section to be extended to proceedings other than suits.- There is another point in regard to which also the ambit of the section can be conveniently widened. The section, as it stands at present, is confined to suits; we are of the view that it should be extended to all proceedings. Although proceedings other than suits wherein the question of competition between Indian and foreign laws of limitation may be in issue are not many, there is no reason why the legislature should not recognise the principle underlying section 11 and give it the widest amplitude.

Irrespective of the character of the proceeding, if the remedy sought is not barred by the law of limitation of the forum, then in that forum the law should allow the proceeding to be maintained, even though it may be barred by the law of limitation of the country where the cause of action for the particular proceeding arose. The principle on which section 11 is bas.-a matter which has been already elaborated in the preceding paragraph.-should be regarded as equally applicable, whether the litigation is in the shape of a suit or in the shape of any other proceeding. Accordingly, we propose a widening of the section on this point also.2

1. Paras. 11.2 to 11.4, supra.

2. For the draft see para. 11.20, infra.

11.20. Recommendation.- In the light of the above discussion, we recommend that section 11 should be revised as unde.-

Revised section 11

"11. (1) Suits and other proceedings instituted in the territories to which this Act extends on causes of action arising in the State of Jammu and Kashmir or in a foreign country shall be subject to the rules of limitation contained in this Act.

(2) No rule of limitation in force in the State of Jammu and Kashmir or in a foreign country shall be a defence to a suit or proceeding instituted in the said territories on a cause of action arising in that State or in a foreign country unle.-

(a) the rule has extinguished the right which the cause of action is founded; and

(b) the parties were domiciled in that State or in the foreign country during the period prescribed by such rule."

The Limitation Act, 1963 Back

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