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Report No. 89

15.10. Agent in Ind.-effect of.- Another point relating to section 15 is concerned with cases where the defendant had an agent in India. A Full Bench of the Calcutta High Court1 decided that section 13 of the Limitation Act, 1877 which excluded the time during which a defendant had been absent from British India in computing the period of limitation for any suit applied even where, to the knowledge of the plaintiff, the defendants, (partners in a firm), were during the period of their absence, carrying on business in British India through an authorised agent who was authorised to bring suits in India. The Full Bench overruled an earlier case of the same High Court,2 and observe.-

"In support of this contention the case of Harrington v. Gonesh Roy is strongly relied on by the defendants. I doubt, however, whether, having regard to the clear and precise language of section 13, that decision is well founded, for it seems to me that, whatever may be the common sense of the decision, it can only be arrived at by interpolating into the section words that are not there, words to the effect that the time of absence is not to be excluded if the defendants are, during the period of personal absence, represented by a duly constituted agent in British India.

Although we have been referred to the case of Hawkins v. Gathercole, (1856) 6 De GM & G 1, as to the manner in which statutes are to be construed, I do not see my way to put the construction upon the section for which the defendants contend; if we did so; I think we should be rather legislating than adjudicating upon the section as it stands.

It may well be that it would be expedient, not to allow the time of absence from British India to be excluded, if the defendants be carrying on business in British India, and be represented by a duly authorised agent during such absence; but if this change is to be made, it must be made by the Legislature.

Reading the language of section.-a section be it remembered in a Limitation Act, the provisions of which must be construed strictly, and which, when set up as a defence, must not be extended to cases which are not strictly within the enactment, whilst exceptions of an exemption from its operation are to be construed liberally (see per Lord Cranworth in Boddan v. Morely, (1857 1 De G& Jones 1 (23)) reading, I say, that section according to the ordinary significance of the words used, I think we are not warranted in holding that the section does not apply to cases where the defendants are during the period of absence, carrying on business in British India through an authorised agent.

In other words, I do not see my way to getting over the clear and precise language of the section, feeling as I do that the words of the section are too strong against the view contended for by the defendants, and that we could only support that view by the interpolation of words to the effect I have stated above."

1. Poorno Chunder Ghos- v. Sassoon, 1897 ILR 25 Cal 476 (FB).

2. Harrington v. Gonesh aoy, 1884 ILR 10 Cal 440.

15.11. The Full Bench ruling based itself decision on the strict interpretation of the provisions of section 13 of the Limitation Act of 1877 (corresponding to section 15 of the present Act). In Harrington's case,1 the division bench had held that section 13 of the 1877 Act did not apply to a case when to the knowledge of the plaintiff, the defendant, though not residing in British India, is represented by a duly constituted agent and mookhtar. Powerful arguments were advanced to reverse the finding of the District Judge, who had held otherwise and the court said:

"The Judge relies on section 13 of the Limitation Act, which provides that 'in computing the period of limitation prescribed for any suit, the time during while the defendant has been absent from British India shall be excluded'. He goes on to say 'admittedly Mr. Harrington,' the defendant in this case, 'has been so absent from the date of dispossession till now'. It seems, however, that Mr. Harrington is "represented in this country by Mr. Crowdy, who, in the first instance, was made a defendant in the case as Manager and Mookhtar of the Bhugwanpur Factory.

If the Judge's interpretation of section 13 were correct, there would be no limitation at all as against a proprietor residing in England, although suits might be conducted for and against him through his agent in this country. It is impossible to believe that this was the intention of the law."

1. Harrington v. Gonesh Roy, 1884 ILR 10 Cal 440 (442).

15.12. A reading of the judgments referred to above shows that the judges in both the Benches were in unison that it would be expedient not to allow the time of absence from British India to be excluded under section 15(5), if the defendant is represented by a duly authorised agent during such absence.

The difference between the approaches of the two Benches was that while the Full Bench in the later ruling felt hamstrung by the language of the section and left it to the legislature to amend it, the Division Bench in the earlier ruling sought to put an interpretation on that section which in their opinion accords with the true intention of the legislature".

15.13. Whatever way one looks at it, seems to us most incongrue.-considering the fact that more and more of non-residents are carrying on business in India through their authorised agen.-that the non-residence in India of such a defendant himself should ensure to the advantage of a plaintiff, who knows that the defendant could be served through a duly authorised agent in India.1

1. Cf. Saynji Rao v. Mndhnv Rao, AIR 1929 Born 14 (20).

15.14. Aspect of conflict of laws.- It could as well happen that a judgment against the defendant, operating through an agent, would be in conformity with the tenets of private international law also. By appointing an agent to use or defend, the absentee defendant has, in a sense, submitted to the jurisdiction of the court where the agent is working for gain. However, we need not express any firm view on this point. This aspect in any case is not directly material to the present issue.

In view of the above discussion it is desirable that a suitable Explanation should be added to section 15(5) on the above point.1

1. See paras. 15, 19, infra; section 15, Explanation II, as proposed.

15.15. Both parties residing abroad.- We now deal with another situation to which section 15(5) applies. Considering the number of Indians going abroad for trade, commerce or seeking livelihood, it could as well happen that the plaintiff and the defendant were both residing outside India during the relevant period and the plaintiff could have obtained redress without much difficulty, in the court of that country where they were so residing. In such a case, it would be unjust to allow such a plaintiff the benefit of exclusion of the period during which the defendant was residing outside India, when the plaintiff himself was also during the same period, outside India and could have sued the defendant in the foreign country.

15.16. A situation of the nature contemplated above is not merely hypothetical; such a case1 did occur more than a century ago in the then North West Provinces and was decided under the Limitation Act of 1859.

This was a suit brought in by a wife against her husband for the recovery of the amount due to her on account of dower payable under a written agreement and for maintenance and other reliefs. The parties were married in England in 1863, according to Mohammedan law. The defendant-husband left England and eventually returned to India in December, 1865, only to be followed by his wife in June, 1869, who, immediately, upon arrival, instituted the suit in India.

It was argued by the wife-plaintiff that she was entitled to rely on the provisions of section 13 of the Limitation Act, 1859 'corresponding to present section 15(5)] and to exclude, from the computation of the periods of limitation applicable to her several claims, the time during which the defendant husband was absent from British India.

This contention was countered by the husband-defendant, according to whom, when both the parties were living in England, to put a construction on section 13 and to allow one of the parties to take advantage of the absence of the other party from British India would lead to extremely inconvenient results. Repelling the defendant's argument, the High Court said:

"It is true that such a construction may lead to very inconvenient results.2 A person may resides out of India for years, and according to the law of limitation of the country in which he resides, the remedy against him in respect of a cause of action of the nature of a personal action may be lost, yet, on his coming to India, it will revive. We can hardly conceive that this was the intention of the legislature.

It would seem that in the Act no provision has been made for cases in which the cause of action arises in a foreign country, or in which, at the time the cause of action accrues, both parties are residing in one and the same foreign country possessing tribunals to which they might have recourses; at the same time, it is to be remembered that the law of limitation is a law which bars the remedy and does not destroy the right, and therefore, if by any of its sections we find indulgence, shown to suitors, we are bound to give full effect to the language in which that indulgences conceded."

1. Mahomed Museeh-ood-deen Khan v. Clara lane Museeh-ood-deen, 2 NWPHCR 173 (case under Limitation Act of 1859); quoted in Muthuknnni v. Andappa, AIR 1955 Mad 96 (FB).

2. Emphasis added.

15.17. Questions raised by the judgment.- The judgment referred to above raises two important issues: first, whether the Indian courts should entertain a suit by a person based on a cause of action arising in a foreign country when his remedy to obtain redress in the foreign court would have been barred on account of the law governing actions in that foreign country? Secondly, whether the exclusion of time allowable under section 15(5) should also be granted even if the plaintiff was residing in the same foreign country where the defendant was residing during the relevant period?

As regards the first point, it falls within the ambit1 of section 11. However, the second limb of the suggestion in the judgment, namely, that the benefit of section 15(5) should not be available to the plaintiff who, during the relevant time, was also residing in the same foreign country where the defendant also resided, deserves acceptance in our opinion.

A plaintiff who could, but did not choose to, resort to the court of competent jurisdiction in the foreign country where he was then residing should not in an Indian court be allowed the advantage of an extension of limitation period. Accordingly, we recommend that an exception should be engrafted on section 15(5) on the subject.2

1. See discussion as to section 11, supra (Chapter 11).

2. See paras. 15, 19, infra, section 15(5), Exception, as proposed.

15.18. Frequent trips to foreign countries.- The draftsman of section 15(5) may not have focussed his attention on the possibility of a defendant flitting across the globe more than once during the period of limitation. But scientific advances in jet propulsion have made such frequent trips possible. The courts have dealt with such a situation and given to the plaintiff the right to take into account all such periods during which the defendant was absent.1-2 This view seems to be in conformity with the intendment of sub-section (5), and we do not recommend any amendment of the sub-section for this purpose.

1. Mohammed Sulaiman Rowther v. N.K.A. Mohammed Ibrahim, (1967) 2 MLJ 483.

2. Ismailji Haji Halimbhai v. Ismail Abdul Kadar, AIR 1921 Born 460 (461): ILR 45 Born 1228.

15.19. Recommendation relating to section 15.- In the light of the above discussion, we recommend the following amendments to the law on the topics dealt with in section 1.-

(i) An exception should be inserted below section 15(5) of the Limitation Act as under:

"Exception.- Nothing in sub-section (5) shall apply to a period subsequent to the date on which the cause of action arises, being a period during whi.-

(a) both the parties were residing in one and the same foreign country and the plaintiff was aware of the residence of the defendant; and

(b) there were, in the foreign country, properly constituted courts or tribunals to which the parties had, or could have had, recourse for enforcing the cause of action."1

(ii) The following Explanations should be added to section 15 of the Limitation Act:

"Explanation.-The attachment of a decree under rule 53 of Order XXI in the First Schedule to the Code of Civil Procedure, 1908 does not amount to a stay of execution of the decree within the meaning of sub-section (1)2.

"Explanation I.-For the purposes of this section, a defendant shall not be deemed to have been absent from India during any period during which he had, to the knowledge of the plaintiff a duly constituted agent in India, authorised to institute and defend legal proceedings on his behalf in India."3

(iii) Amendment of the Indian Contract Act, 1872 by the insertion of new section 44A in that Act, may also be carried out, for resolving the controversy relating to decree against one of several joint promisors.4

1. See para. 15.17, supra.

2. See para. 15.3, supra.

3. See para. 15.14, supra.

4. See para. 15.9, supra.

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