Report No. 89
37.62.Earlier Report of the Law Commission.- Thus, the period of one year in the Act of 1871 and Draft Limitation Bill, 1877 was changed in 1877 to three years. The Report1 of the Law Commission on the Act of 1908 did not suggest any change in this regard.
1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 1.
37.63.Amendment as regards starting point, and also for adding intellectual property and injunction.- There is a defect in the third column of the article under consideration. We think that it would not be reasonable to allow time to run against a person, when he does not know that any of his rights have been infringed. It is also necessary to widen this article so as to add, in the first column, at the end, the words "or for restraining such infringement". The object is to cover a suit for injunction.
As to the meaning of the words "exclusive privilege" occurring in Article 88, some comment seems to be in order, because these words are not very precise. We are of the opinion that in order to introduce a modicum of precision in this article, right to "Intellectual Property" should also be mentioned, alongwith "copyright".
37.64.Recommendation.- To make the discussion concrete, we recommend the following re draft of Article 88, so as to cover the points made above1:
|"88.||For compensation for infringing copyright or right to other intellectual property, or any other exclusive privilege or for restraining such infringement.||
|When the infringement first becomes known to the plaintiff."|
1. Para 37.63, supra.
37.65.Article 89.- We now proceed to Article 89, which reads as unde.-
|"89.||To restrain waste.||
|When the waste begins."|
It is identical with Article 41 of the Acts of 1908 and 1877. There was no comparable provision in the Act of 187*.
* It seems to be a misprint for 1871.
37.66.No change needed.- In the absence of practical difficulties, we see no reason to disturb the present article.
37.67.Article 90.- Article 90 reads as unde.-
|"90.||For compensation for injury caused by an injunction wrongfully obtained.||
|When the injunction ceases."|
It is identical with Article 42 of the Acts of 1908 and 1877. In the Act of 1871, Article 86 reads as unde.-
|"86.||For compensation for damage causes by an injunction wrongfully obtained.||
|When the injunction ceases."|
When the draft of the Act of 1908 was circulated for comments, a District Judge suggested that attachment should be brought within the scope of those provisions. His suggestion was as follow.-
"Article.-After the word 'an', I would insert1 'attachment'. However, this suggestion does not seem to have been accepted.
1. Dewan Bahadur S. Gopalacharia Avargal, District Judge, Guntur, Letter No. 2155, dated 30th December, 1907, National Archives File, 1908, Paper No. 11.
37.68.Need for amendment to cover wrongful attachment.- We have given some thought to the matter. In our view, there is a case for adding in Article 90 a suit for compensation for wrongful attachment. No doubt, as a summary remedy, section 95 of the Code of Civil Procedure, 1908 provides for the grant of compensation for arrest before judgment or attachment before judgment or issue of a temporary injunction, but this does not, bar a regular suit for compensation for such wrongful act2 arrest, attachment or injunction.
At present, it would appear that wrongful attachment is not a continuing wrong2. The article relating to compensation for statutory acts may not apply to attachment. As to attachment before judgment, old Article 29 of the Act of 1908 (relating to wrongful seizure) seems to have been applied3, under the Act of 1908. However, it is desirable to make Article 90 comprehensive, and, for this purpose, to cover an attachment wrongfully obtained.
1. Harkumar v. Jagatbandhu, AIR 1927 Cal 247.
2. Pannaji v. Firm Senaji, 1930 ILR 53 Mad 621.
3. Yellammal v. Ayyappa Naick, 1914 ILR 38 Mad 972. (Scope of Article 29 of the Act of 1908 fully discussed).
37.69.Recommendation.- Accordingly, we recommend that Article 90 should be revised as unde.-
|"90.||For compensation injury caused by n injunction or attachment wrongfully obtained.||
|When the injunction or attachment ceases."|
[One could even add arrest but for the fact that certain specific articles exist on the subject.]
37.70.Article 91.- Article 91 reads as unde.-
|"91.||(a) For compensation for wrongfully taking or detaining any specific movable property lost, or acquired by theft, or dishonest misappropriation or conversion.||
|When the person having the right to the possession of the property first learns in whose possession it is."|
|(b) For compensation for wrongfully taking or injuring or wrongfully detaining any other specific movable property.||
|When the property is wrongfully taken or injured, or when the detainer's possession becomes unlawful."|
It corresponds to Article 48 and 49 of the Acts of 1908 and 1877.
In the Act of 1871, six articles covered the subject-matter, viz., Articles 48, 47, 35, 34, 33, and 26, with varying periods. It is unnecessary to quote them for the present purpose, since they do not throw particular light on many important ingredients of the present article. In 1877 and 1908, all these articles were brought under two articles, and a uniform period of limitation of 3 years was provided. The Law Commission in its Report1 on the Act of 1908 recommended a different arrangement of the articles, but that recommendation has not been accepted.
1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 121 and Articles 1, 2, 6.