The Federal Bank Ltd. v. Ramakrishna Pillai — 1991 DIGILAW 226 (KER)

Judgment :- The plaintiff in O.S. No. 51 of 1983 on the file ofthe Sub Court, Kottarakkara is the appellant. The suit is for damages. 2. The brief facts of the case are as follows: The plaintiff filed O.S. No. 31 of 1972 in the Sub Court, Kottarakkara against one Indira Devi and her husband Bhanu Nair for realisation of Rs. 12,902.42 being the instalment of kuri defaulted by the defendant. The defendant in the suit was engaged by the plaintiff for conducting the case. The suit was decreed on 17-2-1973. A preliminary decree was passed for the sale of the mortgagees properties and a final decree was passed on 17-11-1973 for the sale of the decree schedule property. The plaintiff filed E.P. No. 52 on 1972 on 14-3-1975. In execution of the decree, the decree holder/ plaintiff purchased the property in auction. The Judgment Debtors filed E.A. No. 167 of 1975 on 11-4-1975 seeking to set aside the same. The E.A was allowed on 16-2-1977. The plaintiff filed C.M.A. No. 129 of 1977 against the order in E.A. No. 167 of 1975. This court passed a conditional order in C.M.A. on 19-2-1979 directing the Judgment Debtors to deposit the sale amount with five percent commission and six per cent interest on or before 19-3-1979. It was further ordered that on compliance with the order the sale would stand set aside and on failure to comply with the order the sale would stand confirmed. Judgment Debtors did not deposit the amount within the specified period. The plaintiff requested the defendant to apply for delivery of the property. It is the plaintiff s case that the defendant did not take steps to take delivery, in spite of repeated reminders made by the plaintiff. He also did not respond to the communications addressed to him by the plaintiff-Bank. The plaintiff again requested the defendant to take necessary steps on 18-6-1979. The defendant on 27-7-1989 informed the plaintiff that he had applied for sale certificate and the same would be forwarded along with the application for delivery. The plaintiff did not send application for delivery for the signature of the plaintiff. In the circumstances, the plaintiff asked its Punalur Bank Manager to contact the defendant and ascertain the real position. The Bank Manager approached the defendant several times and the former was informed that application for sale certificate was pending. The plaintiff did not send application for delivery for the signature of the plaintiff. In the circumstances, the plaintiff asked its Punalur Bank Manager to contact the defendant and ascertain the real position. The Bank Manager approached the defendant several times and the former was informed that application for sale certificate was pending. No application was pending and really no such application was filed as represented by the defendant. The plaintiff verified the court records and found that execution petition was dismissed on 2-4-1977. The plaintiff also understood that the defendant did not file any application for getting the sale certificate. In view of the negligence on the part of the defendant, the plaintiff was forced to give up the engagement given to the counsel on 27-6-1980. Later, plaintiff filed application for delivery of the property through another counsel. That application was dismissed on 28-3-1981. According to the plaintiff, it was because of the failure of the defendant for taking necessary steps the plaintiff sustained loss and application for delivery was dismissed. On these allegations, the plaintiff claimed damages. 3. The defendant denied the plaint allegations and contended that even if the allegations are true the suit is barred by limitation. He also contended that there was negligence on the part of the plaintiff and the application was dismissed because of the negligence of the plaintiff. 4. The court below on a consideration of the evidence, came to the conclusion that the suit is barred by limitation. It also found that there was contributory negligence on the part of the plaintiff and for that reason also the suit is liable to be dismissed. 5. In this appeal, learned counsel for the appellant has challenged the finding of the court below and raised two points: (1) The finding that the suit is barred by limitation is erroneous. (2) There was no contributory negligence on the part of the plaintiff and even if there was, the suit is not liable to be dismissed in toto. 6. I shall examine first contention regarding limitation. It is Article 113 that is applicable. Learned counsel for appellant submitted that the said Article has to be read along with S.23 and that so read the starting period of limitation is the date on which the injury resulted. 6. I shall examine first contention regarding limitation. It is Article 113 that is applicable. Learned counsel for appellant submitted that the said Article has to be read along with S.23 and that so read the starting period of limitation is the date on which the injury resulted. S.23 of the Limitation Act reads as follows: "In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury results there from the period of limitation shall be computed from the time when the injury results". According to learned counsel for appellant that the injury resulted in this case only when his application E.A. No. 9 of 1981 was dismissed on 28-3-1981. Learned counsel pointed out that the suit was filed on 5-7-1983 within three years from the date of the order in E.A. Learned counsel also submitted that in all cases compensation is claimed for a liability the knowledge about the injury is the starting point of limitation. In support of his contention that the cause of action arises only on the date on which injury results, learned counsel relied on observations at pages 266 & 267 of the Discipline of Law by Lord Denning which read as follows: "In recent years the law of negligence has been transformed out of all recognition. This is the first case in which we have had to consider the effect of this transformation on the Statute of Limitations. One thing is quite clear. A cause of action for negligence accrues not at the date of the negligent act or omission but at the date when the damage is sustained by the plaintiff. 7. Learned counsel also invited my attention to the decision in Dove v, Banhams Patent Locks Ltd. (1983 (2) All E.R.833). In that case, the defendants, who were burglary prevention specialists, were instructed by the then owners to carry out security work on a property which the plaintiff purchased. The work included the fitting of a security gate to a basement door. The top of the gate was not affixed directly to the door frame but instead was screwed into a wooden batten which was in turn nailed to the frame. That made the gate less secured. Some years thereafter, the burglar gained entry to the house by the basement door after forcing the top of the gate. The top of the gate was not affixed directly to the door frame but instead was screwed into a wooden batten which was in turn nailed to the frame. That made the gate less secured. Some years thereafter, the burglar gained entry to the house by the basement door after forcing the top of the gate. The plaintiff brought an action for damages in negligence against the defendant for the value of the property stolen. Defendants denied that they had been negligent and contended that, in any event, the cause of action arose when the work was carried out and that therefore the proceedings were barred by limitation. The court on consideration of these facts, held the defendants had been in breach of the duty of care owed to the plaintiff when they carried out the installation of the security gate and the action was not time-barred since the cause of action arose not at the time the faulty work was completed but when the fault had manifested itself, that is to say when the gate gave way after the burglar applied force to it. Learned counsel also invited may attention to Page 623 of Halsbury's Laws of England 4th Edn.Vol 28 which read as follows: "Where damage is the cause of action or part of the cause of action, the period of limitation runs from the date of the damage and not of the act which causes the damage". To find out when exactly the injury resulted in the instant case, one has to look at Article 134 of the Limitation Act. It lays down that the delivery of possession by a purchaser of immovable property at a sale in execution of the decree, the period of limitation is one year. The sale became absolute on 19-3-1979. In view of the direction contained in the judgment in C.M.A. No. 129 of 1977, on the file of this court, in default of payment of the amount as ordered to be deposited, the sale stood confirmed. So the plaintiff ought to have filed application for delivery within a period of one year from 19-3-1979. If no application was filed within that period, the right to file application for delivery is barred by operation of Article 134 of the Limitation Act. The injury resulted on the failure of the advocate to file application for delivery before the expiry of one year. If no application was filed within that period, the right to file application for delivery is barred by operation of Article 134 of the Limitation Act. The injury resulted on the failure of the advocate to file application for delivery before the expiry of one year. He had one year's time to file application and the injury results if the counsel did not file the application within that period. 8. The contention of the learned counsel for appellant is that the injury was sustained by the plaintiff only when his application for delivery was dismissed by the court. If the argument of counsel for the appellant is accepted, the appellant can wait for any length of time, and file an application and on getting it dismissed on the ground that it is time-barred, file a suit within three years from the date of dismissal and contend that the injury resulted only on the dismissal of application. In my view the injury in the instant case, resulted when the right of the applicant to file an application became barred and not on the date his time-barred application for delivery was dismissed. The passages from Halsbury's Law of England and Discipline of Law by Lord Denning quoted above and the observations contained in Dove's case (Supra) are not helpful to the appellant. 9. Learned counsel for the respondent invited my attention to the evidence of PW 1 that the plaintiff came to know that he did not file the application for delivery in June, 1980 and the suit was filed only on 5-7-1983. In view of S.23 of the Limitation Act, it is difficult to accept the contention of the learned counsel that the period of limitation starts in the instant case, only on the knowledge about the omission to file application for delivery. Even if it is assumed knowledge is the starting point, suit is barred by limitation as it is filed beyond the date on which plaintiff discovered that the application was filed. 10. The Full Bench of this court, in which I am also a party in Damodaran v. Chellamma (1987 (1) K.L.T.1 (F.B.) held that the starting point of limitation under S.126(2) of the Crl. P.C. is the date of order and not the date of knowledge ofthe order. S.23 specifically says that it is the resulting of injury that is the starting point. P.C. is the date of order and not the date of knowledge ofthe order. S.23 specifically says that it is the resulting of injury that is the starting point. The injury was caused when the right to apply for delivery is barred but not on the date on which came to his knowledge that no such application for delivery was filed. 11. Learned counsel submitted that the court below found that there is negligence on the part ofthe defendant but dismissed the suit on the ground that there was contributory negligence on the part of the plaintiff. Learned counsel submitted that there was no negligence on the part of the plaintiff-Bank and the plaintiff-Bank had addressed the defendant on the point several times and that the injury was sustained solely because of the negligence on the part of the defendant. In view of my finding that the suit is barred by limitation, it is not necessary for me to consider this question in this appeal. The cross objection filed by the defendant contending that there was no negligence on his part was also dismissed for the same reason. Appeal fails and it is dismissed. However, this will not in anyway affect the right of the appellant if any to take appropriate steps for gelling delivery of the property. The parties will bear their respective costs.