MIS. DISHA CONSTRUCTIONS AND ORS. versus STATE OF GOA AND ANR.

Citation: [2011] 13 S.C.R. 496 · Decided: 09-12-2011 · Supreme Court of India · Bench: A.K. GANGULY · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
[2011] 13 (ADDL.) S.C.R. 496 
MIS. DISHA CONSTRUCTIONS AND ORS. 
v. 
STATE OF GOA AND ANR. 
(Civil Appeal No. 10763 of 2011) 
DECEMBER 9, 2011 
[ASOK KUMAR GANGULY AND JAGDISH SINGH 
KHEHAR, JJ.] 
Limitation Act, 1963: s. 15(2) - Period of limitation under 
C - Computation of - Notice uls. 80, CPC given before expiry 
of limitation - Held: Jn computing the period of limitation, the 
period of notice would be mandatorily excluded since the 
notice was given within the limitation period - Code of Civil 
Procedure, 1908 - s. 80. 
D 
The appellants-plaintiffs entered into an agreement 
with respondent no.1 for construction of a school. On 
competition of work on 30th September, 2006, defendant 
no.2 issued a certificate of completion dated 3rd October, 
E 2006. According to the appellant, the entire payment due 
to the appellant was alleged to have not been made and 
the balance amount remained unpaid from 30th 
September, 2006. A recovery suit was filed on 24th 
October, 2009. The trial court dismissed the suit holding 
that the plaint could not be registered as it was barred 
F by limitation as also in view of the fact that there was no 
compliance with Section 80, CPC. On appeal, the High 
Court held that the suit was barred by limitation but held 
that notice was duly served on respondent no.1 on 27th 
February, 2009 and two months from date of receipt 
G expired on 27th April, 2009. It held that the period of 
limitation expired on 30th September, 2009, and, therefore, 
the suit which was filed on 24th October, 2009 was barred 
by limitation. The instant appeal was filed challenging the 
order of the High Court. 
H 
496 
DISHA CONSTRUCTIONS AND ORS. v. STATE OF 
497 
GOA AND ANR. 
Allowing the appeal, the Court 
HELD: 1.1. In the facts and circumstances of this 
case, the notice under Section 80 was admittedly given 
A 
on 19th February, 2009 which was within the period of 
limitation and the same was received on 27th February, 
B 
2009 and two months from the date of receipt expired on 
27th April, 2009. The High Court has held, erroneously, 
that since the suit was filed on 24th October, 2009, which 
was beyond 30th September, 2009, the plaintiffs/ 
appellants were not entitled to the benefit of exclusion 
C 
statutorily provided under Section 15(2) of the Limitation 
Act, 1963 and the suit is barred by limitation. The said 
interpretation of the High Court was erroneous in view 
of the fact that if the notice under Section 80 had been 
given, say, on 29th September, 2009, in that case the 
appellants according to High Court's interpretation, 
D 
would have been given the benefit of exclusion of time 
after 30th September, 2009. Just because the appellants 
gave the notice before the expiry of the period of 
limitation, the benefit which is given under Section 15(2) 
of the Act cannot be taken away. The said period of two 
E 
months must be computed and benefit of exclusion of the 
said two months must be given to the appellants even if 
they had given the said notice within the period of 
limitation. If the appellants had given the notice after the 
expiry of period of limitation, say, after 30th September, 
F 
2009, then possibly they could not have been given the 
benefit. [Paras 12-14] [502-D-H; 503-A] 
Union of India & Ors. v. West Coast Paper Mills Ltd. & 
Anr. (2004)3 SCC 458: 2004 (2) SCR 642 - relied on. 
1.2. Under Section 2(j) of the Act, the "period of 
limitation" mectns. the period prescribed for any suit, or 
other proceeding by the Schedule and the "prescribed 
period" means the period of limitation computed in 
accordance with the provisions of the Act. Following the 
G 
H 
498 
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R. 
A said principles, the erroneous interpretation which has 
been given by the High Court will have the effect of 
denying the appellants the benefit of Section 15(2) which 
is not permissible in the eye of law. Proper interpretation 
of Section 15(2) of the Act would be that in computing the 
B period of limitation, the period of notice, provided notice 
is given within the limitation period, would be mandatorily 
excluded. That would mean a suit, for which period of 
limitation is three years, would be within limitation even 
if it is filed within two months after three years, provided 
c notice has been given within the limitation period. In such 
a case, the period of notice cannot be counted 
concurrently with the period of limitation. If it is done, then 
period of 

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