Case Brief: M/s Disha Constructions & Ors. v State of Goa & Anr.

FACTS:
A suit was filed by the appellants praying for payment of money which according to the appellants was due to them   for undertaking the construction work on behalf of the defendants. The suit was dismissed by a judgment and order by the District Judge, North Goa, Panaji, inter alia, holding that the plaint cannot be registered as it was barred by limitation as also in view of the fact that there was no compliance with Section 80 of the Civil Procedure Code insofar as notice on defendant No. 2 is concerned.
On an appeal before the High Court, the High Court held that the suit is barred by limitation but on the question of notice, the High Court came to a different finding and came to the conclusion that notice was served.
ISSUE FOR CONSIDERATION:
Whether the suit has been filed within the period of limitation and whether notice under Section 80, CPC was given to defendant No. 2?
HELD:
The Hon’ble Court stated that, in the light of the facts and circumstances of present case, the notice under Section 80 was admittedly given within the period of limitation and the same was received on 27th February, 2009 and two months from the date of receipt expired on 27th April, 2009. Further, according to the Court, the High Court has erroneously held that since the suit was filed on 24th October, 2009, which is beyond 30th September, 2009 (limitation period expired), the appellants are not entitled to the benefit of exclusion statutorily provided under Section 15(2) of the Act and the suit is barred by limitation.
It was further observed by the Court that under Section 2(j) of the Act, the “period of limitation” means 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. In view of the Court, proper interpretation of Section 15(2) of the Act would be that in computing the 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 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 notice is not excluded. Any other interpretation would be contrary to the express mandate of Section 15(2) of the Act.
The Court, therefore, set aside the order of the High Court and held that the suit is within the period of limitation.   Since, on the question of notice, the finding of the trial Court has been overruled by the High Court and the High Court has held that the notice has been served on defendant No. 1 and against such finding there is no cross objection, the Court was of the view that the notice in this case has been served. Therefore, it directed that the suit   may be heard out now on merits by the trial Court.