“Whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose?” (There is a variance between the view expressed by this Court on the above question in Saketh and in SIL Import, USA v. Exim Aides Silk Exporters, Bangalore[2].) Having considered the question of law involved in this case in proper perspective, in light of relevant judgments, we are of the opinion that Saketh lays down the correct proposition of law. We hold that for the purpose of calculating the period of one month, which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose. We hold that SIL Import USA does not lay down the correct law. Needless to say that any decision of this Court which takes a view contrary to the view taken in Saketh by this Court, which is confirmed by us, do not lay down the correct law on the question involved in this reference. The reference is answered accordingly.-2015 S.C.(2013) MSKLAWREPORTS




As the Limitation Act is held  to  be  not  applicable  to  N.I.  Act,
drawing parallel from Tarun Prasad Chatterjee  where the Limitation Act  was
held not applicable, we are of the opinion that with the aid  of  Section  9
of the General Clauses Act, 1897 it can be safely concluded  in the  present
case that while calculating the period of  one  month  which  is  prescribed
under Section 142(b) of the N.I. Act, the  period  has  to  be  reckoned  by
excluding the date on which the cause of action arose.
it is not possible to hold that  the  word  ‘of’
occurring in Section 138(c) and 142(b) of the N.I. Act is to be  interpreted
differently as against the word ‘from’ occurring in Section  138(a)  of  the
N.I. Act; and that for the purposes  of  Section  142(b),  which  prescribes
that the complaint is to be filed within 30 days of the date  on  which  the
cause of action arises, the starting  day  on  which  the  cause  of  action
arises should be included for computing the period of 30 days.  As  held  in
Ex parte Fallon[27] the words ‘of’, ‘from’  and  ‘after’  may,  in  a  given
case,  mean  really  the  same  thing.   As  stated  in  Stroud’s   Judicial
Dictionary, Vol. 3 1953 Edition,  Note  (5),  the  word  ‘of’  is  sometimes
equivalent of ‘after’.
We have noted  that  in  this
case reliance is not merely placed on Section 12(1) of the  Limitation  Act.
Reliance is also placed on Section 9 of the General Clauses  Act.   However,
since, in the instant case we have reached a  conclusion  on  the  basis  of
Section 9 of the General Clauses Act, 1897 and on the basis of a  long  line
of English decisions that where a particular time is given, from  a  certain
date, within which an act is to be done, the  day  of  the  date  is  to  be
excluded,
we  are  of  the  opinion  that
Saketh lays down the correct proposition of  law.   We  hold  that  for  the
purpose of calculating the period of one month, which  is  prescribed  under
Section 142(b) of the N.I. Act, the period has to be reckoned  by  excluding
the date on which the cause of action arose.  We hold that  SIL  Import  USA
does not lay down the correct law.  Needless to say  that  any  decision  of
this Court which takes a view contrary to the view taken in Saketh  by  this
Court, which is confirmed by us, do not lay down  the  correct  law  on  the
question  involved  in  this   reference.    The   reference   is   answered
accordingly. -2015 S.C.(2013) MSKLAWREPORTS


Popular posts from this blog

Court fee - Sec.34 of A.P.C.F & S.V.Act - partition of Plaints-A and B-Schedule properties, in the manner pleaded by her, and for grant of future profits. Plaint-A Schedule comprised of, four items of immovable properties, and Plaint-B Schedule comprised of, nine items of jewellery. Pleading that the parties are in joint possession of the said properties, the petitioner paid Court-fee of Rs. 200/- under Sub-section (2) of Section 34 of the A.P. Court Fees and Suits Valuation Act, 1956 (for short 'the Act'). The trial Court returned the plaint, through its order dated 23-6-2006, directing the petitioner herein, to pay Court fee on movable properties, on her shares, as per the Act, within the time stipulated by it.= In the instant case, the petitioner asserted that, herself and the respondents are in joint possession of the Plaints-A and B-Schedule properties. In a way, the trial Court was satisfied, that the immovable properties mentioned in Plaint-A schedule are in joint possession, and in that view of the matter, it did not insist on payment of ad-valorem Court-fee, on such items. It, however, took a different view, as regards the movable properties. Neither from the plaint, nor from the endorsement made by the trial Court, it is found that there is any distinction, as to the nature of rights claimed, in respect of Plaint-A Schedule properties, on the one hand, and Plaint-B schedule properties, on the other hand. In fact, the nature and incidence of possession, of an immovable property, gives rise to, relatively greater consequences of law, than the possession of an item of movable property. The possession of an item of immovable property can be said to be more assertive, firm and lasting, than the one, of movable property. The endorsement made by the trial Court cannot be sustained, either on law, or on facts. 2015 A.P.(2006)MSKLAWREPORTS

partition of Plaints-A and B-Schedule properties, in the manner pleaded by her, and for grant of future profits. Plaint-A Schedule comprised of, four items of immovable properties, and Plaint-B Schedule comprised of, nine items of jewellery. Pleading that the parties are in joint possession of the said properties, the petitioner paid Court-fee of Rs. 200/- under Sub-section (2) of Section 34 of the A.P. Court Fees and Suits Valuation Act, 1956 (for short 'the Act'). The trial Court returned the plaint, through its order dated 23-6-2006, directing the petitioner herein, to pay Court fee on movable properties, on her shares, as per the Act, within the time stipulated by it.= In the instant case, the petitioner asserted that, herself and the respondents are in joint possession of the Plaints-A and B-Schedule properties. In a way, the trial Court was satisfied, that the immovable properties mentioned in Plaint-A schedule are in joint possession, and in that view of the matter, it
Read more

Sec.482 Cr.P.C. - Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 - Part B question Paper was missed ( said to be distributed to A1 along with other students by A2 an invigilator ) - Charge - she was negligent in performing the invigilation duties. - Their Lordships held that Mere negligence in performing invigilation duties, does not attract the offence set-forth in the Act. Therefore, in absence of any allegation that the petitioner herein has committed the offence set out in Section 5 of the Act, she cannot be subjected to prosecution for which the penalty has been provided under Section 8 of the Act.- Quashed the criminal proceedings - 2015 Telganga & A.P. msklawreports

Law  :- Sec.482 of Cr.P.C. Sub  :- Quash the criminal proceedings Offence  :-Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 Summary : -  The investigation revealed that clandestinely question paper Part-B has been removed from the exam hall and it was passed on to Accused No.1 for eventually facilitating in malpractice. However, the police after investigation, filed the charge-sheet.   The petitioner (A-2) along with A-1 is sought to be proceeded against under Section 8 of the Andhra Pradesh Public Examination (Prevention of Malpractice and Unfair Means) Act, 1997 (Act for short).     Section 5 of the Act reads as under: Prevention of leakage by person entrusted with examination works: No person who is entrusted with any work pertaining to a public examination shall, except where he is permitted by virtue of his duties so to do, directly or indirectly divulge or cause to be divulged or make known to any o
Read more

Order 38 Rule 5, only the properties of the defendant can be attached and not the properties in the hands of garnishee has no statutory support nor the support of any precedent.-2015 A.P.(2004) MSKLAWREPORTS

Order 38 Rule 5, only the properties of the defendant can be attached and not the properties in the hands of garnishee has no statutory support nor the support of any precedent. "Order 38, Rule 7 C.P.C. provides that the attachment under Order 38, Rule 5 shall be made in the manner provided for the attachment of property in execution of a decree. It is trite, the attachment envisaged under Order 38, Rule 5 CPC is an attachment before judgment. The restriction found by the learned Single Judge that under Order 38 Rule 5, only the properties of the defendant can be attached and not the properties in the hands of garnishee has no statutory support nor the support of any precedent. The attachment of debts due to the defendant from third party could be attached before judgment under Order 38 Rule 5 CPC.-2015 A.P.(2004) MSKLAWREPORTS
Read more