SYNDICATE BANK Vs. PRABHA D NAIK

JUDGEMENT

(1.) The applicability of the provisions of Indian Limitation Act vis-a-vis the interpretation of Article 535 of the Portuguese Civil Code, said to be the governing law of Limitation in the State of Goa, Daman and Diu, is the focal point for consideration in this appeal. Needless to record that Section 29(2) of the Limitation Act, 1963 contains the provisions for savings of the Limitation Act which expressly provides that the provisions contained in Sections 4 to 24 (both inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by special or local law. In interpreting the said provision under Section 29(2) and the Portuguese Civil Code pertaining to the question of limitation as being a local law within the meaning of Section 29 (2) this Court in the case of Justiniano Augusto De Piedade Barreto vs. Antonio Vicente Da Fonseca, AIR 1979 SC 984 came to a conclusion that the body of the provisions in the Portuguese Civil Code dealing with the subject of limtiation of suits etc. and in force in the Union Territory of Goa Daman and Diu only, is the local law within the meaning of Section 29(2) of the Limitation Act, 1963. This Court further held that these provisions of the Portuguese Civil Code have to be read in the Limitation Act 1963 as if the schedule to the Limitation Act stands amended mutatis mutandis and question of any repugnancy does not and cannot arise. The earlier decision Justiniano (supra) obviously was on an inspiration from the provisions of Section 3 of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration), Act, 1965 by which both the Code of Civil Procedure, 1908 and the Arbitration Act, 1940 were extended to the Union Territory of Goa, Daman and Diu and it is on this perspective this Court in paragraph 10 of the Report observed:

(2.) Turning on to the factual matrix at this juncture however, be it noted that Syndicate Bank is in Appel against the order of Panji Bench of the High Court of Judicature at Bombay in First Appeal No. 73/1985 wherein the High Court came to a definite conclusion that in the event the cause of action, as has been in the matter under consideration, has arisen outside the Portuguese law, then part of the aforesaid law dealing with a period of limitation will not apply and the same would be governed by the Indian Limitation Act and since the cause of action under consideration arose outside the Portuguese Law no exception can be taken to the judgment and decree of the Civil Judge, Senior Division, Panaji as regards the rejection of plaint being barred by limitation.

(3.) Incidentally , the only ground of challenge in the Appeal before the High Court also pertained to the issue of limitation. Both the learned Civil Judge and the High Court however, relied on a decision of the Bombay High Court in the case of M/s. Cadar Constructions vs. M/s. Tara Tiles, AIR 1984 Bom 258 wherein the High Court after consideration of the decision of this Court in Justiniano's case (supra) summarised the situation in paragraph 25 of the report as below: