Case: Ongc Ltd Vs. M/S. Modern Construction And Co

A. A contract for re-construction of cement godown, site office and warehouse for LPG Plant at Kawas in Surat District was awarded by the appellant to the respondent to be completed on or before 8.8.1984 vide agreement dated 9.2.1984. The respondent completed the work with an inordinate delay and possession could be taken by the appellant only on 31.6.1985. The respondent filed Civil Suit Nos.60, 61 and 62 of 1986 against the appellant in the Civil Court at Mehsana to recover the outstanding dues from the appellantB. The Civil Court vide judgment and decree dated 31.1.1994 allowed Civil Suit Nos.61 and 62 of 1986 in favour of the respondentC. Aggrieved, the appellant filed First Appeal Nos.1451, 1452 and 1453 of 1994 before the High Court of Gujarat challenging the said judgment and decree dated 31.1.1994. The High Court vide common judgment and order dated 18.3.1997 held that the Civil Court at Mehsana did not have territorial jurisdiction to entertain the suits. Therefore, the said judgment and decrees passed in the civil suits were set aside and the Civil Court at Mehsana was directed to return the plaints to the respondent so that the same may be presented before the appropriate court having jurisdictionD. The plaints were returned to the respondent in the aforesaid civil suits, who instituted the same before the Civil Court at Surat on 3.2.1999 being Civil Suit Nos.56, 57 and 58 of 1999The said suits were allowed by the 3rd Additional Senior Civil Judge vide judgment and decree dated 21.9.2006 holding that the respondent was entitled to receive an amount of Rs.1,29,138/-, Rs.1,69,757/- and Rs.58,616/- in the respective suits with a future interest @ 12% per annum from the date of filing of the suit till realisationE. The appellant complied with the decrees passed by the 3rd Addl. Senior Civil Judge and made the payment of decretal amount to the respondent calculating the interest on the principal sum from 3.2.1999, i.e. the date on which the respondent had presented the plaints in the court of competent jurisdiction at SuratF. The respondent after receiving the said amount filed Special Execution Petition Nos. 17 and 18 of 2007 on 5.3.2007 claiming interest for the period 1986 to 1999, i.e. during the period when the suit remained pending before the court at Mehsana which had no jurisdiction. The Executing Court vide order dated 28.9.2007 dismissed the Execution petition observing that respondent was entitled to interest from the date of filing of the suit at Surat and not from the date on which the plaint was presented at MehsanaG. Aggrieved, the respondent preferred Misc. Civil Appeal Nos.29, 30 and 35 of 2008 before the District Court at Surat and the same were dismissed vide order dated 12.3.2010H. Aggrieved, the respondent challenged the said order dated 12.3.2010 by filing Special Civil Application Nos.5036 and 5037 of 2010 before the High Court of Gujarat at Ahmedabad and the said applications have been allowed vide order dated 10.12.2010 holding that the respondent was entitled to interest from the date of institution of the suit at Mehsana Court. Hence these appeals.

Reasoning: Section 14 of the Limitation Act provides protection against the bar of limitation to a person bonafidely presenting his case on merit but fails as the court lacks inherent jurisdiction to try the suit. The protection also applies where the plaintiff brings his suit in the right court, but is nevertheless prevented from getting a trial on merits because of subsequent developments on which a court may loose jurisdiction because of the amendment of the plaint or an amendment in law or in a case where the defect may be analogous to the defect of jurisdiction13. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order VII Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the sameIn the instant case, a copy of the decree has not been filed by either of the parties. The judgment and order dated 21.9.2006 shows that the plaints were received and registered on 24.3.1986. The respondent cannot be permitted to take advantage of a mistake made by the court and raise a technical objection to defeat the cause of substantial justice. The legal maxim, Actus Curiae Neminem Gravabit i.e. an act of Court shall prejudice no man, comes into playWe are of the considered view that once the plaint was presented before the Civil Court at Surat, it was a fresh suit and cannot be considered to be continuation of the suit instituted at Mehsana. The plaintiff/respondent cannot be permitted to take advantage of its own mistake instituting the suit before a wrong court. The judgment and order impugned cannot be sustained in the eyes of law