What is exclusion of time and extension of time under The indian Limitation Act?

 The Indian Limitation Act, 1963 provides two distinct mechanisms to address timing issues in legal proceedings: exclusion of time and extension of time. These provisions ensure fairness and prevent technical delays from defeating genuine legal claims.

Exclusion of Time (Sections 12-15)

Exclusion of time refers to specific periods that are not counted when calculating the limitation period for filing suits, appeals, or applications. This operates automatically and does not require court discretion.

Print Page

Whether the government can claim liquidated damages from other party while extending time for completion of project contrary to terms of contract?

5.2 In the communication granting extension of time with levy

of penalty, penalty is levied by the State Government

invoking Clause 3.5.5(v) of the OPWD Code. However, it is

required to be noted that Clause 3.5.5(v) of the OPWD

Code shall be applicable in a case where the contract is

terminated. It permits the appropriate authority/State to

terminate the contract with penalty when the progress of

work is not as per the conditions of contract. Here, it is not

a case of termination of the contract. Therefore, Clause

3.5.5(v) of the OPWD Code which has been invoked in the

communication granting extension of time but with levy of

penalty shall not be applicable at all.

5.3 So far as the reliance placed upon Clause 3.5.30 of the

OPWD Code by learned counsel appearing on behalf of the

State is concerned, even under the said clause, there is no

provision for imposition of penalty while granting extension

of time. Clause 3.5.30 only provides that while

communicating to the contractor of extension of time, he

must be informed that extension is granted without

prejudice to State Government’s right to levy compensation

under relevant clause of the contract. If the relevant clause

of the contract is seen and/or considered, there is no

condition stipulated in the contract that while granting the

extension of time, there may be levy of penalty. The

relevant clause with respect to the extension of time is

Clause-4, which has been reproduced hereinabove. Neither

the contract nor the OPWD code provides for imposition of

penalty while extending the contract. Therefore, levy of

penalty while granting extension of time is wholly without

authority of the law and is illegal. The same has been

rightly set aside by the High Court.

5.4 Even otherwise, it is required to be noted that before the

levy of penalty of a particular percentage, while granting

extension of time, no opportunity of being heard has been

given to the contractor as to why the penalty may not be

imposed while granting extension of time and at what rate.

In a given case, the State Government might be justified in

imposing the penalty while granting the extension.

However, the contractor must be put to notice that

extension of time can be granted on imposition of

reasonable penalty. However, without putting the

contractor to notice, unilaterally, the State is not justified

in levying the penalty while granting extension of time.

6. In view of the above and for the reasons stated above, the

High Court has rightly set aside the penalty levied while

granting extension of time. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4934 OF 2022

The State of Odisha & Ors. Vs Radheshyam Agrawal 

Author: M.R. SHAH, J.

Dated: MARCH 24, 2023.

Print Page

Supreme court: Failure To Produce Accused Before The Court While Considering Application For Extension Of Time For Investigation Amounts To Violation Of Fundamental Right

 Clause (b) of subsection (2) of Section 167 of CrPC lays down that no Magistrate shall authorise the detention of the accused in the custody of the police unless the accused is produced before him in person. It also provides that judicial custody can be extended on the production of the accused either in person or through the medium of electronic video linkage. Thus, the requirement of the law is that while extending the remand to judicial custody, the presence of the accused has to be procured either physically or virtually. This is the mandatory requirement of law. This requirement is sine qua non for the exercise of the power to extend the judicial custody remand. The reason is that the accused has a right to oppose the prayer for the extension of the remand. When the Special Court exercises the power of granting extension under the proviso to subsection (2) of Section 20 of the 2015 Act, it will necessarily lead to the extension of the judicial custody beyond the period of 90 days up to 180 days. Therefore, even in terms of the requirement of clause (b) of subsection (2) of Section 167 of CrPC, it is mandatory to procure the presence of the accused before the Special Court when a prayer of the prosecution for the extension of time to complete investigation is considered. In fact, the Constitution Bench of this Court in the first part of paragraph 53(2)(a) in its decision in the case of Sanjay Dutt2 holds so. The requirement of the report under proviso added by subsection (2) of Section 20 of the 2015 Act to clause (b) of subsection (2) of Section 167 of CrPC is twofold. Firstly, in the report of the Public Prosecutor, the progress of the investigation should be set out and secondly, the report must disclose specific reasons for continuing the detention of the accused beyond the said period of 90 days. Therefore, the extension of time is not an empty formality. The Public Prosecutor has to apply his mind before he submits a report/ an application for extension. The prosecution has to make out a case in terms of both the aforesaid requirements and the Court must apply its mind to the contents of the report before accepting the prayer for grant of extension.

{Para 28}

29. As noted earlier, the only modification made by the larger Bench in the case of Sanjay Dutt2 to the decision in the case of Hitendra Vishnu Thakur1 is about the mode of service of notice of the application for extension. In so many words, in paragraph 53(2)(a) of the Judgment, this Court in the case of Sanjay Dutt2 held that it is mandatory to produce the accused at the time when the Court considers the application for extension and that the accused must be informed that the question of extension of the period of investigation is being considered. The accused may not be entitled to get a copy of the report as a matter of right as it may contain details of the investigation carried out. But, if we accept the submission of the respondents that the accused has no say in the matter, the requirement of giving notice by producing the accused will become an empty and meaningless formality. Moreover, it will be against the mandate of clause (b) of the proviso to subsection (2) of section 167 of CrPC. It cannot be accepted that the accused is not entitled to raise any objection to the application for extension. The scope of the objections may be limited. The accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating agency. Secondly, the accused can always point out the twin requirements of the report in terms of proviso added by subsection (2) of Section 20 of the 2015 Act to subsection (2) of Section 167 of CrPC. The accused can always point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension cannot be granted.

30. The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the accused to claim a default bail. If we accept the argument that the failure of the prosecution to produce the accused before the Court and to inform him that the application of extension is being considered by the Court is a mere procedural irregularity, it will negate the proviso added by subsection (2) of Section 20 of the 2015 Act and that may amount to violation of rights conferred by Article 21 of the Constitution. The reason is the grant of the extension of time takes away the right of the accused to get default bail which is intrinsically connected with the fundamental rights guaranteed under Article 21 of the Constitution. The procedure contemplated by Article 21 of the Constitution which is required to be followed before the liberty of a person is taken away has to be a fair and reasonable procedure. In fact, procedural safeguards play an important role in protecting the liberty guaranteed by Article 21. The failure to procure the presence of the accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Article 21.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION 

Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat

Coram: AJAY RASTOGI; J., ABHAY S. OKA; J. 

Author: Abhay S. Oka, J.

Dated: September 23, 2022. 

Print Page

Whether the court must hear accused before allowing prosecution extension of time for filing of chargesheet?

In the case of Hitendra Vishnu Thakur (supra) and

followed in a series of the decisions, the Apex Court has held

that when a petition is filed by the Public Prosecutor seeking

extension of time to submit charge-sheet, its notice should be

issued to the accused before granting such extension so that he

may have an opportunity to oppose it on all legitimate and legal

grounds available to him. Be it noted here that the said decision

pertains to Section 20(4) of TADA Act which is in pari materia

to the provision under Section 36-A(4) of the NDPS Act. This

Court in the case of Lambodar Bag v. State of Odisha,

reported in 2018 (71) OCR 31 has also held that it is mandatory

to grant an opportunity of hearing to the accused before

granting extension of time to complete investigation. Relying

upon the aforesaid case as also the case of Hitendra Vishnu

Thakur (supra) and several other cases decided by the apex

court and other High Courts, this Court has reiterated the said

principle in the case of Iswar Tiwari v. State of Odisha,

reported in 2020 (80) OCR 289. In summarizing the legal

position as regards the provisions under Section 167(2) of

Cr.P.C read with Section 36(A)(4) of the NDPS Act, this Court

in Iswar Tiwari (supra) held that the notice must mandatorily

be issued to the accused and he must be produced before the

Court whenever such an application is taken up and that where

any such report occurs the question of it being contested does

not arise and a right accrues in favour of the accused.

10. Examined in the background of the aforementioned

legal proposition it is evident that the order passed by learned

Special Judge on 27.01.2021 granting extension of the time to

complete investigation by thirty days without having the

accused persons produced before him and without granting

them an opportunity to have their say in the matter renders the

same illegal and unsustainable in the eye of law. {Para 9}

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No. 9135 of 2021

Biru Singh Vs State of Odisha 

CORAM:

JUSTICE SASHIKANTA MISHRA

Dated: 22.02.2022

Print Page

Whether a party is entitled to recover liquidated damages for breach of contract if waived it at the time of the first extension?

This brings us to the waiver. It may be noted that ONGC waived liquidated damages twice before giving extension with pre-estimated damages. The approach of the Arbitral Tribunal was to hold that once liquidated damages were waived in the first extension, subsequent extension could not be coupled with liquidated damages unless a clear intention flowed from the contract; while this Court recognizes the autonomy of the party to engage in contractual obligation. Such obligation must be contracted in clear terms. From the aforesaid discussion, it is clear that the promisee (ONGC) waived the liquidated damages initially and the same cannot be imposed, unless such imposition was clearly accepted by parties. In this case, the interpretation of the Arbitral Tribunal could not be faulted as being perverse, for the reasons stated above.

 In the Supreme Court of India

(Before N.V. Ramana, C.J. and Surya Kant, J.)

Civil Appeal Nos. 2826-2827 of 2016

Welspun Specialty Solutions Limited (Formerly Known As Remi Metals Gujarat Ltd.) VsvOil and Natural Gas Corporation Ltd.

Decided on November 13, 2021

Citation: 2021 SCC OnLine SC 1053

Print Page

Whether a party can refuse to pay damages for delay caused in the performance of the contract due to its conduct taking the defence of contractual term?

 Clause 59 prima facie prohibits the claim for compensation by the Contractor on account of the delays and defaults or whatever reasons and that only reasonable extension of time is permissible. The learned Arbitrator considering this issue interpreted the same to mean the escalation of prices is not covered by Clause 59 and what is contemplated under Section 59 is only compensation for the delays committed and it never prohibited the Contractor from claiming the escalation charges. When once the term of the contract has been interpreted, which is always permissible for the Arbitrator under Clause 73, which is widely worded, the interpretation placed by the Arbitrator has to be accepted. Therefore, when once the Arbitrator is clothed with the jurisdiction by virtue of Clause 73, temporary injunction is always open for him to interpret and construe the terms of the contract. The Department having failed to handover the site properly in accordance with the terms and conditions of the contract and having disabled the Contractor from executing the work as per the schedule on account of the various obstacles created including the non-initiation of the Land Acquisition proceedings, can it be said that still Clause 59 can be successfully invoked by the Department. It is well settled law that a person, who breaches the contract or who violates the contract is liable for damages or consequences and this clause cannot be interpreted to mean that whatever the defaults or breaches committed by the Department, the Department becomes immune from consequences. Such stipulation in the contract is highly arbitrary and unreasonable and the Division Bench of this Court has already held such a stipulation, even though it was agreed by the parties, but at the same time, when it is patently one sided and suppressed the Contractor, it cannot be said to be valid contract. Such a contract can be said to be opposed to the public policy. Obviously, it goes to establish that the Department cannot interfere with the integrity of the contract. While at the same time the Contractor cannot be allowed to interfere with the integrity of the contract, the primary intendment of the Clause 59 is not to allow the Contractor to go for compensation. On the other hand, the Department is entitled to grant reasonable extension which implies that reasonable extension of time without disturbing the work schedule is permissible, but when unreasonable extension is granted, it cannot be said that the Clause 59 also covers the situation. In case of a contract, which is liable to be executed within 12 months, a reasonable extension of one or two months can be granted by the authorities in which event, the Contractor will not be liable to claim compensation. But, if the extension is granted for a wholly unreasonable period and left asking the Contractor not to claim compensation is not contemplated under Section 59. The reasonable extension of time is sine qua non for invoking Clause 59, if the extension is unreasonable, Clause 59 will come into play. Admittedly, in the instant case, it was completed in 1985 and the work which was scheduled to be completed within 15 months has taken 5 years and which was accepted and the learned Arbitrator found that the delays were completely attributable to the Department. Therefore, even though extension was granted, since the extension is not a reasonable extension and in the guise of extending the time, the Contractor cannot be allowed to suffer the loss of escalation of the prices and connected liabilities. {Para 93}

Andhra High Court

T.A. Choudhary vs State Of A.P. And Ors. on 1 May, 2003

Print Page

Whether the court can extend the time granted to a party in the consent decree to perform an act?

 Learned counsel for the judgment debtors has heavily relied on the decision of the Supreme Court in Periyakkal (supra) wherein based on the compromise between the parties, the appellants therein agreed to pay a certain sum to the respondent therein within a stipulated time in full and final settlement of the decree, time being the essence of the agreement. Though the High Court dismissed the application holding that the Court could not extend the time where time had been stipulated by the parties themselves in the compromise, Supreme Court held that where the contract between the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would not stand curtailed. It was also clarified that time should not be extended ordinarily and on mere asking but in rare cases to prevent manifest injustice. Therefore, the Supreme Court in Periyakkal clearly held that the Court may in its discretion, in the interest of justice extend the time of payment however, the same should not be extended ordinarily on the mere asking but in rare cases to prevent manifest injustice.

 IN THE HIGH COURT OF DELHI

EX.P. 71/2019, E.A. (OS) 394/2019 

Decided On: 23.09.2020

Neena Khatry Vs. Varun Moudgil and Ors.

Hon'ble Judges/Coram:

Mukta Gupta, J.

Citation: MANU/DE/1763/2020

Print Page

When should court release accused on default bail in case under NDPS Act?

In the event the investigation is not completed within 180 days, the Court is empowered under Section 167 (2) of the Code of Criminal Procedure, 1973 read with Section 36-A (4) of the NDPS Act to authorize detention for a period up to one year, the law as it stands mandates that the same shall be subject to the following, being complied in letter and spirit. The legal position can be thus summarized as follows: -

i) Report of the Public Prosecutor indicating the progress of investigation must accompany the application for extension of time;

ii) Specific and compelling reasons for seeking detention of the accused beyond 180 days must be mentioned; a merely formal application will not pass muster;

iii) A notice must mandatorily be issued to the accused and he must be produced in court whenever such an application is taken up,

iv) An application seeking extension of time in filing of chargesheet by the prosecution ought not to be kept pending and must be decided as expeditiously as possible and certainly before expiry of the statutory period.

v) In cases where any such default occurs, the question of it being contested doesn't arise and a right accrues in favour of the accused.

vi) The restrictions under Section 37 will have no application in such cases. It will have application only in the case of an application being decided on merits.

vii) Violation of any of the aforesaid would be construed as a "default" and the accused become entitled to admitted to bail by such a default.

viii) When an application under Section 167(2) Cr.P.C. r/w Section 36A(4) of the NDPS Act has been filed after expiry of the 180 days period and no decision thereupon, an indefeasible right to be released on bail accrued to the accused which cannot be defeated by keeping the said applications pending.

In case there is violation of any of the above, an indefeasible right to bail will be accrued to the accused. Applying the aforesaid parameters as laid down hereinabove, it is quite evident that there have been such "defaults" in the instant case, especially non-service of notice on the accused which is violative of the most cardinal principle of natural justice i.e. Audi Alteram Partem which creates an indefeasible entitlement to bail to the Petitioner.

IN THE HIGH COURT OF ORISSA AT CUTTACK

BLAPL No. 10152 of 2019

Decided On: 20.08.2020

 Iswar Tiwari   Vs.  State of Odisha

Hon'ble Judges/Coram:

S.K. Panigrahi, J.

Citation: MANU/OR/0171/2020

Print Page

How to ascertain limitation in suit for specific performance of contract if time for execution of sale deed is fixed in agreement of sale?

In the light of the aforesaid agreement, the question to be considered is whether the First Part of Article 54 of the Act of 1963 would be attracted or whether the limitation would be governed by the Second Part of Article 54. As per the First Part of said Article, the time from which the period of limitation would begin to run is from the date fixed for the performance. As per the Second Part where no such date is fixed, it would begin to run when the plaintiff has notice that the performance is refused. In this regard, it would be necessary to first refer to the legal position in the matter of applicability of Article 54 of the Act of 1963. In Pancharan Dhara & Others Versus Monmatha Nath Maity (D) by L.R's & Another [MANU/SC/2787/2006 : AIR 2006 SC 2281], it has been observed in paragraph 19 as under:-

"19. ..... It is not in dispute that the suit for specific performance of contract would be governed by Article 54 of the Limitation Act, 1964. While determining the applicability of the first or the second part of the said provision, the court will firstly see as to whether any time was fixed for performance of the agreement of sale and if it was so fixed, whether the suit was filed beyond the prescribed period unless any case of extension of time for performance was pleaded and established. When, however, no time is fixed for performance of contract, the court may determine the date on which the plaintiff had notice of refusal on the part of the defendant to perform the contract and in that event the suit is required to be filed within a period of three years therefrom."

As it has been found that as per the agreement, the sale-deed was to be executed on 01.07.1998 and even according to the plaintiff no. 1 there was no further written or oral agreement for extending the time to execute the sale-deed, any subsequent payments cannot have the effect of extending the time to complete the transaction. It would have been a different matter if the plaintiffs would have proved that the defendants had agreed to extend the time to complete the contract. That is however not the case proved.

19. Thus, from the aforesaid discussion, it becomes clear that both the Courts wrongly interpreted the agreement at Exhibit 98 while holding the suit filed on 25.09.2006 to be within limitation. In the face of clear stipulation in the agreement as regards the date fixed for execution of the sale-deed, the finding recorded by both the Courts that the limitation was governed by the Second Part of Article 54 of the Act of 1963 is perverse. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal Nos. 457 and 458/2015

Decided On: 03.09.2018

Arvind  Vs.  Baba Jasbirsing Kalsi and Ors.

Print Page

Whether accused is entitled to get default bail if investigating officer has sought extension of time for investigation?

There is merit in the contention of the learned senior counsel for
the appellant/State that the question is more of substance than form, an
aspect even emphasised in Hitendra Vishnu Thakur7 case, which has
been relied upon by learned counsel for both the parties. The second
document in the form of an application has been filed on the same day. It
is not as if the first document, which is an application of the IO was
withdrawn to file the second document, which purports to be the report
of the public prosecutor. It is on the analysis of the first document that
the second document has been filed, albeit both containing the
endorsement of the public prosecutor. There are averments in the second

application referring to the progress of the investigation and the rejoinder
before us elucidates that the public prosecutor had the benefit of
scrutinising these papers. There are additional and expanded grounds set
out in the second document.
38. Mr. Mukul Rohatgi, learned senior counsel appearing for the
appellant/State has rightly contended that there is a material difference in
the facts of the present case and those of Hitendra Vishnu Thakur case,
inasmuch as the application in that case was in the form of an affidavit of
the IO, whose signatures were identified by an endorsement of the public
prosecutor. It is in those circumstances it was held that mere
identification by the public prosecutor, of the deponent of the affidavit
could not justify the application to be treated as a report of the public
prosecutor. In the present case, the second document contains a clear
endorsement of the public prosecutor in support of the averments made
therein.
39. No doubt, in para 23 of Hitendra Vishnu Thakur case, this Court
laid emphasis on the importance of the scrutiny by a public prosecutor so
as to not leave the detenu in the hands of the IO alone, being the police

authority. The public prosecutor, thus, has the option to agree or disagree
with the reasons given by the IO for seeking extension of time but in the
facts of the present case, the second document in the form of an
application shows scrutiny of the first document and thereafter details
grounds and expanded reasons for the requirement of further time to
complete the investigation.
40. Undoubtedly the request of an IO for extension of time is not a
substitute for the report of the public prosecutor but since we find that
there has been, as per the comparison of the two documents, an
application of mind by the public prosecutor as well as an endorsement
by him, the infirmities in the form should not entitle the respondents to
the benefit of a default bail when in substance there has been an
application of mind. The detailed grounds certainly fall within the
category of “compelling reasons” as enunciated in Sanjay Kedia case.
41. We are, thus, not able to persuade ourselves to agree with the
conclusions of the learned single Judge of the Bombay High Court in the
impugned order and hold that the respondents would not be entitled to
the benefit of default bail and consequently the impugned order is set
aside.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.264 of 2019

THE STATE OF MAHARASHTRA Vs  SURENDRA PUNDLIK GADLING

SANJAY KISHAN KAUL, J.
Dated:February 13, 2019.

Print Page

Whether court can extend time to deposit consideration in execution of award of Lok adalat?

In our opinion, the award of the Lok Adalat is fictionally deemed to be decrees of Court and therefore the courts have all the powers in relation thereto as it has in relation to a decree passed by itself. This, in our opinion, includes the powers to extend time in appropriate cases. In our opinion, the award passed by the Lok Adalat is the decision of the court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court. The effect is the same.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4677 of 2005

Decided On: 04.08.2005

P.T. Thomas Vs. Thomas Job

Hon'ble Judges/Coram:

Ruma Pal and AR. Lakshmanan, JJ.

Citation:(2005)6 SCC478

Print Page

Whether court has power to extend time for investigation of criminal case?

 We now turn to the subsidiary issue, namely, whether the
High Court could have extended the period. The provisions of the Code do
not empower anyone to extend the period within which the investigation
must be completed nor does it admit of any such eventuality. There are
enactments such as the Terrorist and Disruptive Activities (Prevention) Act,
1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly
contemplate extension of period and to that extent those enactments have
modified the provisions of the Code including Section 167. In the absence
of any such similar provision empowering the Court to extend the period, no
Court could either directly or indirectly extend such period.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1218 OF 2018
@ SPECIAL LEAVE PETITION (CRIMINAL) NO.6453 OF 2018

Achpal @ Ramswaroop & Another Vs State of Rajasthan.

Uday Umesh Lalit, J.
Dated:September 24, 2018

Print Page

Whether court can impose suitable conditions while extending time for filing of cross objection?

The position that now emerges is that while extending the time for filing of the cross-objection under Order 41 Rule 22(1) of the CPC same principles governing the discretion of the Court under Section 5 of the Limitation Act do not apply and it is the principle of fitness of the case, depending on fact-situations of cases, that applies, and that this fitness principle should always be applied in a liberal and pragmatic way. It is also clear that there is no fetter on the power of the Court to impose suitable conditions while extending the time for filing of the cross-objection, as long as conditions imposed are reasonable. So, the argument of learned counsel for the applicant that whenever it is found that there is a fit case for extending the time to file cross-objection, no condition be imposed in doing so must fail and it does.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Application No. 1218 of 2017 in Cross Objection ST. No. 14274 of 2017 and First Appeal No. 818 of 2013

Decided On: 13.10.2017

V.I.D.C. Vs. Kawadu Narayan Tandulakar and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2017(6) MHLJ 780

Print Page

Whether court can extend time for deposit of money in suit for specific performance of contract?

From the language of Sub-section (1) of Section 28, it could be seen that the Court does not lose its jurisdiction after the grant of the decree for specific performance nor it becomes functus officio. The very fact that Section 28 itself gives power to grant order of rescission of the decree would indicate that till the sale deed is executed in execution of the decree, the trial Court retains its power and jurisdiction to deal with the decree of specific performance. It would also be clear that the Court has power to enlarge the time in favour of the judgment-debtor! to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment-debtor and rejected. In other words, the Court I has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. It is true that the respondent has not given satisfactory explanation of every day's delay. It is not, unlike Section 5 of the Limitation Act, an application for condonation of delay. It is one for, extension of time. Under theses circumstances, the executing Court as well as the High Court had exercised j discretion and extended the time to comply with the conditional decree. Accordingly, we do not find any valid and justifiable reason to interfere with the order passed by the High Court confirming the order of the executing Court when in particular, the High Court has further enhanced a sum of Rs. 16,000/- to compensate the petitioner for loss of enjoyment of the money.

IN THE SUPREME COURT OF INDIA

SLP (C) No. 2283 of 1997 (CC No. 721 of 1997)

Decided On: 15.01.1997

 Sardar Mohar Singh Vs. Mangilal alias Mangtya

Hon'ble Judges/Coram:

K. Ramaswamy, Saiyed Saghir Ahmad and G.B. Pattanaik, JJ.

Citation: (1997) 9 SCC 217.

Print Page

When it is not permissible for court to extend time U/S 151 of CPC?

 The question is whether a trial court after it has ordered specific performance of a contract, on a sum of money being put in within a specified time and also ordered that if the money is not put in within that date, the suit would stand dismissed, has jurisdiction thereafter to extend the time.

 4. The question whether section 151 of the Code of Civil Procedure gives the court jurisdiction to extend the time is more difficult. In the first place we have to remember that if the Court has lost seisin of the case altogether there is no scope for the application of section 151 C.P.C. It is only 


if the court has retained jurisdiction in the litigation that the question of making any order in inherent jurisdiction arises. If jurisdiction had already ceased to exist the scope of making order in the inherent jurisdiction of the court totally disappears. The real question, therefore, is whether in a case like where an order has been made for the payment of certain money within a certain time for the purpose of getting specific performance and at the same time an order has also been made that if the money is not paid the suit will stand dismissed, the court retains jurisdiction. Though not without hesitation, I have reached the conclusion that in such a case it will be unrealistic and unjust to say that the court retains jurisdiction. Whether the court has retained jurisdiction or not will, in my view, depend very much on the substance of the directions given. If in granting a decree for a specific performance the court makes it conditional on the payment being made within a certain time and it appears that the time specified was intended by the Court to be the essence of the order, it would be unreasonable, in my opinion, to hold that the court has still retained jurisdiction. Where a decree for specific performance is made and at the same time a direction is given to the plaintiff to put in the money within a certain time and there is no indication that time is the essence of the order, it might be possible and ordinarily reasonable to say that though a time has been specified for the performance of the act, the court has not finally dealt with the matter and retains jurisdiction to pass such other orders as may appear to it to be reasonable. 

 5. In our own Court it was decided in Kshetra Mohan Ghose v. Gour Mohan Kapali (2) (37 C.W.N. 878) that where a certain time is fixed by a deed of the court for taking some steps and it directs that on failure of doing so within the time limited the case should stand dismissed, the court has no jurisdiction to extend the time limited by the decree. That it is true was not in a case of specific performance.

Calcutta High Court

[Civil Revisional Jurisdiction]

(Before K.C. Das Gupta and Debabrata Mookerjee, JJ.)

Bhutnath Das and Ors. 

V

Sahodeb Chandra Panja 

Civil Revn. Case No. 2526 of 1957

Decided on September 16, 1958

Citation:1958 SCC OnLine Cal 77 : (1961-62) 66 CWN 645 : AIR 1962 Cal 485

Print Page

When contractor is not entitled to claim damages from government?

There is another perspective on the method or manner in which limitation is to be computed. We have already narrated that the Respondent, on every occasion when the extension was sought by it, had requested to be compensated for delay. The Appellant State had granted the extensions but had repudiated and rejected the Respondent's claims for damages. The effect of these events would be that the cause of action for making the claim for damages indubitably arose on each of those occasions. It is certainly arguable that the Appellant State may have also been aggrieved by the delay, although the facts of the case appear to be unfavourable to this prediction, since delay can reasonably be laid at the door of the Appellant. The Respondent, however, could prima facie be presumed to have accepted a renewal or extension in the period of performance but with the rider that the claim for damages had been abandoned by it. If this assumption was not to be made against the Respondent, it would reasonably be expected that the Respondent should have filed a suit for damages on each of these occasions. In a sense, a fresh contract would be deemed to have been entered into between the parties on the grant of each of the extensions. It is therefore not legally possible for the Respondent to contend that there was a continuous breach which could have been litigated upon when the contract was finally concluded. In other words, contemporaneous with the extensions granted, it was essential for the Respondent to have initiated legal action. Since this was not done, there would be a reasonable presumption that the claim for damages had been abandoned and given a go-by by the Respondent.

11. In a works contract, more often than not, delays occur, and that is why it is assumed that time is not of the essence. Where extensions are asked for and granted, there must be a clear and discernable stand on behalf of either of the parties that the extension is granted and/or accepted without prejudice to the claim of damages. It has become commonplace that neither party lodges a claim for damages, but waits for the end of the contract to raise these disputes, taking advantage of the nebulous and equivocal nature of the transactions between them. This, however, is not the position that obtains before us since the Appellant State had categorically posited that the claim for damages for the alleged delay on its part would not be entertained.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1770 of 2005

Decided On: 16.10.2015

 State of Gujarat Vs. Kothari and Associates

Hon'ble Judges/Coram:

Vikramajit Sen and Shiva Kirti Singh, JJ.

Citation:(2016) 14 SCC 761

Print Page

When court should not strike off defence for non payment of rent amount?

 In Shyamcharan Sharma (supra), the Supreme Court while
considering Section 13(6) of the Act of 1961 has held in no
uncertain terms that Section 13(6) of the Act of 1961 is
discretionary in nature and court has power under Section 13(6) to
condone delay in depositing rent and condensely crystallized as
under: -
"4. ... Section 13(6) does not clothe the landlord
with an automatic right to a decree for eviction; nor
does it visit the tenant with the penalty of a decree for
eviction being straightway passed against him.
Section 13(6) vests, in the court, the discretion to order
the striking out of the defence against eviction. In
other words, the court, having regard to all the
circumstances of the case, may or may not strike out
the defence. If Section 13 were to be construed as
mandatory and not as vesting a discretion in the court,
it might result in the situation that a tenant who has
deposited the arrears of rent within the time stipulated
by Section 13(1) but who fails to deposit thereafter the
monthly rent on a single occasion for a cause beyond
his control may have his defence struck out and be
liable to summary eviction. We think that Section 13
quite clearly confers a discretion, on the court, to strike
out or not to strike out the defence, if default is made in
deposit or payment of rent as required by Section
13(1). If the court has the discretion not to strike out
the defence of a tenant committing default in payment
or deposit as required by Section 13(1), the court
surely has the further discretion to condone the default
and extend the time for payment or deposit. Such a
discretion is a necessary implication of the discretion
not to strike out the defence. Another construction
may lead, in some cases, to a perversion of the object
of the Act, namely, 'the adequate protection of the
tenant'. Section 12(3) entitles a tenant to claim
protection against eviction on the ground specified in
Section 12(1)(a) if the tenant makes payment or
deposit as required by Section 13. On our
construction of Section 13 that the court has the power
to extend the time for payment or deposit, it must
follow that payment or deposit within the extended time
will entitle the tenant to claim the protection of Section
12(3). One of the arguments advanced before us was
that there was no express provision for extension of
time for deposit or payment of monthly rent
subsequent to the filing of the suit whereas there was
such express provision for payment or deposit of
arrears of rent that had accrued before the filing of the
suit. Obviously, express provision for extension of
time for deposit or payment of rent falling due after the
filing of the suit was not made in Section 13(1) as the
consequence of non-payment was proposed to be
dealt with by a separate sub- section, namely Section
13(6). Express provision had to be made for extension
of time for deposit or payment of rent that had accrued
prior to the filing of the suit, since that would ordinarily
be at a very early stage of the suit when a written
statement might not be filed and there would,
therefore, be no question of striking out the defence
and, so, there would be no question of Section 13(6)
covering the situation."
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Art. 227) No.152 of 2016
Pawan Verma,
V
Sanjay Kumar Hanumanta, 
Hon'ble Shri Justice Sanjay K. Agrawal
Dated: 15/11/2016
Citation: AIR 2017(NOC) 138 Chh

Print Page

When there is no presumption of extension of time in suit for specific performance of contract?

Having given above findings, the obvious corollary is that
since the Plaintiff-Buyer failed to comply with the terms of the
decree, the suit stood dismissed as the order passing the
decree was a peremptory order. In light of this, we do not find
it necessary to address the arguments made by the counsel on
the point of bona fide purchaser. Further, the contention that
the acceptance of deposit made by the Plaintiff-Buyer on
29.05.2007 is an implied grant of extension of time is a
misplaced one. Reliance cannot be placed on Md.
Alimuddin v. Waizuddin and Anr., (1998) 9 SCC 108, as in
that case there was an application for extension of time which
was granted, though at the risk of the depositor, along with the
deposit of amount. This Court in the said case held that when
the Court had allowed the application for extension of time in
its wisdom, there was no reason to disturb it later. In the
present case, there is rather a reverse situation wherein the
Trial Court has dismissed the application for extension of time
giving due reasons. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3213 OF 2015

P.R. Yelumalai V N.M. Ravi 
Dated:March 27, 2015. 
Citation: 2016(2) MHLJ 483, 2015 ALLSCR 1499,

Print Page

When consumer forum can not take action for non compliance of its order?

The facts stated earlier would clearly show that the decree dated 17/01/2007 had been rendered inexecutable in the instant case. As a matter of record, I must say, in the earlier round of litigation being Writ Petition No. 4004/2012, this Court while dismissing the writ petition filed by the present petitioner against the respondent by the order dated 17/12/2012 observed that the order dated 17/01/2007 was so clear as to obviate the need for seeking an additional order of rescinding the decree dated 17/01/2007. These observations clearly implied that the decree dated 17/01/2007 after the expiry of period of 30 days from the date of the decree had been rendered inexecutable. Precisely, that was the reason why it was observed that there was no need for the petitioner to seek any order for recalling or rescinding the order or decree dated 17/01/2007 on account of non-payment of the balance consideration amount within the stipulated time by the respondent.

8. Once it is found that the decree dated 17/01/2007 had been rendered inexecutable, the only conclusion that is possible would be that no offence is constituted, there being no obligation remaining on the part of the petitioner to be discharged under the law. The learned Members of the Consumer Forum have not considered this fundamental aspect of the whole matter and the result is of passing of an illegal and arbitrary order. The order impugned in this petition cannot be sustained in law. It must go and so the proceedings initiated under the provisions of Section 27 of the Consumer Protection Act.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 742 of 2015

Decided On: 16.08.2016

Aditya Developers

Vs.

 Manish Ranganath Thorat

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2017 ALLMR(CRI) 1551

Print Page

Whether accused is entitled to mandatory bail if police makes application for extension of time on same day?

A further perusal of the reported judgment would
show that the accused was sent to the judicial custody on 05.12.2006
and on 14th of March, 2007, an application for release of bail under
Section 167(2) Cr. P.C. was filed. It was on 15th of March, 2007, i.e.
on the next day, an application was filed for extension of time by the
Investigation Officer. In Nirala Yadav‟s case, the Court interfered as
the application for extension of time was filed after the right for
compulsive bail accrued to the petitioner. In the present case, though
the application for compulsive bail was filed prior in time, but it was
on the same day, the Investigating Officer sought extension in time and
the extension in time was granted on the same day. Therefore, the rigor
of law laid down in Nirala Yadav‟s case (supra) cannot be extended to
the facts of the present case.
8. Similar issue has been examined by this Court in
Cr.W.J.C. No.79 of 2016 (Upendra Yadav @ Munshi Yadav alias
Munshi Yadav Versus The State of Bihar) decided on 02nd March, 
2016, wherein this Court has held to the following effect:
“8. In the present case, the Magistrate has decided the application
on the same day, but after obtaining the report from G.R. Clerk. This
was no attempt to frustrate the right of the petitioner to be released on
bail, but to verify whether the petitioner has completed 90 days; and that
whether the charge-sheet has been filed or not. Since the charge-sheet
has been filed on the same day on which date the application for
“compulsive bail” was filed, the judgment in Nirala Yadav case (supra)
will not be applicable to the facts of the present case as in the aforesaid
case, there was a request by the investigating agency for extension of
time for filing of the charge-sheet In the present case, no time sought for
filing of the charge-sheet. The charge-sheet was filed on the same day
though after the application for bail was filed.”
9. In view of the above, I do not find any error in the
order passed by the learned Trial Court

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.550 of 2016

Suresh Kora, V  The State of Bihar,

CORAM: HONOURABLE MR. JUSTICE HEMANT GUPTA

Date: 20-09-2016
Citation: 2017 CRLJ(NOC)85 Pat

Print Page