Tag Archives: DUe Diligence

Adverse Possession – Classic Requirements

The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729

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Applicability of – Section 14 of the Limitation Act

The scope and applicability of Section 14(2) of the Limitation Act, 1963 in the context of proceedings under the U.P. Sales Tax Act, 1948 came up for consideration in the case of Commissioner of Sales Tax v. Parson Tools and Plants, (1975) 4 SCC 22, wherein it was held that the authorities, irrespective of whether they exercise original, appellate or revisional jurisdiction under the Sales Tax Act are merely “Administrative Tribunals” and not “Courts” within the contemplation of Section 14(2) and therefore Section 14 of the Act, 1963 does not in terms apply to proceedings before such Tribunals. The Court laid down the principle that if a legislature in a special statute prescribes a certain period of limitation for filing an application thereunder and provides in clear terms that such period on sufficient cause being shown, maybe extended, in the maximum, only upto a specified time limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act, 1963.

The policy underlying and the conditions precedent to applicability of Section 14 have been explained in Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department, (2008) 7 SCC 169 and it was held that on analysing the provisions contained under Section 14 certain conditions must be satisfied before the aforesaid section could be pressed into service. The observations made in the judgment in this regard are as follows:—

“21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:

(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;

(2) The prior proceeding had been prosecuted with due diligence and in good faith;

(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;

(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;

(5) Both the proceedings are in a court.

x x x x x

To attract the provisions of Section 14 of the Limitation Act, five conditions enumerated in the earlier part of this judgment have to co-exist. There is no manner of doubt that the section deserves to be construed liberally. Due diligence and caution are essential prerequisites for attracting Section 14. Due diligence cannot be measured by any absolute standards. Due diligence is a measure of prudence or activity expected from and ordinarily exercised by a reasonable and prudent person under the particular circumstances. The time during which a court holds up a case while it is discovering that it ought to have been presented in another court, must be excluded, as the delay of the court cannot affect the due diligence of the party. Section 14 requires that the prior proceeding should have been prosecuted in good faith and with due diligence. The definition of good faith as found in Section 2(h) of the Limitation Act would indicate that nothing shall be deemed to be in good faith which is not done with due care and attention. It is true that Section 14 will not help a party who is guilty of negligence, lapse or inaction…”

 The judgment in the case of Commissioner of Customs and Central Excise v. Hongo India Private Limited, (2009) 5 SCC 791, also considered the question as to whether the express exclusion of Limitation Act in a local or special law is a mandatory requirement and the factors to be considered for determining if the Limitation Act was excluded even in the absence of express exclusion. It was also held that the applicability of the Limitation Act is to be judged by the terms of the special law and not from terms of the Limitation Act and that the period of limitation cannot be extended by giving a liberal interpretation. Committee of Management, Angoori Devi Inter College v. State of U.P., 2020 (164) FLR 914.

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Period of Limitation – Founded on the Principle of Public Policy

In Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510, it was held as under:
“The period of limitation is founded on public policy, it’s aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. The statute, i.e. the Limitation Act is founded on the most salutary principle of general and public policy and incorporates a principle of great benefit to the community. It has, with great propriety, been termed a statute of repose, peace and justice. The statute discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of time, lest they should be immortal while men are mortal.
Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae Ut Sit Finis Litium (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time.” M/s H.K. Consumer Cooperative Society Ltd. v. State of U.P., 2017 (120) ALR 855.

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Due Diligence

The phrase “due diligence” came for consideration before the Supreme Court in Chandra Kanta Bansal v. Rajinder Singh Anand, 2005 (34) AIC 249 (SC) : (2005) 6 SCC 344, in which it has been held that the words “due diligence” have not been defined in the CPC. According to Oxford Dictionary (Edition 2006), the word “diligence” means careful and persistent application or effort. “Diligent” means careful and steady in application to one’s work and duties, showing care and effort. As per Black’s Law Dictionary (18th Edition), “diligence” means a continual effort to accomplish something, care, caution, the attention and care required from a person in a given situation. “Due Diligence” means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases (Permanent Edition 13-A) “due diligence” in law, means doing everything reasonable, not everything possible. “Due Diligence” means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.
The Hon’ble Apex Court again in J. Samuel v. Gattu Mahesh, 2012 (115) RD 533, held that due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. The term “due diligence” determines the scope of a party’s constructive knowledge, claim and is very critical to the outcome of the suit. Vidyawati v. State of U.P., 2014 (124) RD 722 (LB).

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