Section 15 Exclusion of time in certain other cases
(1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
(2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.
Explanation: In excluding the time required for obtaining the consent or sanction of the government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the government or other authority shall both be counted.
(3) In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.
(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.
(5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded.
Exclusion of Time in Certain other cases—
Section 15 provides for exclusion of time where there has been an injunction, or notice has to be give, or the previous sanction of the Government has to be obtained, or where a liquidator has been appointed. Five rules are laid down in this connection, as under:-
(a) When a suit or execution proceedings are stayed by injunction or order: Sec. 15(1)
(b) When notice to Government or any other authority is necessary, the period of notice: Sec. 15(2)
(c) When receiver in insolvency or liquidator in winding up is appointed: Sec. 15(3)
(d) When proceedings to set aside sale has been prosecuted: Sec. 15(4)
(e) When the defendant has been absent from India: Sec. 15(5)
Sec. 15(1) –
According to Sec. 15(1), where the instruction of a suit or the execution of a decree has been stayed by an injunction or order, the period during which such injunction or order is in force can be excluded in computing the period of limitation for such suit or application. The day on which such injunction or order was issued or made and the day on which it was withdrawn, shall also be excluded.
The words ‘stayed by injunction or order’ have reference to order of courts and not to a disability to sue or to apply arising from other circumstances such as declaration of war. In order to attract Sec. 15(1), it is only the order of stay passed by the court that is necessary and not that the order is proper or valid.
Sec. 15(2) –
According to Sec. 15(2), if law requires that a notice should be given or consent or sanction of the government or any other authority should be obtained before a suit is instituted, then the period of such notice or the time required for obtaining such consent or sanction shall be excluded in computing the period of limitation for such suit. E.g. Sec. 80 of the CPC, 1908, which provides that no officer etc. could be sued until the expiration of two months next after the notice in writing has been given (i.e. not strictly needed), the fact that it has been given will entitle the plaintiff to exclude the period of such notice (T.P.K. Nair v. Union of India AIR 1999 Ker. 80).
Under Sec. 15(2), the notice must be a notice of suit and the enactment requiring the notice to be given must prescribe the period of notice before the expiry of which the claimant cannot institute a suit.
Sec. 15(3) –
According to Sec. 15(3), in respect of suits on behalf of an insolvent or a company in liquidation, the period between the date of the filing of the petition for adjudication or winding up and the appointment of receiver, liquidator, etc. and period of three months thereafter shall be excluded in computing the period of limitation for suits by or on behalf of an insolvent’s estate or the company.
It is common knowledge that by the time a receiver or liquidator is appointed in insolvency or liquidation proceedings, and the receiver of liquidator after getting information about the assets and liabilities of the estate gets down to the task of realizing the assets of the estate, claims in favour of such estate or company get barred to the detriment of the persons entitled to the benefits of the assets.
Sec. 15(4) –
According to Sec. 15(4), if a purchaser at a sale in execution has to file a suit to recover possession of the property purchased by him, the time during which the application to set aside the sale was being fought out (i.e. prosecuted) will be excluded from computation.
Sec. 15(5) –
According to Sec. 15(5), if a defendant has gone out of India i.e. has gone to some foreign country/ from the territories outside India under the administration of the Central Government, the time during which he remains outside will be excluded from computation.
The words “absent from India” do not necessarily imply that the defendant was present in India at the time the cause of action accrued or the period of limitation commenced to run. The sub-section will apply equally to cases where the defendant was absent altogether from India at the time of the accrual of cause of action, as to cases where he leaves India after the period of limitation.
In Sec. 15(5), the defendant is one who was at one time present in India and later has been absent from India. A person who has never been in India cannot be considered as having been ‘absent from India’. In P.J. Johnson v. Astrofied Armadorn [AIR 1999 Ker. 53 (F.B.)], it was held that in a suit for recovery of money for goods and services supplied to the ship of a foreign corporation, the foreign corporation was never present in India and necessarily, therefore, was never absent from India and Sec. 15(5) cannot, therefore, be attracted while computing the period of limitation for a suit filed in India against such corporation.
Sec. 15(5) has reference only to the absence of the defendant from the realm, not to that of the plaintiff. A plaintiff out of the realm may prosecute a suit by his attorney. Further, the plaintiff’s voluntary or involuntary absence in a foreign country cannot bar the operation of limitation. The onus is upon the plaintiff to prove that the defendant has been absent from India.
The defendant includes ‘any person from or through whom the defendant derives his liability to be sued’. In Turner Morrison Co. Ltd. V. Hungerford Investment Trust Ltd. (AIR 1972 SC 1311), a foreign company, was carrying on business through a local company. It was in arrears of income[1]tax. The local company paid those arrears of the foreign company. The suit was brought after the limitation period of three years. The local company which was the plaintiff tried to claim the benefit of Sec. 15(5). Held that a company is resident where it carries on its business and the foreign company was carrying on its business in India and therefore it was not absent from India. Consequently the benefit of Sec. 15(5) could not be given to the local company.
In a suit against partners, where one of the partners is absent from India, it has been held that the facts of his absence entitles the plaintiff to deduct the time not against all the defendants, but against the absentee defendant only.
