M/S Seagull Marine Services vs New Mangalore Port Trust
2022 Latest Caselaw 3188 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF FEBRUARY, 2022

                         BEFORE

       THE HON'BLE Mr. JUSTICE SURAJ GOVINDARAJ

     WRIT PETITION No.34087 OF 2017 (GM CPC)

BETWEEN:

M/s. SEAGULL MARINE SERVICES
S.R. TOWERS, 3RD FLOOR
14, 4TH LANE, NORTH BEACH ROAD
CHENNAI-600 001.
REPRESENTED BY ITS PROPRIETOR
SMT. S. RAMJAN BEEVI.
                                              ...PETITIONER
(BY SRI UDAYA SHANKAR RAI P., ADVOCATE)

AND:

1.     NEW MANGALORE PORT TRUST
       PANAMBUR, D.K.-575 006
       REPRESENTED BY ITS PRINCIPAL OFFICER
       & CHAIRMAN.

2.     M/S. S.S.MARITIME
       1ST FLOOR MATHIAS BUILDING
       URWA STORES
       MANGALORE-575006.
                                          ...RESPONDENTS
(BY SRI NIKIT BALA, ADVOCATE FOR R.1
R.2 SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDERS DATED 10.07.2017 PASSED IN I.A. No.IV AND V IN
O.S.NO.196 OF 2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
AT MANGALURU, D.K. VIDE ANNEXURE-H.
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      THIS WRIT PETITION COMING ON FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:


                       ORDER

1. Petitioner is before this Court seeking for the

following reliefs:

a) Issue an order in the nature of certiorari to set aside the order dated 10.07.2017 passed in I.A.No.IV and V in OS No.196 of 2014 on the file of the Senior Civil Judge at Mangaluru, D.K. vide Annexure-H.

b) Issue such other reliefs as this Hon'ble Court deems fit in the circumstances of the case including the cost of this Writ Petition."

2. For the purpose of convenience, the parties are

referred to by their rank in the Trial Court.

3. O.S. No.196/2014 had been filed by respondent

No.1 herein seeking for recovery of a sum of

Rs.3,12,69,951/-. In the said suit, upon notice

being served, the petitioner who is defendant

therein entered appearance and disputed the

claim of the plaintiff/respondent No.1.

4. In the plaint filed by the plaintiff, it was

contended that the defendant being the owner of

the ship MV Seagull-3 had berthed on

09.05.2008 at Mangalore Port despite permission

having been granted for the said ship to sail, the

same did not and as such, the defendant was

required to make payment of berthing charges

as also penal berthing charges, as regards

which, demand has been raised, invoices issued

and thereafter, despite notice being issued, the

payment had not been made.

5. It is in that background that the aforesaid sum of

Rs.3,12,69,951/- was sought to be recovered on

account of the demanded amount minus the

amount received on account of sale of the vessel

and interest thereon.

6. In the written statement filed by the defendant,

the defendant contended that the claim made by

the plaintiff is absolutely false. The defendant is

not liable to make payment of any of the

amounts.

7. It is pertinent to mention here that on account of

non-payment of the amount due, the respondent

initiated proceedings to sell the vessel. The

vessel was sold and an amount of

Rs.55,12,345/- recovered in respect thereof by

way of auction.

8. On the appearance of the defendant, the

defendant, in its written statement, had clearly

stated that the suit is misconceived, untenable,

speculative and barred by limitation. The

defendant disputed both the berthing charges as

also the penalty including the permission to sell

said to have been granted by the plaintiff. The

amounts claimed towards berthing charges and

penal berthing charges were denied and stated

to be erroneous and illegal. It was further denied

that penal berthing charges was liable to be paid

during the detention period by any statutory

authority since detention was ordered and

detention being on the ground of the ship being

un-seaworthy. The defendant also challenged the

auction of the ship and on that basis contended

that the suit is liable to be dismissed.

9. Upon the pleadings being completed, issues were

framed on 11.12.2015 and the plaintiff lead

evidence of its first witness (PW.1) as also

marked certain documents.

10. It is at this stage, on 09.09.2016, I.A.No.IV

came to be filed seeking amendment of plaint

and I.A.No.V came to be filed to produce the

revised bill. In the amendment application, it is

sought to be contended that there was an error

in the calculation of the amount which had been

claimed in the earlier demand notice as also in

the plaint and, therefore, the amounts sought for

has to be revised by permitting the plaintiff to

amend the plaint and in furtherance of the same,

I.A.No.V was filed seeking to produce revised

bill, on which the revised claim was made.

11. The Trial Court after hearing the parties, allowed

the application on the ground that if the

amendment of plaint is allowed, the defendant

would always file written statement. If the

amendment is not allowed, hardship would be

caused to the plaintiff and the amendment is

only sought to rectify the mistake in the claim

made.

12. It is this order dated 10.07.2017 which is

challenged in the present proceedings.

13. Sri Udaya Shankar Rai, learned counsel for the

petitioner would submit that

13.1. the Trial Court ought not to have allowed

the said amendment application more-so

when the amendment sought was

hopelessly barred by law of limitation in as

much as even according to the plaintiff, the

cause of action for filing of the suit arose

on the first payment being made on

14.10.2011, when the invoices demanding

the payment was submitted, the suit

having been filed on 15.12.2014, the claim

being denied in the written statement, the

amendment was sought for on 09.09.2016,

it is nearly five years from the date of

payment being made.

13.2. Therefore, firstly, no revision of the bill or

demand could be made in a pending suit

and secondly, on such revised demand, no

amendment could be sought for, which is

barred by limitation.

13.3. Even if it is accepted that there is any

amount due, there is a vested right created

in favour of the defendant on account of

the delay in seeking such a claim which has

led the claim of the plaintiff being barred

by limitation.

13.4. On these grounds, he submits that the writ

petition requires to be allowed. The order

dated 10.07.2017 be quashed and

I.A.No.IV filed seeking amendment of the

plaint be dismissed.

14. Sri Nikit Bala, learned counsel for respondent

No.1 submitted that:

14.1. The applications have been rightly allowed

by the Trial Court. The amendment which

has been sought for is a rectification of

mistake which has occurred at the time

when the demand was made as also when

the plaint was presented.

14.2. The mistake came to the knowledge of the

plaintiff only at the time when evidence

was being lead and it is only to rectify the

said mistake that an amendment has been

sought for.

14.3. In this regard, he relies upon Section 17 of

the Limitation Act, 1963, to contend that

this claim sought for by way of amendment

is not barred by limitation since the

limitation period would commence from the

date on which the mistake came to be

realised by the plaintiff.

14.4. The realisation having occurred in the year

2016, the amendment application having

been filed immediately thereafter, the

amendment is within time.

14.5. In support of these contentions he relies

upon the following decisions:

14.6. M/s. D. Cawasji & Co., and Others vs. State of Mysore and another reported in (1975)1 SCC 636, more particularly paragraph 7 which is reproduced hereunder for easy reference;

"7. Section 17(1)(c) of the Limitation Act, 1963, provides that in the case of a suit for relief on the ground of mistake, the period of limitation does not begin to run until the

plaintiff has discovered the mistake or could, with reasonable diligence, have discovered it. In a case where payment is made under a mistake of law as contrasted with a mistake of fact, generally the mistake becomes known to the party only when a court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a pronouncement, it is seldom that a person can, even with reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law.

14.7. Union of India vs. Bharat Vijay Mills Co. Ltd. reported in 1984 (3) ECC 1, more particularly paragraphs 11 and 12 which are reproduced hereunder;

"11. As pointed out above. Article 96 of the 1908 Act which provided for suit for relief on the ground of mistake does not find place in the 1963 Act. There is no separate Article prescribing the period of limitation for suit for relief on the ground of mistake and, therefore, such suit would be governed by residuary Article 113 of the Schedule to the 1963 Act. Under Article 96 of the 1908 Act period of limitation of three years commenced to run when the mistake became known to the plaintiff. This provision, it would appear, is now taken care of by Section 17(1) of the 1963 Act. If the suit for relief on the ground of mistake is covered by Section 17(1), the period of limitation would not begin to run until the plaintiff discovers the mistake or could with

reasonable diligence have discovered it. This would be the position irrespective of the accrual of cause of action. In other words, although Article 113 provides that limitation period of three years would begin to run from the date of accrual of cause of action in view of the provision contained in Section 17, it would not so begin to run until the mistake is discovered or could with reasonable diligence have been discovered. Therefore, the crucial question is whether the suits filed by the Mills are covered by Section 17(1) of the 1963 Act. The Supreme Court in Venkataraman & Co. v. State of Madras held that the suit of the nature filed by the Mills was covered by Article 96 of the 1908 Act. In that case also, the suit was filed for recovery of amounts paid to the State of Madras under a mistake of law. The plaintiffs in that case came to know of the mistake when decision in Gagan Dunkerley & Co. (Madras) Ltd. v. The State of Madras A.I.R. 1954 Madras 1130, was pronounced by the High Court of Madras on 5th April, 1954. The suit for recovery of the amount paid on the ground of mistake was filed on 23rd March, 1955, which was within three years from the date of the said knowledge. The Supreme Court held that Article 96 of the Limitation Act applied and the suit which was filed within three years from the date of the knowledge was clearly within time under the said Article. It is, therefore, clear that the mistake referred to in Article 96 of the 1908 Act covered both mistake of fact as well as law. Since the provision contained in the said Article 96 is now substantially incorporated in Section 17(1) of the 1963 Act, in view of the above decision of the Supreme Court, it

must be held that the mistake referred to in Section 17(1) is not confined to mistake of fact but it covers both mistake of fact as well as law. However, this question is now no longer open to doubt or debate in view of the pronouncement of the Supreme Court in D. Cawasji & Co. v. State of Mysore. In that case dealing with Section 17(1)(c) of the 1963 Act, the Supreme Court observed that in the case of a suit for relief on the ground of mistake, the period of limitation does not begin to run until the plaintiff has discovered the mistake or could, with reasonable diligence, have discovered it. It was farther observed that in a case where payment is made under a mistake of law, as contrasted with a mistake of fact, generally the mistake becomes known to the party only when a Court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a Court makes a pronouncement, it is seldom that a person can, even with a reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law. The Supreme Court held:

"Therefore, where a suit will lie to recover moneys paid under a mistake of law, a writ petition for refund of tax within the period of limitation prescribed i.e., within 3 years of the knowledge of the mistake, would also lie. For filing a writ petition to recover the money paid under a mistake of law, this Court has said that the starting point of limitation is from the

date on which the judgment declaring as void the particular law under which the tax was paid was rendered, as that would normally be the date on which the mistake becomes known to the party. x x x"

12. There is, therefore, no doubt whatsoever that Section 17(1)(c) covers both the mistake of fact as well as law. It was then urged on behalf of the Revenue that in any case the Mills could with reasonable diligence have discovered the mistake of law on the date on which they paid excise duty. It was submitted that no question of interpretation of any of the provisions of the Excise Act or tariff items of the Schedule was involved. All that the Mills had to do was to peruse the tariff items in the Schedule to find out whether any excise duty was payable on blended yarn. If they had carefully perused the tariff items, they would have known on the date they started paying the excise duty that there was no tariff item under which duty was payable on blended yarn. Therefore, according to the Revenue, the period of limitation of three years would begin to run from the date the excise duty was first paid and thereafter on every date on which such payment was made. In D. Cawasji & Co 's case, the Supreme Court has clearly observed that though a party could with reasonable diligence discover a mistake of fact even before a Court makes a pronouncement, it is seldom that a person can, even with a reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law. It must,

therefore, be held that even with reasonable diligence, the Mills could not have discovered the mistake of law prior to January 15, 1976 the date on which this Court held that excise duty levied on blended yarn prior to March 15/16, 1972, was ultra vires or illegal. The mistake of law was discovered by the Mills only on January 15, 1976 and the period of limitation prescribed by Article 113 read with Section 17 (1) (c) would, therefore, begin to run only from January 15, 1976. Since it is not disputed that all the suits are filed within three years from January 15, 1976, all the suits must be held to be within time."

14.8. Mahabir Kishore and others vs. State of Madhya Pradesh reported in AIR 1990 SC 313, more particularly paragraph 21 which is reproduced hereunder;

"21. Section 17(1)(c) of the Limitation Act, 1963, provides that in the case of a suit for relief of the ground of mistake, the period of limitation does not begin to run until the plaintiff had discovered the mistake or could with reasonable diligence, have discovered it. In a case where payment has been made under a mistake of law as contrasted with a mistake of fact, generally the mistake become known to the party only when a court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a pronouncement, it is seldom that a person can, even with reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law."

14.9. Mangalore Ganesh Beedi Works vs. The Corporation of the City of Mangalore reported in 2000(4) KCCR 2434, more particularly paragraph 20 which is reproduced hereunder;

"20. Article 113 of the Limitation Act deals with Suits, for which no period of limitation is prescribed elsewhere in the schedule to the Act. Section 17 of the Act inter alia provides that where in a Suit or application, the relief claimed is on the basis of a mistake or fraud, the period of limitation shall not be begin to run until the Plaintiff or applicant had discovered the fraud or the mistake or could with reasonable diligence have done so. The term "mistake" has not been defined by the Limitation Act, but given its literal meaning should imply a misunderstanding of meaning; error or fault, in thought or action. In order to bring his case within the purview of relief flowing from the consequences of a mistake, the Plaintiff was required to make suitable averments indicating the nature of the mistake committed by it and the facts leading to its discovery. Since the Plaintiffs case was not based on a mistake of fact, the Suit filed by it could be brought under Article 113 only if the payment of octroi was made in ignorance of an invalidity attached to the provision, or a judgment of a competent Court declaring the same to be invalid or unenforceable. That however is not the case set up by the Plaintiff. It is not as though the provision under which octroi was being demanded and recovered from the Plaintiff had been declared to be unconstitutional by

a competent Court, so that any payment made in ignorance of any such declaration could be said to be a payment made under a mistake. It is on the contrary a case, where the Plaintiff had from the inception resisted its liability to pay octroi on the ground that the goods imported by it into the municipal limits of the Mangalore Municipality were not exigible to any such duty as the same were only in transit and meant for re-export for use or consumption outside such limits. Writ Petition No. 4173 of 1976 filed by the Plaintiff was aimed at vindicating that position. The Plaintiff was thus all the time aware of the legal position as regards its liability to pay the duty. A claim for refund could not in such circumstances be said to be a claim based on a mistake factual or otherwise. The decisions of the Supreme Court relied upon by Mr. Holla do not, in that view, lend much assistance to him. In Mahabir Kishore's case, the Supreme Court was examining whether the declaration of a competent Court as regards the invalidity of a provision imposing any tax or liability could be said to be the date of knowledge of the Plaintiff as regards the discovery of the mistake. Answering the question in the affirmative, the Court observed:

"It is thus a settled law that in a suit for refund of money paid by mistake of law, Section 72 of the Contract Act is applicable and the period of limitating is three years as prescribed by Article 113 of the Schedule to the Indian Limitation Act, 1963 and the provisions of Section 17(1)(c) of that Act will be applicable so that the period will begin to

run from the date of knowledge of the particular law, whereunder the money was paid, being declared void; and this could be the date of the judgment of a competent Court declaring that law void.""

14.10. Ramesh B Desai and others vs. Bipin Vadilal Mehta and others reported in AIR 2006 SC 3672, more particularly paragraph 16 which is reproduced hereunder;

"16. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. vs. Hanuman Seva Trust and others) decided on 8.11.2005 and it was held: -

"After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question

of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time."

This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order VII Rule 11(d) CPC."

14.11. Based on the above he submits that while

considering the application for grant or

refusal of amendment, the Court ought not

go into the correctness or falsity of the

amendment and should normally allow the

amendment application in the ends of

justice. The present amendment which is

sought is required to rectify the mistake, in

the ends of justice, for the recovery of

money which are claimed to be due. The

Trial Court has rightly allowed the said

application and this Court ought not go into

the correctness or falsity of the

amendment. In this regard, he relied upon

the decision in the case of Rajesh Kumar

Aggarwal and others vs. K.K. Modi and

others reported in (2006) 4 SCC 385,

amore particularly paragraph 18 and 19,

thereof which are reproduced hereunder for

easy reference;

"18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub- serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger

interest of doing full and complete justice to the parties before the Court.

19. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case."

14.12. Waheeda Begum and others vs. Md.

Yakub and others reported in 2014(2)

ALT 640 more particularly paragraph 40,

which is reproduced hereunder for easy

reference;

"40. Therefore, in view of the above decisions, merely because it is contended by the respondents that the suit on the amended claim would be barred by limitation, the application for amendment of the plaint cannot be rejected. In the present case, there is a dispute as to whether the claim sought to be made by way of amendment is barred by limitation or not. Therefore, the Court below can frame an issue on the point of bar of limitation to

grant the said relief in the suit and then decide it."

14.13. Any bona fide legitimate necessary

amendment as a matter ofcourse is

required to be allowed, by relying upon the

decision in Revajeetu Builders and

Developers vs. Narayanaswamy and

sons and others reported in (2009) 10

SCC 84, more particularly paragraphs 63

and 64 thereof, which are reproduced as

under for easy reference;

"FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS:

63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) Whether the application for amendment is bona fide or mala fide;

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.

64. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

14.14. Relying on the above he submits that the

amendment seeking for rectifying the claim

of amount which had been sought for when

the suit was filed does not change the

character of the suit since the suit remains

to be one for recovery of money. The scope

of the suit also remains the same and no

prejudice would be caused to the defendant

since the defendant can always file its

written statement to the said amended

plaint.

14.15. He relies upon the decision of the Hon'ble

Apex Court in the case of

L.C. Hanumanthappa vs. H.B.

Shivkumar reported in (2016)1 SCC 332

to contend that if amendment is allowed, it

would relate back to the date of the suit.

Hence, the question of the claim being

barred by limitation would not arise since

the amendment would take effect from the

year 2015 when the suit was filed.

14.16. On these grounds, he submits that the writ

petition is liable to be dismissed and the

order passed by the Trial Court not be

interfered with.

15. Heard Sri Udaya Shankar Rai, learned counsel

for the petitioner and Sri Nikit Bala, learned

counsel for the respondent. Though respondent

No.2 has been served, none has entered

appearance.

16. The points that arise for determination before

this Court are:-

i) Whether Section 17 of the Limitation Act would apply if the mistake is that of the party claiming for the benefit under Section 17 of the Limitation Act?

ii) When a fact could have been ascertained by exercise of due diligence, if

the same were not done can it be said to be a mistake?

iii) Whether the amount sought for in the demand notice on which basis the suit has been filed could be sought to be amended or revised at the stage of evidence of the plaintiff?

17. Section 17 of the Limitation Act reads as under:

"17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him,

the period of limitation shall not begin to run until the plaintiff or applicant has

discovered the fraud or the mistake or could, with reasonable diligence, have discovered it;

or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which--

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or

(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.

(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court

may, on the application of the judgment- creditor made after the expiry of the said period extend the period for execution of the decree or order:

Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be."

18. From a reading of sub-clause (c) of Sub-section

(1) of Section 17 it is clear that in a suit or

application is for relief from the consequences of

a mistake, the period of limitation shall not begin

to run until the plaintiff or applicant has

discovered the mistake or could, with reasonable

diligence, have discovered it;

19. Though the word mistake has not been defined

under the Limitation Act, 1963, this Court can

always refer to and rely upon the definition of

mistake as defined under the Indian Contract

Act, 1872.

20. Section 20 of the Indian Contract Act relates to

mistake of fact and Section 21 relates to mistake

of law. The said sections are reproduced

hereunder for easy reference;

" 20. Agreement void where both parties are under mistake as to matter of fact.-- Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void."

Explanation.--An erroneous opinion as to the value of the thing which forms the subject- matter of the agreement, is not to be deemed a mistake as to a matter of fact.

" 21. Effect of mistakes as to law.--A contract is not voidable because it was caused by a mistake as to any law in force in 1[India]; but a mistake as to a law not in force in 1[India] has the same effect as a mistake of fact."

21. In the present case, the contention of learned

counsel for the respondent is that when the

demand was raised in the year 2011, there was

a mistake which was committed by the person

raising the demand in as much as the quantum

of amount claimed was not in accordance with

the notification issued by the concerned

authority. The person who raised the demand

had applied a wrong figure for the purpose of

calculation resulting in lower amount of claim,

which came to be realised at the time when

evidence of plaintiff was lead and hence, the

rectification was sought for.

22. The explanation to Section 20 of the Indian

Contract Act reproduced above indicates that an

erroneous opinion is not to be deemed a mistake

as to a matter of fact.

23. Applying the same to the present fact situation,

at the most, what can be said is that the mistake

committed when the demand was raised in the

year 2011 was an error committed or an

erroneous application of the notification when

the demand was raised.

24. The invocation of Section 17 of the Limitation Act

for the purposes of contending that the limitation

period has not commenced places a far higher

burden on the person invoking it than to merely

contend that there was an error committed. This

is more so for the reason that the word mistake

is found in the company of the word 'Fraud' and

"Conceal" which would indicate that a person

who intends to rely upon Section 17 of the

Limitation Act ought to have been defrauded or

ought to have been prevented from knowing the

true state of affairs.

25. I find support for my above reasoning in the

dictum laid down by the Hon'ble Apex Court in

the case of M/s. D. Cawasji & Co., it though

dealt with a situation as regards claim of tax,

there is an observation made in paragraph 7 that

relief on the ground of mistake, under Section

17(1)(c) of Limitation Act can be granted, if the

plaintiff were to establish that in a suit for relief

on the ground of mistake, the period of limitation

does not begin to run until the plaintiff

discovered the mistake or could with reasonable

diligence, have discovered it.

26. The operative portion, in my considered opinion

is "with reasonable diligence, have discovered

it". In the present case, it is not that the plaintiff

has discovered the mistake, it is that the plaintiff

did not realise the mistake though all the facts

relating to the raising of invoices was available

with the plaintiff and the plaintiff sought for

revision thereof only after leading of evidence.

27. That is to say, from the year 2011 to 2016, the

plaintiff who had all the facts in its possession

did not exercise any due diligence let alone

reasonable diligence to discover the so-called

mistake which is now claimed.

28. The decision of Gujarat High Court in the case of

Union of India vs. Bharat Vijay Mills reported

in 1984(3) ECC 1 which has been referred to by

learned counsel for the plaintiff was one which

was relating to mistake of law in as much as the

Gujarat High Court observed by referring to

M/s. D. Cawasji & co., case, that mistake of

law could not have been realised by a person

making demand of amount due under a

particular law until the said law was held to be

void or illegal to contend that demand was by

mistake of law. The said decision in my

considered opinion would not apply to the

present fact situation.

29. The decision in the case of Mahabir Kishore

and others is reiteration of the decision in M/s.

D Cawasji & Co., where again the aspect of

reasonable diligence has been mentioned.

Hence, the said decision would also not help the

plaintiff.

30. At paragraph 20 of the decision in the case of

Mangalore Ganesh Beedi Works, this Court

has clearly held that when the plaintiff was all

the time aware of the legal position as regards

its liability to pay the duty, the claim for refund

would not in such circumstances said to be a

claim based on mistake factual or otherwise.

Applying the said dicta to the present fact

situation, here the plaintiff was aware of the

factual aspect and therefore, it cannot said that

the plaintiff was under a mistake.

31. There can be no quarrel with the principles laid

down by the Apex Court in Rajesh Kumar

Agarwal or by Andhara Pradesh High Court

decision in Wahida Begum's case. No court

dealing with an application under Order 6 Rule

17 of CPC is required to decide whether the

amendment sought for is correct or false. In the

present case, we are not concerned with the

correctness or falsity of the amendment, we are

concerned with the claim of the plaintiff that that

the demand earlier raised was by mistake which

is now sought to be rectified which has been

dealt above.

32. The decision of the Apex Court in Revjithu's

case relied upon plaintiff based on certain

principles which are required to be taken into

consideration by a Court dealing with an

application under Order 6 Rule 17 of CPC. The

said decision did not consider the aspect of

Section 17 of the Limitation Act but was relating

to a general amendment. In the present case,

when the amendment is sought to be brought

under the purview and ambit of Section 17 of the

Limitation Act, it is but required for the applicant

to satisfy the requirements of Section 17 of the

Limitation Act.

33. I'am of the considered opinion that there is a

difference "in committing a mistake" and "being

under a mistake". An error committed by a

person which is committing a mistake would not

make the person being under a mistake, if the

said error could have been avoided by exercise

of due diligence.

34. I answer the above points as under:

34.1. Section 17 of the Limitation Act would not

apply if the mistake is that of the party

claiming for the benefit under Section 17 of

the Limitation Act.

34.2. If a fact could have been ascertained by

exercise of due diligence, it can not be said

to be a mistake if the same were not done.

34.3. An amount sought for in a demand notice

on which basis the suit has been filed can

not be sought to be amended or revised at

the stage of evidence of the plaintiff, more

so on account of an alleged mistake/error

committed by the plaintiff in making the

demand.

35. I am of the considered opinion that the plaintiff

had first issued a letter on 10.02.2011 followed

up with a Demand notice dated 14.10.2011,

received a reply from defendant on 26.11.2011,

sold the vessel of the plaintiff by way of auction

on 11.07.2013, after adjusting the amount

recovered through auction, raised a fresh

demand on 8.05.2014 and filed the suit on

15.12.2014.

36. The status and character of the plaintiff is also

relevant, the plaintiff-New Mangalore Port Trust

is not an individual or the entity which has no

knowledge or advise on the applicable law.

37. There have been invoices raised, demand notices

issued, wherein particular calculations have been

made in detail. It is on the basis of the said

demand notices that the plaint was filed,

objections in the form of written statement filed,

issues framed and parties went to trial.

38. The claim of the plaintiff is entirely based on the

documents available with the plaintiff itself. Thus

I am unable to accept the submission of the

learned counsel for the plaintiff that the earlier

demand raised was by way mistake which is now

sought to be rectified. The plaintiff who comes to

court ought to be diligent enough in raising a

claim in a proper and required manner. The

plaintiff cannot come to the Court making a

claim and thereafter at a later stage contend

that by its own mistake it had sought for lesser

amount and seek for a rectification thereof to

increase the amounts by way of amendment.

39. The mistake and/or error being solely on part of

the plaintiff on multiple occasions as detailed

above, i.e. when the demand notice 14.10.2011

was issued, when auction was conducted on

11.07.2013, when second demand notice dt.

8.05.2014 was issued and thereafter when the

suit was filed on 15.12.2014 by referring to all

documents including the claim on the basis of

the order of the Tariff Authority of major Ports.

40. I am unable to accept that there was any

mistake within the meaning of Section 17 of the

Limitation Act preventing the plaintiff from

making a correct claim. The plaintiff has also not

established any due diligence in this regard. In

view thereof, the limitation for such a claim

which began to run on 14.10.2011, came to an

end on 13.09.2014. The amendment sought for

on 9.09.2016 is well beyond the period of

limitation. The plaintiff by way of an amendment

cannot seek to relate back the amendment or a

claim for recovery of money to the date of filing

of the suit on the basis of the mistake in

calculation and therefore, I am of the considered

opinion that the trial Court ought to have

considered these aspects while dealing with the

said application. The trial Court having not

considered these aspects the said order of the

trial Court suffers from legal infirmities. Hence, I

pass the following

Order

i. Order dated 10.07.2017 passed by the trial

Court on application in I.A. No.4 in O.S.

No.196/2014 is set-aside.

ii. I.A. No.4 is consequently dismissed.

iii. The writ petition stands allowed.

iv. The observations made in the present order

is only with reference to the Order 6 Rule

17 of CPC. The trial Court to proceed with

the matter uninfluenced by any

observations.

Sd/-

JUDGE

Mv/ln