JUDGMENT
V.S. Aggarwal, J.
1. The Air India (hereinafter describe as the plaintiff) has filed the present suit pleading that the plaintiff is engaged in the business of carriage by air of passengers and cargo. The defendant (Shyam Antenna Electronics (P) Ltd.) through its agent Freight Wings Travels (P) Ltd on 12th January, 1991 booked with the plaintiff 11 packages of electronic goods vide the bill dated 12th January, 1991 for Moscow. The shipment consisting of the said packages of electronic goods was received by the cargo department of the plaintiff on 16th January, 1991. As per Government of India regulations consignments have to undergo cooling off period of 36 hours before they could be air lifted on the plaintiff’s flight, after the receipt of the consignment by the plaintiff. As per instructions of the defendant the shipment was transferred to the Aeroflot Airlines on 17th January, 1991 for transportation of shipment to Moscow. The defendant by its letter of 24th June, 1991 requested the plaintiff to bring the shipment back to Delhi. The defendant in its letter of 24th June, 1991 confirmed its liability to pay the freight and other charges. The plaintiff had sent a message to Moscow to return the said consignment. The Aeroflot debited storage and freight charges and tax from Moscow to Delhi. On arrival of the above named shipment back to Delhi notice was sent to the defendant on 31st July, 1991 with a demand for Rs. 9,72,140/- being the amount paid to the Aeroflot by the plaintiff. The plaintiff failed to make the payment. The plaintiff on 6.11.91, 9.12.91 and 13.12.91 requested and reminded the defendant to pay the aforesaid amount. Instead of paying the amount of defendant instituted a suit in this Court for a declaration that letter of the plaintiff dated 31st December, 1991 was illegal and void. During the pendency of the suit the Court directed the plaintiff to hand over the delivery against the airway bill to the defendant on defendant’s furnishing a bank guarantee equal to the value of the shipment. The goods were released. This court had directed the defendant to keep the bank guarantee alive. It is asserted that the defendant who was the plaintiff in that suit stopped appearing therein and on 19th July, 1994 the suit was dismissed in default. Plaintiff’s claimed the said amount which would due with interest.
2. In the written statement filed by the defendant preliminary objection has been taken that the suit is barred by time because it is asserted that according to the averments made the suit is for recovery of the freight charges besides certain another amounts. The cause of action as per the plaintiff has arisen on 31st July, 1991 and thus the limitation period has expired on 31st July, 1994. The suit having been filed on 8.10.96 is patently barred by time. It has also been asserted that the suit is bad for non-joinder of the necessary parties and that it is not property signed and verified. Certain pleas on merits have also been taken which are not relevant for the purposes of the present judgment.
3. In the replication filed it was admitted by the plaintiff that the defendant had filed the suit No. 559/92 as also alleged in the plaint and it is reiterated that during the pendency of the said suit the Court directed the plaintiff to hand over the delivery of the consignment to the defendant on his furnishing a bank guarantee to the tune of Rs. 1,09,750/-. It is the case of the plaintiff that defendant with mala fide intention had stopped appearing in that suit to frustrate and pre-empt adjudication of the counter claim of Rs. 9,72,140/-.
4. From the pleadings of the parties this Court on 28th April, 2002 had framed the issues but issue No. 2 was treated as a preliminary issue and it reads as under:-
“2. Whether the suit is within time?”
5. It is apparent from aforesaid and that was the contention of the defendant that cause of action had arisen to the plaintiff on 31st July, 1991 and, therefore, the period of limitation expired on 31st July, 1994. The suit having been filed much after that is barred by time. The plaintiff’s learned counsel countered the said argument by asserting that the defendant had challenged the demand letter of the plaintiff and was asked to furnish a bank guarantee. The time taken in prosecuting that suit, therefore, should be excluded. It was not disputed that the said suit was filed on 13th February, 1992 in this Court and dismissed on 19th July, 1994 for non-appearance of the defendant i.e. plaintiff in that suit. It is not in controversy that if the period spent on litigation in that suit is excluded the present suit would be within time.
6. Reliance on behalf of the plaintiff is being placed on sub-Section 1 to Section 14 of the Limitation Act which unfolds itself in the following words:-
“14. (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceedings relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.”
7. Perusal of Section 14 reveals that necessary conditions to be satisfied before invoking Section 14(1) both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) the prior proceedings had been prosecuted with due diligence and good faith; (3) the failure of the prior proceedings was due to defect of jurisdiction or other cause of like nature; (4) the earlier proceeding and the later proceeding must relate to the same matter in issue, and lastly (5) both the proceedings are in a Court.
8. In the present case the defendant’s preliminary objection was that in that suit the plaintiff who has been arrayed as a defendant cannot be taken to be prosecuting the suit because the plaintiff was defendant therein. Necessarily the one has to go into this controversy as to whether the plaintiff who was the defendant in the earlier suit could be taken to be prosecuting the said suit with due diligence or not. The facts can be repeated in few words that the defendant had filed the earlier suit challenging the letter of the plaintiff and plaintiff had contested the said suit.
9. The earliest decision known is in the case of Srimathi Nrityamoni Dassi and others v. Lakhan Chandra Sen AIR Privy Council 96. In the cited case the plaintiffs were defendants in a former suit. They associated themselves with the plaintiff in the former suit. They had asked for adjudication of their rights in that suit. The court referred them to another suit. It was held that limitation remains under suspense for a period of that suit. It is abundantly clear from the facts narrated above that the conclusions arrived at were obvious that they were bona fide litigating for their rights in a Court of justice and consequently the necessary period in that count had to be excluded. That indeed is not the controversy before us and the cited decision must be taken to be distinguishable because it was confined to its peculiar facts. The Lahore High Court in the case of Nazim Khan v. Alam Khan AIR 1919 Lahore 23 was also concerned with a similar situation. The facts in the case of Nazim Khan (supra) were that Nazim Khan had brought a complaint against Alam Khan under Section 406 Indian Penal Code. The complaint was dismissed and the complainant was referred to a civil suit on 28th September, 1915. Prior to that on 22nd September, the parties had referred their disputes to arbitration and on 23rd September, an award was given in favor of Alam Khan. On 3rd January, 1916 Nazim Khan brought a suit against Alam Khan for recovery of amount on the basis of a receipt which was held altogether ignoring the award. On 6th April, 1916 the Court disallowed the defendant’s objection and stated that if he wished to get the award carried into effect he should make an application to have it made a rule of Court. Alam Khan thereupon instituted the proceedings that the award should be filed in the Court. The first Court rejected the application holding that it was barred by time. Besides holding that plaintiff was not prosecuting the litigation with due diligence, it was further held that the extension of time could only be claimed by the plaintiff and not by the defendant.
10. In the case of Hiralal Kanhaiyalal v. Kripalsingh Sunder Singh AIR 1933 Nagpur 13 the same view was reiterated that in the earlier suit he was a defendant and was defending the suit.
11. A Division Bench of the Bombay High Court was concerned with the same question in the case of Narayan Jivaji Patil and another v. Gurunathgouda Khandappagouda Patil and another AIR 1939 Bombay 1. The Bombay High Court held that mere defending a suit is not and cannot amount to the prosecution of a suit. The terms ‘plaintiff’ and ‘defendant’ have a well known technical meaning. The Legislature must be deemed to be aware of that meaning when they chose to allow benefit of the time occupied by an earlier proceeding only to the plaintiff as against the defendant.
12. A Division Bench of the Travancore High Court in the case of Acha Kunja Vasu v. Krishna Kurup and another AIR 1954 TRA-CO 237 held that under certain circumstances a defendant can also be deemed to have been prosecuting that proceedings but where he has merely been resisting or defending a suit such resistance would not amount to prosecution of a proceeding. But where the defendant had put forward his own claim and sought a relief in that case it can be so held. The precise finding recorded in paragraph 5 which reads:-
“But it has to be stated that the question whether a party was really prosecuting a civil proceeding as contemplated by S.14 of the Limitation Act cannot always be determined merely on the basis of the position accepted by him in that proceeding. Under certain circumstances a defendant or a respondent in such a proceeding could also be deemed to have been prosecuting that proceeding. Where he has merely been resiting or defending a proceeding initiated by the plaintiff or the applicant it is clear that such resistance or defense would not amount to a prosecution of a proceeding. But where the defendant or respondent has put forward his own claims in such a proceeding and has sought reliefs in respect of such claims in the very same proceeding it can certainly be said that he has been prosecuting a civil proceeding.”
13. Another Division Bench from the Kerala High Court in the case of Parameswaran Kartha v. Edappally Valia Raja AIR 1959 Kerala 7 had approved and take a similar view as in the earlier decision in the case of Acha Kunju Vasu v. Krishna Kurup and another (supra).
14. After having referring to the precedents available one can conventionally draw the conclusion. Ordinarily a defendant who is merely defending a suit filed by the other party cannot be taken to be prosecuting the said suit. This is for the reason that he is merely defending the suit. Since the plaintiff and defendant have different prescribed meanings which are well known it is only the plaintiffs who prosecute the suit. However, in case where defendant sets up his own claim or claims and also prays for a relief thereto he will also be taken to be prosecuting the suit. One can conventionally add that if the defendant was not to get any relief and he was simply offering a defense he is not prosecuting a suit.
15. In the present case learned counsel for the plaintiff asserted that in the earlier suit the defendant in the present case was asked to furnish a bank guarantee. This fact is not in dispute but to avail of the benefit of section 14 of the Limitation Act it is necessary that he should have shown and established that he was prosecuting the said suit with due diligence. If the present defendant had been called upon to furnish a security it did not prevent the plaintiff in the present suit from filing the same. As a result the said argument must also be repelled.
16. Learned counsel for the plaintiff in that event had referred to the fact that in the earlier suit the amount claimed in the present suit had been mentioned and there could be no adjudication of the claim of Rs. 9,72,140/- claimed in the present suit. A reference has been made in the answer to preliminary objection of the written statement that there was a counter claim of the plaintiff. But the plaintiff feels shy of producing on the record any document to show that any such counter claim had been led by the plaintiff in that suit. If there was any such counter claim it had to be adjudicated. Perusal of the order passed in the earlier suit only reveals that suit of the defendant who was the plaintiff in the said suit was dismissed in default for non-prosecution. There is no order with respect to the counter claim. If there was a counter claim the plaintiff could ask for revival of the same in that very suit. But the available material clearly show that the plaintiff was merely defending that suit and cannot, therefore, be termed that he was prosecuting the same. There is nothing to show that he was claiming any independent relief. The said suit was simply challenging a letter of the plaintiff and was in no way barred the plaintiff to file the present suit. It appears that the plaintiff ignored the relief claimed and fell into an error because of the filing of the suit by the defendant. Be that as it may the law will have its course and the Court have no option but to hold that the strict provisions of Section 14 of the Limitation Act will not come into the rescue of the plaintiff. Issue must be decided against the plaintiff.
17. For these reasons suit of the plaintiff is dismissed to be barred by time. Parties are left to bear their own costs.