Drafting Pleading Conveyance 6w3sj

RESEARCH PROJECT ON

“DELAY/LACHES/LIMITATIONS”

SUBMITTED TO: Prof. ANIL UPADHYAY (DRAFTING, PLEADING AND CONVEYANCING) SUBMITTED BY: malvika singh Roll No.336

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TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................................... 2 RESEARCH METHODOLOGY ............................................................................................ 3 I.

Introduction .......................................................................................................... 5

II. DOCTRINE OF LACHES .............................................................................................. 6 III. Doctrine of Estoppels ........................................................................................ 7 IV. Major types .......................................................................................................... 8 V. Elements of Laches ............................................................................................. 9 VI. Laches and Acquiescence ................................................................................ 12 VII. LAW OF LIMITATION ............................................................................................... 14 VIII.BAR OF LIMITATION ............................................................................................... 17 IX. Judicial Actions ................................................................................................. 18 X. CONCLUSION……………………………………………..………………………………………………………20 BIBLIOGRAPHY ............................................................................................................. 21

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RESEARCH METHODOLOGY

THIS PROJECT IS BASED MAINLY AND HEAVILY ON WRITTEN TEXT MATERIAL, CASE LAWS AND LEGISLATIONS. IT IS BASED ON THE DOCTRINAL METHOD OF RESEARCH. IT IS THE VIEW EXPRESSED BY DIFFERENT PERSONS, PARTIES AND ASSOCIATIONS. THE SEGMENTS ARE STRUCTURED AND WRITTEN ACTIVELY. THE WRITING STYLE IS DESCRIPTIVE AND ANALYTICAL. THE PROJECT HAS BEEN DONE AFTER A THOROUGH RESEARCH BASED UPON INTRINSIC AND EXTRINSIC ASPECT OF THE ASSIGNED TOPIC. THE LIMITATION OF MY PROJECT IS THAT MY TOPIC BEING A VERY WIDE ONE, I MAY HAVE MISSED UPON CERTAIN ISSUES WHICH I CERTAINLY REGRET ABOUT.

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ACKNOWLEDGEMENT THE RESEARCH ON “DELAY/LACHES/LIMITATIONS” IS A PART OF DRAFTING, PLEADING AND CONVEYANCING SEMESTER ASSIGNMENT. I AM GRATEFUL TO THE SUBJECT FACULTY, PROF. ANIL UPADHYAY, FOR DEPUTING ME TO RESEARCH UNDER HIS GUIDANCE. MY HUMBLE REGARDS TO THE AUTHORS WHOSE WORK HAS BEEN REFERRED AND IS MENTIONED IN THE BIBLIOGRAPHY. THIS ASSIGNMENT IS A COMPILATION OF HISTORICAL TO CONTEMPORARY EMERGENCE ON THE SUBJECT AREA OF RESEARCH I.E“DELAY/LACHES/LIMITATIONS”

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I.

Introduction

Laches 1 is an ―unreasonable delay pursuing a right or claim.‖ In a way that prejudices the [opposing] party. When asserted in litigation, it is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has ―slept on its rights,‖ and that, as a result of this delay, circumstances have changed such that it is no longer just to grant the plaintiff‘s original claim. Put another way, failure to assert one‘s rights in a timely manner can result in a claim‘s being barred by laches. Laches is a form of estoppel for delay. In Latin, The French Philosophers ones said in the way of defining Laches as being: “Vigilantibus non dormientibus æquitas subvenit.” Equity aids the vigilant, not the sleeping ones (that is, those who sleep on their rights. A successful defense of laches will find the court denying the request for equitable relief. However, even if equitable relief is not available, the party may still have an action at law if the statute of limitations has not run out.

Under the United States Federal Rules of Civil Procedure, laches is an affirmative defense, which means that the burden of asserting laches is on the party responding to the claim to which it applies. ―When the defense of laches is clear on the face of the complaint, and where it is clear that the plaintiff can prove no set of facts to avoid the insuperable bar, a court may consider the defense on a motion to dismiss.‖ 2

1

Edited by, Bryan A. Garner, “Black’s Law Dictionary”, 8th Edition, 2004, Thomson West Publishers.

2

Solow v. Nine West Group, 2001 WL 736794, *3 (S.D.N.Y. June 29, 2001); Simons v. United States, 452 F.2d 1110, 1116 (2d Cir. 1971) (affirming Rule 12(b)(6) dismissal based, in part, on laches where papers “reveal no reason for the inordinate and prejudicial delay”)

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II.

DOCTRINE OF LACHES

―Doctrine of laches‖ is based upon maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to adverse party, operates as bar in court of equity.3 The neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done.

In most contexts, an essential element of laches is the requirement that the party invoking the doctrine has changed its position as a result of the delay. In other words, the defendant is in a worse position now than at the time the claim should have been brought. For example, the delay in asserting the claim may have caused a great increase in the potential damages to be awarded, or assets that could earlier have been used to satisfy the claim may have been distributed in the meantime, or the property in question may already have been sold, or evidence or testimony may no longer be available to defend against the claim.

A defense lawyer raising the defense of laches against a motion for injunctive relief (a form of equitable relief) might argue that the plaintiff comes ―waltzing in at the eleventh hour‖ when it is now too late to grant the relief sought, at least not without causing great harm that the plaintiff could have avoided. In certain types of cases (for example, cases involving time-sensitive matters, such as elections), a delay of even a few days is likely to be met with a defense of laches, even where the applicable statute of limitations might allow the type of action to be commenced within a much longer time period.

3

. Wooded Shores Property Owners Ass’n Inc. v. Mathews, 37 Ill. App.3d 334, 345 N.E.2d. 186, 189.

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III.

Doctrine of Estoppels

Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude ―a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied.‖

This term appears to come from the Old French estoupail (or variation), which meant ―stopper plug‖, referring to placing a halt on the imbalance of the situation. The term is related to the verb ―estop‖ which comes from the Old French term estopper, meaning ―stop up, impede.‖

Where a court finds that a party has done something warranting a form of estoppel, that party is said to be ―estopped‖ from making certain related arguments or claiming certain related rights. The defendant is said to be ―estopped‖ from presenting the related defence, or the plaintiff is said to be ―estopped‖ from making the related argument against the defendant. Lord Coke stated, ―It is called an estoppel or conclusion, because a man‘s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth.

Because estoppel is so factually dependent, it is perhaps best understood by considering specific examples.

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IV.

Major types

The main species of estoppel under English, Australian, and American laws are:

1. Reliance-based estoppels—these involve one party relying on something the other party has done or said. The party who performed/spoke is the one who is estopped. Under English law, this class includes estoppels by representation of fact, promissory estoppel and proprietary estoppel4. Although some authorities have used language to suggest reliance-based estoppels are mere rules of evidence, they are rules of substantive law. Estoppel by representation of fact (English law name), equitable estoppel (American law) 2. Equitable estoppel (in English law) 3. Proprietary estoppels 4. Promissory estoppels. 5. Estoppel by record—This frequently arises as issue/cause of action estoppel or judicial estoppel where the orders or judgments made in previous legal proceedings prevent the parties from relitigating the same issues or causes of action, 6. Estoppel by deed (often regarded as technical or formal estoppels)—Where rules of evidence prevent a litigant from denying the truth of what was said or done 7. Estoppel by silence—Estoppel that prevents a person from asserting something when he had the right and opportunity to do so earlier, and such silence put another person at a disadvantage. 8. Laches—estoppels in equity by delay. Laches has been considered both a reliance-based estoppel, and a sui generis estoppels.

4

(See Halsbury’s Laws of England, Vol 16(2), 2003)

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V.

Elements of Laches

1. Unreasonable lapse of time.

2. Neglect to assert a right or claim.

3. To the detriment of another.

If these three elements are met, then the Doctrine of Laches will act as a bar in court.If an adverse party unreasonably delays informing you of a right or claim and this results in permanent damage to your ability to defend your self then such a claim may be barred from court. 1. Unreasonable lapse of time:A defense to an equitable action that bars recovery by the plaintiff because of the plaintiff‘s undue delay in seeking relief. Laches is a defense to a proceeding in which a plaintiff seeks equitable relief. Cases in Equity are distinguished from cases at law by the type of remedy, or judicial relief, sought by the plaintiff. Generally, law cases involve a problem that can be solved by the payment of monetary damages. Equity cases involve remedies directed by the court against a party. Types of equitable relief include Injunction, where the court orders a party to do or not to do something; declaratory relief, where the court declares the rights of the two parties to a controversy; and ing, where the court orders a detailed written statement of money owed, paid, and held. Courts have complete discretion in equity, and weigh equitable principles against the facts of the case to determine whether relief is warranted. The rules of equity are built on a series of legal maxims, which serve as broad statements of principle, the truth and reasonableness of which are self-evident. The basis of equity is contained in the Maxim ―Equity will not suffer an injustice.‖ Other maxims present reasons for not granting equitable relief. Laches is one such defense. 9|Page

2. Neglect to assert a right or claim:-

A neglect to assert a right or claim may operate as a right to waiver. A waiver is the voluntary relinquishment or surrender of some known right or privilege. While a waiver is often in writing, sometimes a person‘s actions can act as a waiver. An example of a written waiver is a disclaimer, which becomes a waiver when accepted. Other names for waivers are exculpatory clauses, releases, or hold harmless clauses. Sometimes the elements of ―voluntary‖ and ―known‖ are established by a legal fiction. In this case, one is presumed to know one‘s rights and that those rights are voluntarily relinquished if not asserted at the time. In civil procedure, certain arguments must be raised in the first objection that a party submits to the court, or else they will be deemed waived. The following represent a general overview of considerations; specifics may vary dramatically depending on the jurisdiction. Key factors that some courts (depending on jurisdiction) may look at when determining the applicability of a waiver: • In some jurisdictions, one may not prospectively waive liability for some or all intentional activities. • Waivers generally must be made voluntarily and with the full knowledge (or the ability to know) of the right being waived. • The waiver should be unambiguous and clear to a reasonable person. • In some jurisdictions (not including the United States), it may be necessary that the parties to the waiver have equal bargaining power. • A waiver may have limited application where one contracts for an ―essential service‖ such that it may violate public policy for liability to be waived. • In the case of Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee5, the United States Supreme Court decided that when a court orders a party to produce proof on a certain point, and that party refuses to comply with the court‘s order, the court may deem that refusal to

5

, 456 U.S. 694 (1982)

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be a waiver of the right to contest that point and assume that the proof would show whatever the opposing party claims that it would.

• In that court case, the defendant had argued that the court lacked personal jurisdiction over it but refused a court order to produce evidence of this lack of jurisdiction. The defendant argued the circular logic that, because the court lacked jurisdiction, the court had no authority to issue an order to show proof of the lack of jurisdiction. The Supreme Court rejected that argument and determined that the defendant‘s refusal to comply waived the right to contest jurisdiction, just as if it had never contested jurisdiction at all.

3. To the detriment of another:-

In the happening of an event when the disadvantage of the party allows the other party to not to assert the right or the claim within the reasonable time happens to be an element of laches.In the event of causing loss of marriage of the defendant the petitioner may not present the original photographs of the marriage so that the marriage is held null and void. And if the petitioner comes to know about the same after the lapse of reasonable time it might be the case of laches and the court may may presume the same.

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VI.

Laches and Acquiescence

Acquiescence, consenting by remaining silent, relates to the failure in objecting to the use of the label and to the registration of the label as a trademark while laches is the undue delay in asserting a right or bringing a suit or complaint which may be used as a defense if loss or prejudice is proved to have been caused by the plaintiff‘s delay. Acquiescence implies positive acts, a course of conduct inconsistent with the claim for exclusive right. The Supreme Court in Midas Hygiene Industries (P) Ltd. and Anr. v. Sudhir Bhatia 6 held that in cases of infringement of a trademark or a copyright, it is well settled that normally an injunction must follow. It was observed that mere delay in bringing an action is not sufficient to defeat the grant of an injunction in such cases. The grant of an injunction also becomes necessary if it prima facie appears that the adoption of the infringed trademark was dishonest.

In Swaran Singh Trading as Appliances Emporium v. M/s Usha Industries (India) New Delhi7, this Court held that registration of a trademark gives an exclusive right of use to the proprietor of the ed trademark with the condition that if there is a prior to the date of registration, then that may continue, the effect of which is that even if there is some delay in enforcing the statutory right, the exclusive right of cannot be lost. The principles governing other types of injunctions are not to be readily applied to the infringement of a trademark. It is the duty of the Court to protect a ed trademark because in such a case the public is deceived into purchasing the defendant‘s goods on the belief that they are the plaintiff‘s goods. An injunction cannot be refused even if there is some delay in such a case because that would tantamount to permitting a fraud being practiced on unwary customers. It was further held that a delay in the matter of seeking an injunction may be a ground for refusing it in certain circumstances but a statutory right cannot be lost by delay. The defence of laches or inordinate delay is a defence in equity. If there is honest concurrent use by the defendant, then inordinate

6 7

((2004) 3 SCC 90) (AIR 1986 Delhi 343)

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delay and laches may defeat the claim of damages or rendition of but the relief of injunction should not be refused keeping in mind the interest of the general public.8

The defendants had filed another suit which alleged that as the plaintiff did not use the trademark ‗Fedders‘ for a period of more than 5 years, it be removed from the , which was dismissed by the learned Single Judge and also in appeal on the ground that the plaintiff ably satisfied the court that non-use of the trademark was due to special circumstances in the trade.

8

M/s Hindustan Pencils Pvt. Ltd. v. M/s India Stationery Products Co. and Ors., AIR 1990 Delhi 19.

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VII.

LAW OF LIMITATION

The Code of Civil Procedure confers a right to appeal, but does not prescribe a period of limitation for filing an appeal. The Limitation Act, 1963, however, provides the period of filing up appeals. It states that the appeals against a decree or order can be filed in a High Court within ninety days and in any other court in thirty days from the date of the decree or order appealed against. It is, therefore, provided that Courts of Law cannot be approached beyond fixed period. In civil matters, the limit is provided in Limitation Act, 1963. The 'Law of Limitation' prescribes the time-limit for different suits within, which an aggrieved person can approach the court for redress or justice. The suit, if filed after the exploration of time-limit, is struck by the law of limitation. It's basically meant to protect the long and established and to indirectly punish persons who go into a long slumber over their rights.9

The statutory law was established in stages. The very first Limitation Act was enacted for all courts in India in 1859. And finally took the form of Limitation Act in 1963. A citizen is not expected to master the various provisions which provide for limitation in different matters but certain basic knowledge in this regard is necessary. For instance, Section 12 of the Limitation Act lays down certain guidelines regarding computation of limitation period. It says that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Further, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from shall be excluded. However, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.

Section 14 of the act, similarly, says that in computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting in civil proceedings, whether in a court of first instance or of appeal or revision against the defendant shall be excluded where the

9

Justice S A Kader’s Law of Limitation and Prescription , 13 th edition , 2011 , Lexis Nexis.

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proceedings relate to the same matter in a court which is unable to entertain it on of defect of jurisdiction or other cause of a like nature.

What does limitation period mean? The law prescribes different periods within which a person who has a grievance should go to court. For example, if somebody has borrowed your money and not returned it, you should approach the court within three years from the date you lent the money. If you don't go to the court within that time, the courts will not be of help to recover your money. This is called the limitation period. After the limitation period, you cannot enforce your rights in a court. The Limitation Act 1963prescribes different limitation periods for different kinds of claims. Some other Acts such as the Consumer Protection Act also prescribe limitation periods

In the bare act:Bar of limitation (1) Subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as defense; (1) For the purposes of this Act, (a) A suit is instituted, (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue is a pauper is made; and (ii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set-off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted(i) in the case of a set-off, on the dame date as the suit in which the set off is pleaded; 15 | P a g e

(ii) in the case a counter claim, on the date on which the counter claim is made in court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court. Short title, extent and commencement - (1) This Act may be called the Limitation Act,1963. 2. It extends to the whole of India except the State of Jammu and Kashmir. 3. It shall come into force on such date as the Central Government may be notification in the Official Gazette, appoint.

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VIII.

BAR OF LIMITATION

Subject to provisions of sections 4 to 24 of the Act (i.e. Limitation Act),every suit instituted, appeal preferred and application made after the ‗prescribed period‘ shall be dismissed, although limitation has not been set up as a defence. [section 3(1)]. - - ‗Period of limitation‘ means the period of limitation prescribed for any suit, appeal or application by the schedule to the Act and ‗prescribed period‘ means the period of limitation computed as per provisions of the Act. [section 2(j)].

PERIOD AS PRESCRIBED IN SCHEDULE TO THE ACT – The period has been prescribed in Schedule to the Act. Generally, it is as follows – (a) 3 years for a suit relating to s, contracts, declarations, decrees, suits relating to movable property, recovery of law suit under a contract etc. (b) 12 years for suits relating to possession of immovable property and 30 years for mortgaged property (c) One year for suit relating to torts (3 years for compensation in certain cases (d) 30 to 90 days in case of appeals under Civil Procedure Code and Criminal Procedure Code. - - Period of filing appeal and application can be extended if proper cause is shown (but not the suit) [section 5].10

IF COURT IS CLOSED ON LAST DAY – If court is closed on last day of limitation, suit, appeal or application can be filed on next day when Court reopens. [section 4].

CONTINUOUS RUNNING OF TIME – When once period of limitation starts running, it continues even if there is any subsequent disability or inability to institute a suit or make an application. [section 9]. - - However, if at the time when person is entitled to file a suit or make application, if a person was disabled (as he was minor or insane), the period of limitation will start after the disability is removed. [section 6(1)]. 10

Justice S A Kader’s Law of Limitation and Prescription , 13 th edition , 2011 , Lexis Nexis

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IX.

Judicial Actions

Raj Bahadur Singh & Another v. D.J. & Others11 According to the learned Judge the application had been rejected on two grounds firstly being barred by limitation and secondly being without any valid ground. Thus, the appeal filed by the respondents was fully maintainable. He further submitted that the learned District Judge vide order dated11.2.2002 had itted the appeal while over ruling the preliminary objections and the writ petition filed by the petitioners is not maintainable. In the present case the question is as to whether an appeal lies against an order ed by the trial Court wherein it had by a common order rejected both the applications under section 5 of the Limitation Act and Order9 Rule 13 C.P.C. on the ground that the application is barred by Limitation and no ground for condonation of delay has been made out, or a revision lies. If it is held that no appeal lies then the order itting the appeal is wholly without jurisdiction and in such a circumstance a writ petition is maintainable.

Arun Kumar v S E Railways: Appeal has been made in regard to representation against the seniority list to the istration in 1967 which was replied in 1973. The Supreme Court of India held that there is no inordinate delay in filing the petition in view of the fact that the railway istration was itself guilty of delay. Mohd Ismail v State of Karnataka: Karnataka High Court ignored a four year delay in view of serious adverse consequences to the petitioner. M S Mudol (Dr) v S D Halegkar, Supreme Court held that the challenge of appointment of principal on grounds of not fulfillment of the required qualification after nine years of appointment was not allowed. 11

Civil Misc.Writ Petition No.12718 of 2002

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Ramachandra Shanker Deodhar v State of Maharashtra: A case of seniority between two groups of Government employees arose. The Cause of Action arose in 1968 but the writ petition under Article 226 was claimed under violation of Fundamental Rights. The court has been assigned the role of a sentinel on the qui vive for protection of fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like. Jawahar Lal Sazawal v State of J & K: A writ petition filed before High Court in 1982 and coming for hearing after 16 years long gap is not barred by laches due to special circumstances.

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X.

CONCLUSION

In most contexts, an essential element of laches is the requirement that the party invoking the doctrine has changed its position as a result of the delay. In other words, the defendant is in a worse position now than at the time the claim should have been brought. For example, the delay in asserting the claim may have caused a great increase in the potential damages to be awarded, or assets that could earlier have been used to satisfy the claim may have been distributed in the meantime, or the property in question may already have been sold, or evidence or testimony may no longer be available to defend against the claim. A defense lawyer raising the defense of laches against a motion for injunctive relief (a form of equitable relief) might argue that the plaintiff comes "waltzing in at the eleventh hour" when it is now too late to grant the relief sought, at least not without causing great harm that the plaintiff could have avoided. In certain types of cases (for example, cases involving time-sensitive matters, such as elections), a delay of even a few days is likely to be met with a defense of laches, even where the applicable statute of limitations might allow the type of action to be commenced within a much longer time period.12 A successful defense of laches will find the court denying the request for equitable relief. However, even if equitable relief is not available, the party may still have an action at law if the statute of limitations has not run out.

12

Justice S A Kader’s Law of Limitation and Prescription , 13 th edition , 2011 , Lexis Nexis

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BIBLIOGRAPHY

1. JUSTICE S A KADEr’S LAW OF LIMITATION AND PrESCrIPTION , 13th edition , 2011 , Lexis Nexis 2. EDITED bY, brYAN A. GArNEr, “bLACK’S LAW DICTIONArY”, 8th Edition, 2004, Thomson West Publishers. 3. JUSTICE C.K. THAKKEr’S , “CIVIL PrOCEDUrE CODE” , 5th Edition , 2011, Eastern Book Company. 4. INDIAN LIMITATION ACT, 1963 5. Civil Procedure code, 1908. 6. Specific relief act, 1963

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