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Rajamani v. Meenakshisundaram

Madras High Court

Aug 18, 1999

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The defendant (now the appellant) was subject to a decree in the courts below and has filed this second appeal. According to the plaint and the findings of the courts below, the appellant/defendant borrowed 2,000 Singapore dollars from one R.S. Sundaram at Singapore and executed a promissory note (referred to as Ex.A5). The opinion records that the borrowing was said to have occurred on 9.11.1975 (para. 2). At one point in the opinion the promissory note is also described as having been executed "as early as on 9.11.1973" (para. 7); both dates appear in the text of the opinion.

Sundaram is said to have initiated proceedings in the District and Magistrate Court, Singapore (DC Summons 1980 of 1975) but those proceedings were "struck off" (para. 2). On 3.7.1979 the promissory note was assigned in favour of the plaintiff (Ex.A1), the plaintiff issued notice of assignment on 11.7.1979, and the plaintiff subsequently filed suit in India for recovery of a sum (the plaint describes various court file numbers: O.S. No. 8 of 1980, later re-transferred and numbered O.S. No. 37 of 1984). At another place the opinion records the suit filing date as 29.10.1979 (para. 7).

The defendant filed a written statement denying the borrowing, challenging consideration and the validity/enforceability of the assignment (arguing it was barred by limitation), and contested applicability of Section 15(5) of the Indian Limitation Act (paras. 2–3). The trial Court decreed the suit; the first appellate Court (A.S. No. 19 of 1987) confirmed that decree. The defendant appealed again by filing the present second appeal. The courts below had found (inter alia) that the assignment was valid, the suit was maintainable, and that Section 15(5) of the Indian Limitation Act rendered the suit within time (para. 5).

Legal Issues Presented

Whether the plaintiff can take advantage of Section 15(5) of the Indian Limitation Act to exclude from computation the time during which the defendant was absent from India, thereby rendering the suit within the period of limitation (paras. 6–7).
Whether the plaintiff's cause of action, arising from a promissory note executed abroad (in Singapore), can be the basis of a suit in India on the ground of the defendant's permanent residence in India (paras. 10–13).
Whether the plaintiff is estopped from prosecuting the present suit due to prior proceedings initiated by Sundaram in Singapore (para. 6).

Arguments of the Parties

Appellant / Defendant's Arguments

The defendant denied borrowing the 2,000 Singapore dollars from R.S. Sundaram and thus challenged the promissory note as unsupported by consideration (para. 3).
The defendant argued the assignment (at the time of assignment, 3.7.1979) was barred by limitation and therefore the note could not be assigned or enforced; Section 15(5) of the Indian Limitation Act was said not to be applicable to this case (para. 3).
The defendant contended the plaintiff is estopped from filing the present suit in view of proceedings taken by Sundaram in Singapore to enforce the promissory note (para. 6).

Respondent / Plaintiff's Arguments

The plaintiff pleaded that Sundaram had initiated DC Summons 1980 of 1975 against the defendant in the District and Magistrate Court, Singapore, but that those proceedings were "struck off" and that there was no bar to filing a fresh suit in India (para. 6).
The plaintiff relied on an assignment dated 3.7.1979 (Ex.A1) and notice dated 11.7.1979; the plaint alleged the defendant continued to reside in Singapore but that his permanent place of residence was Ariyakudi, within the jurisdiction of the District Munsif Court, Devakottai (para. 2 and para. 8).
The plaintiff asserted that, by operation of Section 15(5) of the Indian Limitation Act (read with Section 11), time during the defendant's absence from India should be excluded in computing limitation, so the suit was within time (para. 2 and para. 7).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Muthukannai Mudaliar v. Andappa Pillai, 1954 (II) M.L.J. 731	The Full Bench's summary: (1) A suit for personal relief may be instituted in a court within whose local limits the defendant is residing or carrying on business at the date of institution, wherever the cause of action arose; (2) The statute of limitation of the forum (lex fori) applies in such a suit (para. 12–13).	The court relied on this Full Bench decision to hold that a cause of action arising abroad does not preclude a suit in India if the defendant is resident or present in India at the commencement of the action (paras. 11–13) and used its principles in analyzing jurisdiction and limitation issues.
Muthu Chettiar v. Shanmugham, A.I.R. 1969 S.C. 552	Approval by the Supreme Court of the Full Bench view that the lex fori governs limitation where the defendant is present/resident in the forum (para. 12).	Noted as approving the Full Bench view; used to support the proposition that the law of the forum governs limitation questions (para. 12).
T.M. & Co. v. H.L. Trust Ltd., AIR 1972 S.C. 1311	Holds that Section 15(5) presupposes that the defendant was at one time present in India and later absent; a person who was never in India cannot be considered as having been absent from India (para. 17).	The court relied on this Supreme Court authority to conclude that Section 15(5) cannot be invoked where the defendant was never present in India; this supported the conclusion that Section 15(5) did not assist the plaintiff in the present facts (para. 17–18).
Mahomed Museeh-Ood-Deen v. Clara Tone Museeh-Ood-Deen, 1870 (2) N.W.P.H.C.R. 173	Used as authority to support the legislative intention that absence from India may preserve or revive remedies in certain circumstances, even if that result may be inconvenient (para. 13).	The court cited this case to illustrate and support the interpretation of Section 15(5) as permitting exclusion of absence time and to explain legislative intent, while recognizing potentially inconvenient consequences (para. 13).
Atul Kristo Bose v. Lyon & Co., 1887 I.L.R. 14 Cal. 457	Interpretation of the scope of the word "absent" in the context of computing limitation — the section directs the mode of computing time and should not be narrowly restricted to particular expectations of return (para. 14–16).	The court relied on the reasoning in this case to show that the word "absent" should not be narrowly defined and that the statute's words are to be taken as expressed; the opinion discusses the case's rejection of attempts to restrict "absent" to only those expected to return (para. 14–16).
Williams v. Jones, 13 East. 439 (cited in argument in Atul Kristo Bose)	Illustrative authority used in the discussion of cross-jurisdictional limitation consequences (para. 16).	Referred to in the opinion's discussion of possible unfair consequences under certain constructions of absence; used as part of the historical reasoning but not as the decisive basis for the court's final holding (para. 16).

Court's Reasoning and Analysis

The opinion proceeds in two main strands of analysis: (A) the estoppel/assignment issue and (B) the limitation/Section 15(5) issue.

(A) Estoppel and Assignment

The appellant argued that because Sundaram had earlier pursued proceedings in Singapore to enforce the promissory note, the plaintiff is estopped from prosecuting the present suit. The plaint had admitted that Sundaram filed DC Summons 1980 of 1975 in Singapore but that such proceedings were struck off (para. 6).
The courts below had examined the evidence (Exs. A15 and others) and found factually that the plaintiff was not barred from prosecuting the suit. The present appellate court declined to disturb those concurrent factual findings in the absence of other material warranting a different conclusion (para. 6).

(B) Limitation and Section 15(5)

The court emphasized that the law of limitation is a procedural statute governed by the lex fori — the law of the forum in which the suit is brought — and not the law of the place where the cause of action arose (para. 10).
The Full Bench decision in Muthukannai Mudaliar v. Andappa Pillai (approved by the Supreme Court in Muthu Chettiar v. Shanmugham and followed in T.M. & Co.) was invoked to show that a suit may be brought in India based on the defendant's residence/presence here, even if the cause of action arose abroad; but the protection of Section 15(5) must be read in context (paras. 11–13).
The court then examined the text of Section 15(5) (quoted at para. 9) and considered precedent interpreting the term "absent." The Calcutta Full Bench in Atul Kristo Bose was cited for the view that "absent" should not be artificially or narrowly restricted when computing exclusion time (paras. 14–16).
However, relying on T.M. & Co. v. H.L. Trust Ltd., the court accepted the principle that Section 15(5) presupposes that the defendant was at one time present in India and subsequently absent; a person who was never in India cannot be considered to have been "absent" from India for the purposes of that provision (para. 17).
Applying the law to the facts as pleaded in the plaint, the court noted the plaintiff himself had given a Singapore address for the defendant and the defendant was, according to the plaintiff, resident in Singapore on the date of filing (paras. 7, 8, 17). The court concluded that the plaintiff could not invoke Section 15(5) to exclude time for limitation because the prerequisite that the defendant have been present in India at an earlier time was not satisfied on the pleaded facts (para. 18).
On that basis the court held Section 15(5) did not assist the plaintiff and therefore the suit could not be sustained as within time under that provision (para. 18).

Holding and Implications

Holding: The court allowed the second appeal and set aside the judgments and decrees of the Courts below (para. 17). DISPOSITION: The second appeal is allowed; the decrees of the trial and first appellate courts are set aside; no costs were awarded (para. 17).

Implications:

Direct effect on the parties: The plaintiff cannot rely on Section 15(5) of the Limitation Act to bring the suit within time on the facts as pleaded (because the defendant was not shown to have been at one time present in India), and accordingly the judgments and decrees in favour of the plaintiff have been set aside (paras. 17–18).
The opinion applies and follows existing precedents on the lex fori rule for limitation and on the interpretation of "absence" under Section 15(5); the court did not purport to lay down a novel principle or to overrule the cited authorities. The decision is a fact-specific application of settled authority (paras. 10–18).

Note: This summary strictly reflects the facts, arguments, authorities, reasoning and result as they appear in the provided opinion. No information has been added beyond the text of the opinion.

Show all summary ...

1. The defendant who suffered a decree before the Court below has filed the above second appeal.

2. The appellant/defendant borrowed 2000 Singapore dollars from one R.S Sundaram at Singapore on 9.11.1975 promising to repay the same on demand to him or to his order with interest at 18% per annum and executed a promissory note therefor under Ex.A5 The said Sundaram filed a case before the District and Magistrate Court, Singapore against the defendant but it was struck off. According to the plaintiff/respondent, the defendant continues to reside in Singapore and on 3.7.1979, under Ex.A1 the said promissory note was assigned in favour of the plaintiff, and the plaintiff issued a notice on 11.7.1979 intimating the said assignment in his favour and demanding the payment of the entire dues to him, from the defendant. Since the amount was not paid, the plaintiff filed the suit in O.S No. 8 of 1980 on the file of the Sub-Court, Devakottai, which was re-transferred to the District Munsif Court, Devakottai and numbered as O.S No. 37 of 1984, for recovery of the sum of Rs. 13,885.75 with subsequent interest on the principal sum of Rs. 6,700. It is stated in the plaint that since the defendant has been and is absent from India, the whole of the period has to be excluded in computing limitation as provided for in Section 15(5) of the Indian Limitation Act read with Section 11 thereof with the result that the suit instituted is well within time. It is also stated that Ariyakudi is the permanent place of residence of the defendant, which is situated within the limits of the jurisdiction of District Munsif Court, Devakottai in which the suit was filed.

3. The appellant/defendant contested the suit by filing written statement. The defendant denied the said borrowing of 2000 dollars from one R.S Sundaram at Singapore and so the suit document was not supported by consideration. It is also stated by the appellant that the benefits given under the Tamil Nadu Act 4 of 1938 or Act 40 of 1979, and at the time of the assignment of the said promissory note dated 3.7.1979, it was barred by limitation and so the same could not be assigned and could not be enforced. According to the defendant. Section 15(5) of the Indian Limitation Act is not applicable to the facts of this case.

4. The trial Court, after considering the oral and documentary evidence, decreed the suit. On Appeal by the defendant in A.S No. 19 of 1987 on the file of the Sub-Court, Devakottai, the lower appellate Court confirmed the judgment and decree of the lower Court and dismissed the appeal. Hence, the defendant has filed the above second appeal.

5. Both the Courts below have found that the appellant/defendant has borrowed the said 2000 Singapore dollars from the said Sundaram, that the assignment was valid, that the suit is maintainable in law, and that in view of Section 15(5) of the Indian Limitation Act, the suit is filed well within the period of limitation.

6. The learned counsel appearing for the appellant/defendant has submitted that in view of the proceedings taken by the said Sundaram in Singapore to enforce the said promissory note the respondent/plaintiff is estopped from filing the present suit. In the plaint, the plaintiff has come forward with the specific plea that the said Sundaram filed DC Summons 1980 of 1975 against the defendant in the District and Magistrate Court, Singapore, but it is struck off. Quoting certain provisions, it is stated that there is no bar to file fresh suit. When the plaintiff has come forward with such specific plea, the defendant has not established that the said suit was dismissed on merits, and so the said Sundaram cannot assign the said promissory note in favour of the plaintiff so as to enable the plaintiff to file the present suit. The Courts below have factually found on the basis of Exs.A15 and A 15 that the plaintiff is not barred from prosecuting the suit. In view of the said concurrent findings and also in the absence of any other material to come to a different conclusion, I am not interfering with the said findings.

7. The next question to be decided in the present appeal is, can the plaintiff take advantage of Section 15(5) of the Indian Limitation Act so as to enable him to file the suit against the defendant. In this case, the suit promissory note Ex.A5 was executed as early as on 9.11.1973 and it was assigned under Ex.A1 dated 3.7.1979 The suit was filed on 29.10.1979 Admittedly, the suit can be sustained only if the protection given under Section 15(5) of the Limitation Act applies to this case.

8. According to the plaintiff, the defendant is residing in Singapore and continues to reside in Singapore, but his permanent place of residence is Ariyakudi which lies within the jurisdiction of the District Munsif Court, Devakottai. On the basis of this background, the abovesaid question has to be answered.

9. Section 15(5) of the Limitation Act reads as follows:

“15(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 Central Government shall be excluded.”

10. Wherever the cause of action might have arisen or wherever the contract has been made in respect of an act, the Courts in a country have jurisdiction to entertain action in personam provided that at the commencement of the action, the defendant was resident or present in that country. There cannot be any doubt that the law of the country in which the proceedings have been taken will apply to such proceedings. Law of limitation is always considered to be statute relating to procedure. The law of limitation is the law which bars the remedy and does not destroy the right. So, only law of limitation of the country in which the proceedings have been taken will be applicable, and not the law of the country in which the cause of action had arisen or the contract.

11. In the present case though the promissory note was executed in Singapore, the plaintiff filed the suit in India on the basis of the assignment made and on the basis of the permanent residence of the defendant.

12. With respect to the sustainability of the suit in India on the basis of the cause of action that had arisen outside India, the same has been decided in the Full Bench decision of this Court, in Muthukannai Mudaliar v. Andappa Pillai, 1954 (II) M.L.J 731, which has been approved by the Apex Court in Muthu Chettiar v. Shanmugham, A.I.R 1969 S.C, 552. Similarly, even in T.M & Co. v. H.I, Trust Ltd., AIR 1972 S.C, 1311, the similar view has been taken. The Full Bench of this Court in Muthukannai Mudaliar v. Andappa Pillai, 1954 (II) M.L.J 731, following various judgments, has found as follows:

The result of the authorities can be summed up briefly thus: (1) A suit can be instituted for personal relief against a defendant in a Court within the local limits of whose jurisdiction the defendant is residing or carrying on business on the date of the institution of the suit, wherever the cause of action for the suit had arisen; (2) In such a suit, the provisions of the Statute of Limitation in force in the country of the forum, i.e the lex fori would apply.”

13. So, now it cannot be said that merely because the promissory note was executed in Singapore, the present suit cannot be sustained. By relying on Section 15(5) of the Indian Limitation Act, the plaintiff can exclude the time during which the defendant was absent from India or from the territories outside India under the administration of Central Government, from computation of the period of limitation applicable to the case, namely, three years. Such a construction may lead to very inconvenient result. A person may reside outside India for years, and, according to the law of limitation of the country in which he resides, the remedy against him in respect of a cause of action of the nature of a personal action may be lost, yet on his coming to India, it will revive. This is the intention of the legislature. To come to such conclusion. I seek support from Mahomed Museeh-Ood-Deen v. Clara Tone Museeh-Ood-Deen, 1870 (2) N.W.P.H.C.R 173.

14. What is the scope of the word ‘absent’ has been decided in Atul Kristo Bose v. Lyon & Co, 1887 I.L.R 14 Cal. 457. It was submitted that the word ‘absent’ should be understood as applicable only to such persons as having been present or would ordinarily be present or may be expected to return. But while construing the scope of Sec. 13 of the Indian Limitation Act, 1887, the Full Bench of the Calcutta High Court in the said case has held that “but the section in question is not intended to define the persons for or against whom limitation shall run but to direct the mode of computing time. And if we were to attempt to restrict the meaning of ‘absent’ in such ways as are contended for, there is probably no limit to the number of suggestions that might be made and, as far as we can see, no reason for accepting one suggestion in preference to another”. Relying on various judgments on the issue, it has further held as follows:

It was pointed out in argument that, according to the construction which we place upon the Act, a man who was in England when a cause of action against him accrued, and has remained there ever since, may be liable after an indefinite time to be sued in a Calcutta Court. And it was contended that this was something absured, something that the Legislature could not have intended, and that we ought to adopt some construction which would avoid it. The answer given by the Privy Council to a somewhat similar objections in the case already cited in sufficient. The words of the section are express, and the case is within them. Moreover there is no more hardship than in the converse case of a man resident in Calcutta, who there incurs a liability to another person reisent in Calcutta, who remains in Calcutta long enough for any suit against him to be barred by the law prevailing in Calcutta, as well as ordinarily in England, who then goes to England and finds himself liable to be sued there any time within six years and this is exactly what happened under the Statute of Anna in Williams v. Jones, 13 East., 439.

15. So, it has to be decided whether the plaintiff can sustain the suit, though the defendant had not returned to India on the date of filing of the suit. In the present case, admittedly, the cause of action had arises in foreign country when the defendant was in Singapore. Even according to the plaintiff, the defendant was in Singapore on the date of filing of the suit. The plaintiff himself has given the Singapore address of the defendant in the plaint. The Full Bench of this Court in Muthukannai Mudaliar v. Andappa Pillai, 1954 (II) M.L.J 731 has found in this regard that “the Courts in a country have jurisdiction to entertain action in personam in respect of any cause of action or relating to any contract wherever cause of action might have arisen or wherever the contract has been made provided that at the commencement of the action the defendant was resident or present in that country”. (Italics is mine). Again in the conclusion, the same has been insisted by the Full Bench of this Court. Moreover, the words used in Section 15(5) of the Limitation Act themselves suggest that the defendant should be present in India on the date of filing of the suit. Otherwise, the question of computing the period of limitation taking into consideration of the defendant's absence would not arise. If the defendant continues to be absent such a calculation is impossible for the purpose of limitation. Moreover, the temporary visit to India also cannot be taken for the purpose of calculating the limitation. As held by the Apex Court in T.M & Co. v. H.L Trust Ltd., AIR 1972 S.C 1311 Section 15(5) presupposes that defendant was at one time present in India and later he has been absent from India, and, a person who was never in India cannot be considered as having been absent from India.

16. In view of the above, the respondent/plaintiff cannot take advantage of the provisions of Section 15(5) of the Limitation Act, 1963 for the purpose of computing the period of limitation, and to say that the suit is not barred by limitation.

17. For the reasons stated above, this second appeal is allowed, and the judgments and decrees of the Courts below are set aside. No costs.