Walsh and Banerji, JJ.:— We think that this appeal fails. We agree with the view taken by the learned Judge. There seems to have been a good deal of discussion at different times about the date of the cause of action and, therefore, the plea of limitation for these suits for loss or damage incurred by reason of the failure of a party to the contract to carry out his undertaking to pay money to a third person. From one point of view the present appeal is unarguable. Mr. Narain Prasad Ashthana says that no time was fixed for payment, therefore no time ever arose for the performance of the obligation, therefore there could be no breach until the person who had undertaken to pay was called upon to do so, either by the person with whom he had consented to pay, or by the person whom he ought to have paid. It would be sufficient intimation creating a breach when the person to whom the money has to be paid sues the original debtors, namely, in this case; the plaintiff. We hold unhesitatingly that where no time is mentioned, it means the undertaking is an undertaking to pay upon demand and no cause of action arises until demand is made, and when demand is made and ignored, then if the person to whom the money should be paid sues the person with whom the contract has been made, loss occurs and damages are recovered, the cause of action is not the breach; but the loss itself, and, therefore, the statute in this case ran from the time when the money was paid. Reliance was placed upon a decision, which is now of some years' standing, reported in Raghubar Rai v. Jaij Raj. We doubt whether that case is a clear authority. The money in that case had not been paid and, therefore, the question which has arisen in most of the subsequent case did not arise. There seems to be a healthy and consistent current of authority in recent years that the statute runs from the time when the loss is incurred, or, in other words, when payment is made. The learned Judge based himself upon a recent case decided by a Bench of this Court in Kedar Nath v. Har Govind. We agree with that decision. We think that it is applicable here and we think that in all probability the reasoning of Mr. Justice Ashworth's judgement drawing attention to the difference between the law of contract in England and as codified in India, is possibly the explanation or the foundation of the consistent rule which has been laid down by this Court. The appeal must be dismissed with costs.
Appeal dismissed.