Jagdish v. Saligram

Manohar Lall, J.:— In this appeal by the defendant the only question for decision is whether the suit of the respondents to recover their dues on a hand-note was barred by limitation.

On the 16th of June, 1934, the appellant executed a hand-note in favour of the plaintiff for a sum of Rs. 3,340-12-0 to carry interest at Re. 1 per cent per mensem. On the 16th of July, 1934, a sum of Rs. 100 was paid by the defendant towards the dues on the hand-note, and on the 9th of August, 1934, another sum of Rs. 125 was paid by the defendant. As these two sums were more than the interest due on those dates, the courts below have found that by these two payments a part of the principal and a part of the interest due was paid off. Three open payments were made on the 16th of June, 1935 (Rs. 110), on the 28th of November, 1937 (Rs. 67-8-0), and on the 8th of April, 1939 (Rs. 20). The plaintiff's case was that these three amounts were paid towards interest as such, but the courts below have concurrently held that the last three payments were clearly open payments.

It should be stated here that all these payments were duly endorsed on the back of the hand-note by defendant no. 1 under his signature but he did not state that he was paying these amounts towards interest as such. In evidence P.W 2, Saligram Lal, the plaintiff, stated

“It is customary to charge payments towards interest and so these payments have been credited towards interest, though they have not been shown paid as such in my Bahis. Neither the defendant no. 1 said at the time of payments nor did I, whether the payments were being made towards principal or interest”.

In these circumstances the only conclusion possible is that which has been drawn by the learned Judge that these last three payments were clearly open payments, and the argument of Mr. K.N Lal to the contrary cannot be accepted. The plaintiff further stated that as he was entitled to appropriate the last three payments towards interest he has done so. The learned Munsif however came to the conclusion that there was no evidence that the plaintiff has appropriated these sums towards principal within three years of the date of the payments or at any rate before the date of the suit and that the only document showing appropriation is the plaint itself and that exhibits 3 and 3(a), entries in the plaintiff's books, do not show the alleged appropriation.

The learned Judge in appeal however thought that the plaintiffs were entitled to appropriate the last three payments towards interest if they liked and they have done so as stated by P.W 2 though it is not specifically mentioned in the books of account. The learned Judge also relied upon Act XVI of 1942 by which section 20 of the Limitation Act has been amended and held that the last three payments which were endorsed by defendant no. 1 saved limitation. Accordingly he reversed the decision of the learned Munsif and decreed the suit of the plaintiff. Hence the second appeal to this Court.

Mr. N.K Prasad, no. 1, who appears on behalf of the appellant, argued that the suit of the plaintiff was barred by limitation under, the law which stood before the amending Act of 1942. In this contention he is supported by the decision of their Lordships of the Judicial Committee in the well-known case of Rama Shah v. Lal Chand and also by the recent decision of this Court in Firm Ramchandra v. Firm Sheikshitu.

Mr. N.K Prasad, no. 1, submits that the new amending Act can have no application to this case and relies upon a number of decisions of the other High Courts particularly on S. Avudayammal v. Ambasankar Davay, M. Krishnaswami Naicker v. Thiruvendgadda Mudaliar, Harkubai Fakirchand, Dial Singh v. Mohammad Ali, and draws attention to the principle laid down by their Lordships of the Judicial Committee in Sachindra Nath Roy v. Maharaj Bahadur Singh(4). But unfortunately for him the matter has been decided expressly by a Division Bench of this Court, of which I was a member, in Baleswar v. Latafat(5), in which we held that the provisions of the Limitation Act applicable to such a suit are the provisions which existed on the date when the suit was instituted, and the provisions of section 20 of the Limitation Act as amended by Act XVI of 1942 must operate to decide the question of limitation. This is exactly the situation in the present case. This decision has been followed by another Division Bench of this Court in Sarabdeva Prasad… v. Dwarka Prasad….(6).

For these reasons I must affirm the decision of the learned Additional District Judge and dismiss this appeal, but in the circumstances I would make no order for costs.

I desire to observe that when we gave our decision in Baleswar v. Latafat our attention was not drawn to the authorities cited before us by Mr. N.K Prasad no. 1 which at the first sight may appear to present some difficulty, but I am not prepared to differ from the decision which we gave on that date. That decision has been followed by another Division Bench as stated already.

Das, J.:— I agree to the order proposed by my learned brother.

Had the matter not been settled by a decision of this Court, I would probably have come to the conclusion that the amending Act (Act XVI of 1942) cannot operate so as to revive and make effective a barred right. The reasons for such a conclusion have been explained in M. Krishnaswami Naicker v. A. Thiruvengadda Mudaliar and S. Avudayammal v. Ambasankar Davay(7). Those decisions are based on the following observations made by their Lordships of the Judicial Committee in Sachindra Nath Roy v. Maharaj Bahadur Singh regarding the application of the Limitation Act of 1908:—“There is no provision in this latter Act so retrospective in its effect as to revive and make effective a judgment or decree which before that date had become unenforceable by lapse of time”. The decision of a Division Bench of this Court in Baleswar v. Latafat, has, however, decided the question for this Court, and the conclusion arrived at therein is supported by the decision of their Lordships of the Judicial Committee in Soni Ram v. Kanhaiya Lal, though, it may be urged that the question before their Lordships was not exactly the same, namely, if the subsequent Act of Limitation would operate so as to make effective a barred right. The later decision in Sarabdeva Prasad… v. Dwarka Prasad…. has followed the earlier decision referred to above by holding that the amending Act cannot have retrospective operation in the sense that it cannot apply to a suit which had already been instituted. In view of these decisions, the Single Judge decisions of the Madras High Court in M. Krishnaswami Naicker v. A. Thiruvengada Muddliar and S. Avudayammal v. Ambasankar Davay cannot be relied on in preference to Division Bench decisions of this Court. I should like to add that in S. Avudayammal v. Ambasankar Davay and Harkubai Fakirchand Shet v. Shankerbhai Zaverbhai Gujarati—on which the appellant relied—the suits were brought before the amending Act came into force, unlike the present case where the suit was brought after the amending Act had come into force. It may, therefore, be argued that the law of Limitation on the dates on which those suits were brought was the old law, and not the amending Act of 1942; and under the old law those suits were correctly decided. The Lucknow decision in Babu Durga Prasad v. Kishuni does not really decide the question, though certain observations are made therein to the effect that the appellant may be entitled to the benefit of a change of law made during the pendency of an appeal. All that was decided in the Lucknow case was that the amending Act in question could be taken advantage of by an applicant for revision. The learned Judges were dealing with a revision application, and it was not necessary for them to decide, and they did not decide whether the new section 20 would apply to a suit brought long before the amending Act had come into force. As far as this Court is concerned, it has been definitely held that the new section would not apply to a suit brought before the amending Act had come into force, and that it would apply only in a suit brought after the amending Act has come into force. In other words, the law of Limitation which would apply is the law which prevails on the date when the suit is instituted.

I do not think we can go back on the decisions of this Court, though, as I have stated above, I would personally have come to a different conclusion if the matter were not covered by the aforesaid decisions of this Court.

Appeal dismissed.

K.D