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Shantaram Shankar Chobhe Vs. Chintamanrao Bhalchandra Patwardhan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 517 of 1938
Judge
Reported in(1942)44BOMLR522
AppellantShantaram Shankar Chobhe
RespondentChintamanrao Bhalchandra Patwardhan
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), sections 6, 19-debt-acknowledgment-plaintiff minor at date of acknowledgment-suit brought within period of limitation front date of acknowledgment-whether such suit is within time.;where the plaintiff is a minor, not at the date of the original cause of action but, at the date of the acknowledgment, made subsequently by the defendant, he can, under the combined operation of sections 6 and 19 of the indian limitation act, 1908, institute a suit within the prescribed period of limitation after his disability as minor has ceased.;venkataramayyar v. kothandaramayyar (1889) i.l.r. 13 mad. 135 and chandrabhan v. raj kumar (1932) i.l.r. 54 all. 1019, followed.;maganlal harjibhai v. amichand gulabji (1928) i.l.r. 52 bom. 521 : s.c. 30 bom. l.r. 133 and..........to limitation expiring during the vacation, or of any other special section by which the ordinary date or period of limitation is affected. it is argued from this that the date from which the period is to be reckoned is the date given in the third column of the first schedule, which deals with the date of the cause of action and that the date is therefore the date of the cause of action. an acknowledgment is not by itself a cause of action [see bal krishna v. debi singh (1933) i.l.r. 56 all. 281, and therefore (so the argument goes) the date of the cause of action is something other than the date of the acknowledgment and can only be the date of the original cause of action. but, as i read the section, there is no connection between the words 'time from which the period of limitation is.....
Judgment:

Macklin, J.

1. The plaintiff in this action is the Chief of Kurundwad State, and he is suing as a minor. The cause of action for the suit admittedly arose in June, 1926, at which date the defendant owed money to the plaintiff's father. On September 10, 1927, the plaintiff's father died, and his right of suit against the defendant descended upon his son. On September 30, 1927, a letter was written by the defendant to the plaintiff's guardian (maternal uncle) which in my view cannot be regarded in any light other than that of an acknowledgment of liability within the meaning of Section 19 of the Indian Limitation Act. In 1935 the plaintiff brought the present suit. Prima facie it is barred by limitation and the trial Court has dismissed it on that ground. But the lower appellate Court has accepted the plaintiff's contention that Section 6 read with Section 19 of the Indian Limitation Act has the effect of extending the period of limitation (which ordinarily would have been up to three years from the date of the plaintiff's attainment to majority), and the only question which I have to decide in this second appeal by the defendant is whether that view is correct.

2. Section 6 of the Indian Limitation Act, so far as is material for our present purpose, is as follows :-

Where a person entitled to institute a suit, ... is, at the time from which the period of limitation is to be reckoned, a minor, ... he may institute the suit ... within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefore in the third column of the first schedule.

3. The material part of Section 19 runs as follows :-

Where, before the expiration of the period prescribed for a suit, ... an acknowledgment of liability ... has been made in writing, ... a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

4. It was contended on behalf of the defendant that the letter of September 30, 1927, did not amount to an acknowledgment within the meaning of this Section ; but, as I have said, there is to my mind no doubt upon that point, and I do not think I need discuss it any further. Assuming that it is an acknowledgment capable in the ordinary way of giving rise to a fresh period of limitation, the question is whether Section 6 of the Indian Limitation Act can be so interpreted as to permit a person whose disability arose after the original cause of action to have the time extended or renewed in his favour according to the principles underlying Section6 by reason of an acknowledgment under Section 19 having been made to him during the period of his disability.

5. There is very little authority upon the point. In Venkataramayyar v. Kothandaramayyar (1889) I.L.R. 13 Mad. 135 it was held that the effect of an acknowledgment under Section 19 of the Act is that the earlier period of limitation already running is not merely extended but actually terminated, so that a new period starts running from the date of the acknowledgment, and therefore any disability existing at the date of the acknowledgment is a disability 'at the time from which the period of limitation is to be reckoned' within the meaning of Section 6 of the Act. The same view was taken in Chandrabhan v. Raj Kumar (1932) I.L.R. 54 All. 1019, and the Madras decision was referred to with approval. The two decisions proceed upon exactly the same ground, and the discussion is not appreciably more elaborate than the short summary that I have given.

6. In Maganlal Harjibhai v. Amichand Gulabji (1928) I.L.R. 52 Bom. 521 there were a series of acknowledgments made during the plaintiff's minority of a debt to the plaintiff's late father. It was held that the acknowledgments up to the year 1914 extended the period and that by reason of Section 6 of the Act the plaintiff was entitled to rely upon them, and, in view of the provisions of Section 6, was entitled to bring a suit at the date of his attaining to majority and for three years afterwards. But in point of fact the suit was not brought until several years after the plaintiff attained to majority, and he sought to bring his suit within time upon the ground of two further acknowledgments, one of which was made four years after the last of the acknowledgments which the Court found capable of saving limitation. On that ground it was held that his suit was out of time by reason of the fact that the last acknowledgments were not made before the expiration of the period prescribed for the suit within the meaning of Section 19, they having been made not within three years of the last acknowledgment but after three years. It is true that the Court referred to Venkataramayyar v. Kothandaramayyar with approval, and indeed upon that: case it based its decision that the earlier acknowledgments could save limitation. But, the suit was dismissed upon the ground that the last acknowledgments had been made after the period prescribed had expired, and on that decision alone the suit might have been dismissed, even after assuming without any discussion that the earlier acknowledgments were in time and otherwise capable of saving limitation. Thus in a sense the Court's approval of the principle laid down in Venkataramayyar v. Kothandaramayyar was an obiter dictum and cannot be regarded as a direct authority of this High Court in favour of that principle.

7. In another case of this High Court, Bhalchandra v. Chanbasappa (1938) 41 Bom. L.R. 391, the same situation arose as we have here. But the questions raised in issue and discussed in the judgment were in no way concerned with the effect of Section 19 upon Section 6 of the Act. The only real points to which the Court directed its attention were concerned with the validity of the alleged acknowledgment as an acknowledgment under Section 19. It was assumed that the plaintiff could get the benefit of Section 6 if the acknowledgment was good, and the judgment in no way suggests that the point with which we are now concerned had occurred to anybody.

8. These are the only authorities to which I have been referred as being directly in point. I think therefore that it is better for me to deal with this matter apart from authority upon the lines that the argument has taken before me. By Section 6 a person under a disability (minority, for example) is given the concession of suing after the disability ceases. But the concession is subject to the condition that he must have been under the disability 'at the time from which the period of limitation is to be reckoned'. For the defendant Diwan Bahadur Shingne argues on various grounds that 'the time from which the period of limitation is to be reckoned' can only mean 'the date of the cause of action'. He points to the illustrations, of which the first is as follows:

The right to sue for the hire of a boat accrues to A during his minority. He attains majority four years after such accrue. He may institute his suit at any time within three years from the date of his attaining majority.

9. It is true that the date of the right to sue seems in every case to be the date of the cause of action, so far as the illustrations go. But the illustrations are not exhaustive. Moreover, if any inference is to be drawn from the wording of the illustrations, full value must be given to the words used, and the words used are concerned with the date when the right to sue accrues to the minor. That is not the same thing as the date when the right to sue arose. The right to sue arose at the date of the original cause of action. The right to sue accrued to the plaintiff on the death of his father; and on the death of his father the plaintiff was a minor. If then the time from which the period of limitation is to be reckoned means the time at which the right to sue accrued to the plaintiff, then the plaintiff has satisfied the conditions laid down in Section 9. In this same connection it is also argued that Section 9 shows that the time from which limitation is to be reckoned means the date of the cause of action. BySection 9 no subsequent disability can stop the running of time when it has once started to run, and as time starts to run as soon as the right to sue arises, it is argued that the plaintiff ought to have been both a minor and a potential plaintiff at that time. In view of the wording of the illustration, which (as I have pointed out) refers to the date when the right to sue ' accrues ' to the plaintiff and not when the right to sue ' arises ', the argument is unsound. But apart from that, there is yet another weakness in it. It is true that the disability arising out of the plaintiff's minority arose after time had begun to run and is therefore of no avail to stop time from running. But what stopped the time from running was not the plaintiff's minority but an acknowledgment which gave rise to a fresh starting point of limitation.

10. Stress is then laid on the concluding words of Sub-section (1) of Section 6 'From the time prescribed therefor' (that is, for the suit) 'in the third column of the first schedule'. There is no suggestion that the date so prescribed is to be modified by the provisions of Section 19 as to acknowledgments, or of Section 4 as to limitation expiring during the vacation, or of any other special Section by which the ordinary date or period of limitation is affected. It is argued from this that the date from which the period is to be reckoned is the date given in the third column of the first schedule, which deals with the date of the cause of action and that the date is therefore the date of the cause of action. An acknowledgment is not by itself a cause of action [see Bal Krishna v. Debi Singh (1933) I.L.R. 56 All. 281, and therefore (so the argument goes) the date of the cause of action is something other than the date of the acknowledgment and can only be the date of the original cause of action. But, as I read the section, there is no connection between the words 'time from which the period of limitation is to be reckoned' and the words 'time prescribed therefor' in the third column of the first schedule. The Section may be paraphrased as follows : 'When a plaintiff is a minor at the time from which the period of limitation is to be reckoned, he may institute his suit within the same period, starting from the date of his becoming a major, as (but for his minority) would have been available to him, starting from the date prescribed for such a suit in the third column of the first schedule '. For example, if the third column provides two years from the date of the cause of action-which means (as the learned advocate rightly says) the original cause of action-then the plaintiff gets two years from the date of his majority. That is all that it means. I might perhaps add that if any argument can be usefully based upon the absence of any words modifying the expression 'time prescribed in the third column', an even stronger argument on the other side could be based on the absence of any words restricting to the date of the original cause of action the time from which the period of limitation is to be reckoned.

11. By Section 19 an acknowledgment made within the period of limitation gives rise to a fresh starting point of limitation. But it is argued that Section 19 cannot control Section 6, since even when there is an acknowledgment, it is still necessary to reckon the period from the date of the cause of action in order to see whether the acknowledgment itself is within the prescribed period. In the first instance that no doubt is so. But once it is found that the acknowledgment has been made within the period of limitation, a fresh reckoning then has to be made from the date of the acknowledgment. Another ground put forward for the contention that Section 19 does not provide an exception to, or an extension of, Section 6 is that an extension of the period of the plaintiff's right to sue (e.g. by reason of the Court being closed on the day when the ordinary period of limitation expires) does not involve an extension of the period within which an effective acknowledgment may be made [ see Bai Hemkore v. Masamalli (1902) I.L.R. 26 Bom. 782 and Maganlal Harjibhai v. Amichand Gulabji (1928) I.L.R. 52 Bom. 521 . But in Section 6 we are concerned with the time from which the period of limitation for a suit is to be reckoned ; and it is a fact that an effective acknowledgment does postpone the time from which the limitation for a suit is to be reckoned, and to that extent Section 19 must be said to control Section 6. The third ground for this same contention is that Section 19 occurs in Chapter III of the Act, among the sections which provide rules for calculating the period of limitation, while Section 6 occurs in Chapter II, which deals with the general principles governing limitation ; in other words Section 19 provides not a new rule of limitation but merely a new starting point for the calculation of the period. This seems to me to be a distinction without a difference ; in effect Section 19 does provide a new rule of limitation.

12. Prima facie the words 'at the time from which the period of limitation is to be reckoned' occurring in Section 6 mean what they say ; and the only reasons addressed to me for holding that they do not mean what they say but refer only to the date of the cause of action are those that I have discussed above. I do not think that there is any ground for holding that the words do not mean what they say ; and it follows that when you have an acknowledgment which is valid under; Section 19 to save limitation in the ordinary course you must take the time from which the period of limitation is to be reckoned to be the date of the acknowledgment and not the date of the cause of action. That being so this appeal fails and is dismissed with costs.


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