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Town Area Committee Vs. Budh Sen - Court Judgment

LegalCrystal Citation
SubjectContract;Limitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1404 of 1955
Judge
Reported inAIR1962All438
ActsLimitation Act, 1908 - Schedule - Articles 115 and 120
AppellantTown Area Committee
RespondentBudh Sen
Appellant AdvocateJ.N. Agrawal, Adv.
Respondent AdvocateB.N. Asthana, Adv.
DispositionRevision allowed
Excerpt:
contract - limitation - articles 115 and 120 of limitation act, 1908 - recovery suit - recovery of defaulted installments of theka - suit for enforcement of agreement - suit filed under article 120 and not under 115. - - when he failed to pay certain instalments, the suit was brought to compel him to pay them. when the applicant sought a decree for the very sum that the opposite party had promised to pay and had not paid, it was clearly a suit for enforcement of the agreement......act by the town area committee of raya whose suit for the recovery of a sum ofmoney from the opposite party has been dismissed by the court of small causes.2. in exercise of the powers conferred by section 293(1) of the municipalities act, which is in force in the town area, raya, the town area committee granted the theka of a shop to the opposite party for one year on payment of rs. 2000/-, to be paid in monthly instalments or rs. 200 and rs. 100. the respondent paid some instalments and defaulted in payment of the rest. consequently on 14-4-55 the suit giving rise to this revision was instituted by the applicant against the opposite party for recovery of the balance of the money due. the suit has been dismissed by the learned judge of the court of small causes on the ground that.....
Judgment:

Desai, C.J.

1. This is a revision under the Small Cause Courts Act by the Town Area Committee of Raya whose suit for the recovery of a sum ofmoney from the opposite party has been dismissed by the Court of Small Causes.

2. In exercise of the powers conferred by Section 293(1) of the Municipalities Act, which is in force in the Town Area, Raya, the Town Area Committee granted the theka of a shop to the opposite party for one year on payment of Rs. 2000/-, to be paid in monthly instalments or Rs. 200 and Rs. 100. The respondent paid some instalments and defaulted in payment of the rest. Consequently on 14-4-55 the suit giving rise to this revision was instituted by the applicant against the opposite party for recovery of the balance of the money due. The suit has been dismissed by the learned Judge of the Court of Small Causes on the ground that it was one for recovery of rent governed by Article 110 of the Limitation Act or for damages for breach of contract governed by Article 115 the limitation for which is three years. The applicant contended that it was a suit governed by neither of the two articles and, therefore the period of limitation for it was governed by the residuary Article 120 prescribing a period of six years limitation to be computed from the date on which the instant suit is not a suit for recovery of rent, that if the suit was governed by Article 110 or 115 it was barred by time, and that if if was governed by Article 120 it was within time.

3. As regards Article 110 it prescribes a period of 3 years for filing of a suit if the suit be for recovery of rent. It was conceded by Sri B. N. Asthana for the opposite party that the instant suit is not a suit for recovery of rent. In view of this concession if is not necessary for us to go into the question whether Article 110 applies or not.

Coming to Article 115, we have no hesitation in saying that it does not apply because the suit is not for compensation, which is nothing but damages for breach of contract. The opposite party took the theka for the shop for one year agreeing in writing to pay to the applicant a sum of Rs. 2000/- in certain instalments. When he failed to pay certain instalments, the suit was brought to compel him to pay them. To ask for a decree for the money involved in the unpaid instalments is nothing but to make him pay those instalments. The suit was thus for enforcement of the agreement entered into by the opposite party rather than for compensation or damages for breach of it. It is true that the opposite party committed a breach of the agreement by not paying the instalments, but when there is a breach of an agreement, the remedy of the other party is to sue either for enforcement of the agreement or for compensation or damages for the breach. If a breach of an agreement gives rise to a suit, it is not necessarily a suit for compensation or damages; it can be one for specific performance also. Therefore, merely because the opposite party defaulted in paying the instalments it cannot be said that the suit was one for compensation or damages for the default; it could be a suit for enforcement of the agreement. What kind of suit it was depends naturally upon the relief claimed. When the applicant sought a decree for the very sum that the opposite party had promised to pay and had not paid, it was clearly a suit for enforcement of the agreement. The applicant did not seek any compensation or damages for the breach.

Tricomdas Cooverji Bhola v. Sri Gopinath Jiu Thakur, AIR 1916 PC 182 and Mohammad Ghasita v. Siraj-ud-din, AIR 1922 Lah 198 (FB) are of no assistance in this case. In the former case the Privy Council did not deal with the meaning of the word ''compensation'' used in Article 115. All that was laid down in the other case by a Full Bench of the Lahore High Gouril is that Article 115 applies even when the, plaintiff seeks to recover a specified amount on account of a contract. The suit dealt with by the Full Bench was one for a certain sum of money alleged to be due for materials supplied and work done. We are here concerned with a suit for recovery of money promised to be paid by the defendant. The observation of the Full Bench that the word 'compensation' in Article 115 has the same meaning as it has in Section 73 of the Indian Contract Act and denotes a sum of money payable to a person on account of the loss or damage caused to him by breach of a contract supports the applicant rather than the opposite party. We hold that the present suit was not a suit for compensation and was not governed by Article 115 of the Limitation Act also.

4. So, we are left with Article 120 and hold that the Suit was within time.

5. The other issues arising in the suithave been decided in favour of the applicantand the findings are not challenged before us.We, therefore, allow this application set asidethe decree of the learned Judge below and decree the suit of the applicant with costs of bothcourts.


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