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Rai Bahadur Babu Makund Lal Vs. Bhola Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in131Ind.Cas.686
AppellantRai Bahadur Babu Makund Lal
RespondentBhola Rai and ors.
Excerpt:
.....of action--right to sue before paying off creditors. - - we are clearly of opinion that article 111 of the limitation act is not applicable to the suit. the defendant did not pay that amount and there, was clearly a breach of a covenant in writing registered within the meaning of article 116. the limitation provided for a suit under this article is 16 years from the date when the contract is broken. the suit having been instituted within 6 years of the breacn of the covenant is, therefore, clearly within time. there is clearly a fallacy underlying this argument. the plaintiff had directed the defendant to spend the money for the plaintiff in a particular way but the defendant had failed to do so......below. we are clearly of opinion that article 111 of the limitation act is not applicable to the suit. article 111 provides for a suit by a vendor of immoveable property for personal payment of unpaid purchase-money. there was no covenant in the sale-deed dated the 12th of july, 1926, for payment of rs. 1,300 to the defendant personally article 111 is, therefore not applicable to the suit in hand. in our opinion, the suit was in the nature of a claim 'for compensation for the breach of a contract in writing registered'. there was a registered covenant that the defendant would pay rs. 1,300 to a number of specified creditors. the defendant did not pay that amount and there, was clearly a breach of a covenant in writing registered within the meaning of article 116. the limitation.....
Judgment:

1. This is an appeal by the defendant and it arises out of a suit for recovery of unpaid purchase-money together with interest.

2. On the 12th of July, 1926, Bhola Rai and others executed a sale-deed of some zemindari share in favour of Rai Bahadur Babu Makund Lal appellant, for Rs. 1,608-12. Rs. 308-12, were paid in cash at the time of registration. Rs. J,3C0 were left with the vendee for payment of certain creditors.

3. It may be incidentally mentioned that the property sold was not burdened with any charge or mortgage in favour of the creditors for whom the sum of Rs. 1,300 was left.

4. The defendant vendee did not pay the amount to the creditors within a reasonable time and the result of it was that the present action was instituted on the 4th of October, 1929.

5. The suit was resisted on the ground that it was barred by limitation under Article 111 of the Limitation Act and that the plaintiff had not been compelled to pay the amount to the creditors and that no cause of action had accrued to the plaintiff inasmuch as the plaintiff had not to pay the money to the creditors. These pleae were repelled by the Court below. We are clearly of opinion that Article 111 of the Limitation Act is not applicable to the suit. Article 111 provides for a suit by a vendor of immoveable property for personal payment of unpaid purchase-money. There was no covenant in the sale-deed dated the 12th of July, 1926, for payment of Rs. 1,300 to the defendant personally Article 111 is, therefore not applicable to the suit in hand. In our opinion, the suit was in the nature of a claim 'for compensation for the breach of a contract in writing registered'. There was a registered covenant that the defendant would pay Rs. 1,300 to a number of specified creditors. The defendant did not pay that amount and there, was clearly a breach of a covenant in writing registered within the meaning of Article 116. The limitation provided for a suit under this Article is 16 years from the date when the contract is broken. The suit having been instituted within 6 years of the breacn of the covenant is, therefore, clearly within time.

6. It is next contended that no cause of action accrued for the suit because the plaintiff had not been compelled to pay the sum claimed to his creditors. There is clearly a fallacy underlying this argument. The money belonged to the plaintiff. The plaintiff had directed the defendant to spend the money for the plaintiff in a particular way but the defendant had failed to do so. The result of this act was that the plaintiff was damnified to this extent that the interest on the debts payable by the plaintiff was amounting up from day today. Therefore, there can be no doubt that a cause of action had accrued to the plaDitiff and he was justified in claiming a refund of the money which belonged to him and which did not belong to the vendee. We overrule this plea. The result is that we dismiss this appeal under Order XLI, Rule 11, Civil Procedure Code.


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