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Dwarka Prasad Vs. Raja Ram and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All272; 29Ind.Cas.980
AppellantDwarka Prasad
RespondentRaja Ram and anr.
Excerpt:
limitation act (ix of 1908), section 25 - instalment bond--hindi date mentioned in bond--true test as to when limitation begins to run. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - the whole question turns upon the intention of the parties and it seems to us that in this case the intention clearly was that payment of the instalments was to be made on the hindi dates mentioned in the bond, and that the last payment was to be made on the date on which, the eighth instalment was payable, namely, on magh siidi puranmashi 1956, corresponding to the 14th of february 1900. jn this view section 25 of the limitation act has no application to a case of this kind......rate of twelve annas per cent, per mensem and also rs. 500 out of the principal on puranmashi of magh sudi of each year. the first instalment of interest and that of principal shall be payable on puranmashi of magh sudi 1949 sambat. similarly the instalment of principal and interest shall be payable each year on puranmashi of magh sudi. we the debtors shall pay without objection interest on the whole of the remaining amount and rs. 500 out of the principal year by year.' there is a further clause in the bond that in ease of default in the payment of three instalments, the creditors would be entitled to realise the whole amount secured by the bond without waiting for the other instalments.2. two contentions have been raised before us. the first is that default having been made in the.....
Judgment:

1. This appeal arises out of a suit brought by the plaintiffs to enforce payment of money due upon a mortgage-executed on the 24th of July 1892. The question to be considered is whether the claim of the plaintiffs, which was instituted on the 19th of July 1912, is or is not time-barred. The bond provides that the amount secured by it should be paid in eight years 'in this way that we shall pay interest on the whole amount aforesaid at the rate of twelve annas per cent, per mensem and also Rs. 500 out of the principal on Puranmashi of Magh Sudi of each year. The first instalment of interest and that of principal shall be payable on Puranmashi of Magh Sudi 1949 Sambat. Similarly the instalment of principal and interest shall be payable each year on Puranmashi of Magh Sudi. We the debtors shall pay without objection interest on the whole of the remaining amount and Rs. 500 out of the principal year by year.' There is a further clause in the bond that in ease of default in the payment of three instalments, the creditors would be entitled to realise the whole amount secured by the bond without waiting for the other instalments.

2. Two contentions have been raised before us. The first is that default having been made in the payment of instalments, the whole of the amount of the bond became due when default was made in the payment of the third instalment, and accordingly calculating limitation from the date of that default the claim is time-barred. The second contention is that in any exentthe whole amount of the bond was re-payable on Magh Sudi Puranmashi 1956, corresponding to the 14th of February 1900, and as the suit was brought after twelve years from that date, it is equally barred by limitation.

3. Holding the view that we do on the second point, it is unnecessary to refer to the first point. We are of opinion that having regard to the terms of the bond the amount of it became payable at the the latest on Magh Sudi Puranmashi of 1956, that is to say, the date on which the eighth instalment was payable. It is true that in the earlier part of the bond it is said that the debt was to be re-paid in eight years but this is qualified by the clause which follows, namely, the clause stating how the eight years were to be calculated. The true test in a case of this kind is on what date were the plaintiffs entitled to demand their money if payment was not made of the eight instalments fixed in the bond. If default made on Magh Sudi Puranmashi 1956, corresponding to the 14th of February 1900, there can be no doubt that the creditors would be entitled to demand their money on the expiry of that date, and it would be no answer to their demand for the money to say that they were bound to wait till the expiry of eight years calculated from the date of the bond according to the English Calendar. The whole question turns upon the intention of the parties and it seems to us that in this case the intention clearly was that payment of the instalments was to be made on the Hindi dates mentioned in the bond, and that the last payment was to be made on the date on which, the eighth instalment was payable, namely, on Magh Siidi Puranmashi 1956, corresponding to the 14th of February 1900. Jn this view Section 25 of the Limitation Act has no application to a case of this kind.

4. The learned Counsel for the respondents relied on the case of Latif-un-nissa v. Dhan Kunwar 24 C. 382 and the cases referred to therein.

5. The provisions of the bond in that case are not identical with those of the bond before us, and even in that case Mr. Justice Ameer Ali was of opinion that Section 25 of the Limitation Act did not apply. He concurred with his learned colleague as there were doubts as to what the intention of the parties was under the document in that case.

6. In our opinion the suit of the plaintiffs is time-barred and ought to have been dismissed. We accordingly allow the appeal, set aside the decree of the Court below and dismiss the suit with costs in both Courts.


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