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Ram Das and ors. Vs. Saiyid Muhammad Sayeed Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All524; 67Ind.Cas.160
AppellantRam Das and ors.
RespondentSaiyid Muhammad Sayeed Khan and ors.
Cases ReferredGaya Din v. Jhuman Lal
Excerpt:
limitation act (ix of 1908), section 19, schedule i, article 132 - mortgage--property hypothecated--covenant to pay interest yearly and on default whole amount--cause of action. - .....barred. we have been taken through the terms of the deed in question. we find that the executant, muhammad raza, executed the deed for a consideration of rs. 1,000 and agreed to pay interest at the rate of 24 per cent. per annum. he covenanted to pay the interest year by year and the principal within three years of the date of execution, and in case of default of the payment of the annual interest he empowered the mortgage without waiting for the expiration of the period fixed for payment of the principal to realise the amount due for the principal and interest from the hypothecated property. he also covenanted that so long as the principal remained unpaid interest at 24 par cent, per annum would accrue and that interest at this rate should be payable from the date of default to the.....
Judgment:

1. This is an appeal by the plaintiffs against the dismissal of their suit on a deed dated the 17th of July 1901 on the ground that it was time barred. We have been taken through the terms of the deed in question. We find that the executant, Muhammad Raza, executed the deed for a consideration of Rs. 1,000 and agreed to pay interest at the rate of 24 per cent. per annum. He covenanted to pay the interest year by year and the principal within three years of the date of execution, and in case of default of the payment of the annual interest he empowered the mortgage without waiting for the expiration of the period fixed for payment of the principal to realise the amount due for the principal and interest from the hypothecated property. He also covenanted that so long as the principal remained unpaid interest at 24 par cent, per annum would accrue and that interest at this rate should be payable from the date of default to the date of the payment.

2. We can only interpret these portions of the deed to mean that the privilege of defending payment of the principal to the 17th of July 1904 was conditional on the punctual payment of the annual interest and that the whole amount, principal and interest, became due on the 17th of July 1902 in default of payment of the interest for the first year.

3. On the facts, no interest was paid at all, so the cause of action arose in our opinion on the 17th of July 1902.

4. In these circumstances, the suit which was instituted on the 23rd of February 1916 was time barred in the absence of acknowledgment. If authority be needed for this view, we would refer to Gaya Din v. Jhuman Lal 23 Ind. Cas 910 : 31 A. 400 : 13 A.I.J. 510 (F.B.). The document before the Bench in that case was very similar to the document now before us. We have now to consider whether there was any acknowledgment which can be pleaded under the provision's of Section 19 Act IX of 1908 to extend the period. There is a final finding of fact that no interest was paid. Two acknowledgments were set up, one alleged to have been made by Muhammad Raza on the 10th of November 1906 and the other made by Mul Chand.

5. With regard to the acknowledgment alleged to have been made by Muhammad Raza, we find, in addition to the fact that it was not an acknowledgment in writings signed by Muhammad Raza personally or by an agent duly authorised in this behalf, that the statement which he made did not amount to an acknowledgment of liability.

6. The learned Counsel for the appellant has not pressed the acknowledgment alleged to have been made by Mul Chand as being of any advantage to his client. This concludes all the points taken in argument.

7. We dismiss the appeal with costs including fees on the higher scale.


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