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Jugal Kishore Vs. Mr. P.K. Banerji, Official Receiver - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in156Ind.Cas.964
AppellantJugal Kishore
RespondentMr. P.K. Banerji, Official Receiver
Excerpt:
limitation - plaintiff and defendant originally creditor and surety--subsequent agreement, by which surety undertakes to pay the sum unconditionally--suit against him within three years of agreement, whether lies--surety. - - 800 which represented the price of cloth bought by the aforesaid persons and that he had stood surety for the payment of that sum but that as they had failed to make the payment the executant (the defendant) was made liable and agreed to pay it without interest by instalments of rs. it may be that the reason for this unconditional undertaking was the failure on the part of ganga sahai sat narain to pay......liability is at an end. if this is the defendant's plea in substance it cannot take the form of a plea of limitation as between the plaintiff and the appellant and it should have been based on the terms of section 134, indian contract act which is relied on. as a matter of fact a separate plea based on that section was taken in the lower court but was over-ruled. if i were to take a strict view of this question, i could dismiss the revision on the ground that the plea of limitation being the only plea in the memorandum of revision it can have no force the suit having been brought within three years from the date of the agreement. i do not, however, consider it desirable to base my decision on a purely technical point of this kind, i have heard counsel for the parties on the merits and.....
Judgment:
ORDER

Niamat-Ullah, J.

1. This is an application for revision of a decree passed by the learned Judge of the Small Cause Court at Cawnpore. The appellant in this Court was the defendant in the lower Court. The suit which has given rise to this revision was brought by the plaintiff opposite party for recovery of Rs. 896 and interest on foot of an agreement admittedly executed by the defendant. The agreement recites that the plaintiff had agreed to give credit to Ganga Sahai Sat Narain for the sum of Rs. 800 which represented the price of cloth bought by the aforesaid persons and that he had stood surety for the payment of that sum but that as they had failed to make the payment the executant (the defendant) was made liable and agreed to pay it without interest by instalments of Rs. 150 a year.

2. One of the pleas taken in the lower Court and the sole ground of revison in this Court is that the suit is barred by limitation. The agreement is dated January 10, 1931, and the suit was brought on January 10, 1934, that is within three years. Learned Counsel for the applicant explained the significance of that plea which puts an entirely different complexion on it. The contention is that the plaintiff allowed his remedy against Ganga Sahai Sat Narain to become barred by limitation which operates as a discharge of those debtors and consequently under Section 134 the surety's liability is at an end. If this is the defendant's plea in substance it cannot take the form of a plea of limitation as between the plaintiff and the appellant and it should have been based on the terms of Section 134, Indian Contract Act which is relied on. As a matter of fact a separate plea based on that section was taken in the lower Court but was over-ruled. If I were to take a strict view of this question, I could dismiss the revision on the ground that the plea of limitation being the only plea in the memorandum of revision it can have no force the suit having been brought within three years from the date of the agreement. I do not, however, consider it desirable to base my decision on a purely technical point of this kind, I have heard Counsel for the parties on the merits and am of the opinion that the decree of the lower Court must stand.

3. It is true that originally the relationship between the plaintiff and the defendant was that of a creditor and surety. That relationship was superseded by the agreement of January 10, 1931, by which the defendant unconditionally undertook to pay the sum of Rs, 800, by instalments. It may be that the reason for this unconditional undertaking was the failure on the part of Ganga Sahai Sat Narain to pay. According to the terms of the agreement the defendant became the debtor and it is in that capacity that he was sued in this case. For this reason I think the decree of the lower Court is correct. The application for revision is dismissed with costs.


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