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Ponnuswami Chetty and anr. Vs. the Vellore Commercial Bank Ltd. by Agent Kumaraswami Aiyar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1920)38MLJ70
AppellantPonnuswami Chetty and anr.
RespondentThe Vellore Commercial Bank Ltd. by Agent Kumaraswami Aiyar
Cases ReferredAnnamalai Chetty v. Velayuda Nadar I.L.R.
Excerpt:
- - but we fail to see why article 69 or article 80 should not apply to this case......per cent per mensem. on the same date the promissory note was executed. in the accounts of the bank exhibit c, six months interest was deducted from the money paid to the defendant. on these facts the question is whether the cause of action arose on the date of the note or whether it arose only after the six months provided for in the application from exhibit b. mr. viswanatha aiyar referred us to one circumstance which may be disposed of at once. he referred to rule 24 of the rules of the bank which provided for the bank anticipating the due date and suing before the six months are over. that was a provision made in the interests of the bank and certainly has no effect upon the date upon which the cause of action starts. that provision was doubtless made to enable the bank to bring.....
Judgment:

1. The suit was brought upon a promissory note, Exhibit A. The question is when the cause of action arose for the suit. The defendant applied to the Bank at Vellore by Exhibit B for a loan. The application is in a printed form and he filled up the blank by inserting the words ' for six months Thavanai. Thereupon the application was referred to an officer of the Bank, who made an endorsement to this effect. 'The applicants are responsible men. I am of opinion that Rs. 3000 may be lent to them for six months Thavanai at 12 annas per cent per mensem. On the same date the promissory note was executed. In the accounts of the Bank Exhibit C, six months interest was deducted from the money paid to the defendant. On these facts the question is whether the cause of action arose on the date of the note or whether it arose only after the six months provided for in the application from Exhibit B. Mr. Viswanatha Aiyar referred us to one circumstance which may be disposed of at once. He referred to Rule 24 of the rules of the Bank which provided for the Bank anticipating the due date and suing before the six months are over. That was a provision made in the interests of the Bank and certainly has no effect upon the date upon which the cause of action starts. That provision was doubtless made to enable the Bank to bring a suit if it found that the defendant had become an insolvent or was likely to leave the jurisdiction of the Court. In our opinion that provision could not in the least affect the starting period of limitation.

2. The learned Vakil for the appellant argued that the exception provided for in Article 73 can have no application to this case. There is something to be said for this argument, because the article speaks of an agreement in writing restraining or postponing the right to sue. It is doubtful whether Exhibit B really restrains or postpones the right to sue. The proper mode of looking at Exhibit B is to regard it as forming part of the same transaction as Exhibit A and as fixing the period of payment six months after the date on which the document was executed. The first question is whether this document is receivable in evidence. If we understand Mr. Visvanatha Aiyar's argument rightly, he seemed to suggest that if Exhibits A and B are read together, the stamp duty will be payable as on a promissory note payable six Months after date. But we regard Exhibit A as containing a promise to pay and Exhibit B which is contemporaneous with Exhibit A as fixing the time for payment. That such a document is receivable in evidence is clear from the judgment of Lord Dunedin in Mota Bhoy Mulla Essabhoy v. Mulji Haridas (1915) 42 I.A. 103 : 39 Bom. 399 : 28 M.L.J. 389. In that case there was a promissory note for Rs. 50,000, and there was also a contemporaneous oral agreement that the document should not be sued on but that another document should be given for the amount. The suit was brought on the promissory note. The Judicial Committee differing from the Courts below held that this agreement which had the effect of substituting a new contract for the promissory note, could be pleaded in defence and was receivable in evidence. The principle of the decision is applicable to the present case. It is open to defendants to plead that notwithstanding the language of Exhibit A, it was agreed between the parties that the cause of action for the money was not to commence until after six months of the date of the note; further Cumming v. Shand (1860) 5 H&N; 95 points out that the custom of the trade can be read into a promissory note or Bill of Exchange, executed by a customer to the Bank. Here the printed form makes it clear that it is customary for the Bank to fix a period for payment. Therefore the promissory note must be taken to have been given subject to that proviso. To [he same effect the ruling in Brown v. North L.R. 8 Ex. p. 1 For these reasons we are of opinion that the document Exhibit B, with the endorsement thereon, is receivable in evidence.

3. If they are receivable in evidence the next question is under what article of the Limitation Act does the present suit fall. As we said at the outset, it may be open to argument whether Article 73 in terms is applicable. But we fail to see why Article 69 or Article 80 should not apply to this case. Article 69 provides for a suit upon a Bill of Exchange or money payable at a fixed time; and the 3rd column is ' when the bill or note falls due '. It was contended for the appellant that unless the promissory note itself in terms embodies this stipulation as to the period of payment, this article is not applicable. We are unable to agree with this contention. If evidence is receivable to fix the date of payment, then that would explain the contract which has been entered into and would have the effect of supplementing the contract on a matter on which it is silent and which is not in contest with the terms of the note. Similarly as regards Article 80; it is a general article which refers to all suits and promissory notes; and the 3rd column makes time commence when the, bill or note or bond becomes payable. On our veiw that Exhibit B is receivable in evidence that document makes the promissory note payable six months after the date of the execution of Exhibit A. For these reasons we are of opinion that the Subordinate Judge is right in holding that the cause of action arose six months after the execution of Exhibit A and not immediately after. We are supported in our view by the decision of a Full Bench in Annamalai Chetty v. Velayuda Nadar I.L.R. (1915) Mad. 129 although this exact point was not decided in it.

4. We dismiss the appeal with costs.


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