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Narna, Minor by Father and Guardian Vittappa Shanbhoga, Legal Representative of the Deceased Plaintiff, Bhagirathi Amma Vs. Ammani Amma - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtChennai
Decided On
Reported in35Ind.Cas.418; (1916)31MLJ865
AppellantNarna, Minor by Father and Guardian Vittappa Shanbhoga, Legal Representative of the Deceased Plainti
RespondentAmmani Amma
Cases ReferredHemp v. Garland
Excerpt:
- - if the claim is for the enhanced interest, it can well be argued that that became due when the first default was committed. 3. it is a well settled principle of law that no one is obliged to take advantage of a forfeiture, section 4 of 3 and 4 william iv chap. but that which was optional on the part of the plaintiff would not affect the right of the defendant, who might well consider the action as accruing from the time that the plaintiff had a right to maintain it......fall into arrears, i shall pay the principal sum together with interest at 12 per cent. from the date of default till the date of payment without raising the plea of future 'instalment on the liability of the mortgage property.' we read this clause as entitling the mortgagee to the original rate of interest only, if he does not desire to enforce the clause for enhanced interest, but that should he claim the higher interest on account of the default in the punctual payment of the ordinary rate, he shall be entitled to sue. for the principal sum also without waiting for the due date. in other words, an option is reserved by the clause above referred to, to the mortgagee to anticipate the due date. it is not disputed that the interest was not paid as provided for. the question, therefore,.....
Judgment:

1. The suit is by the assignee of a widow on a mortgage executed in her favour. On the last occasion, we called for a finding whether the widow had any assignable interest in the debt transferred to the plaintiff. The finding returned is that the widow was competent to assign away the interest that remained due on the date of the assignment and not the principal of the mortgage debt. We accept the finding.

2. Mr. Sitarama Rao, however, raised the question that the claim is barred by limitation. The mortgage is dated the 1st November 1888. It provides for the payment of the principal on the 1st of November 1899 and for annual payment of interest at 6-1/4 per cent. per annum. There is further stipulation in the document which is in these terms: ' If I, without paying the interest on the due date and also the principal and interest on the respective due dates according to the aforesaid conditions, allow the same to fall into arrears, I shall pay the principal sum together with interest at 12 per cent. from the date of default till the date of payment without raising the plea of future 'instalment on the liability of the mortgage property.' We read this clause as entitling the mortgagee to the original rate of interest only, if he does not desire to enforce the clause for enhanced interest, but that should he claim the higher interest on account of the default in the punctual payment of the ordinary rate, he shall be entitled to sue. for the principal sum also without waiting for the due date. In other words, an option is reserved by the clause above referred to, to the mortgagee to anticipate the due date. It is not disputed that the interest was not paid as provided for. The question, therefore, is, is the mortgagee bound to take advantage of the default clause and whether limitation begins to run against him from the date of the first default? Under very similar circumstances two learned Judges of the Allahabad High Court held that the cause of action accrued on the date of the first default, whereas Bannerjee, J. held that the right to sue did not accrue until the date provided for the payment of the principal arrived. Gaya Din v. Jhumman Lal I.L.R. (1915) A. 400. We are inclined to agree with the view taken in the dissenting judgment. The article applicable to the suit is 132 and not 75. There is no warrant for importing into the former, the words of the latter. Can it be said that the money sued for became due when the first default was made if the mortgagee wants only the principal and the original rate of interest? If the claim is for the enhanced interest, it can well be argued that that became due when the first default was committed. When the creditor chooses to exercise the option which limits his claim to the ordinary interest, it would be straining the language of Article 132, to hold that his right of action accrued when the benefit which he does not choose to avail himself of might have been enforced by him.

3. It is a well settled principle of law that no one is obliged to take advantage of a forfeiture, Section 4 of 3 and 4 William IV Chap. 27. This rule has been applied to cases providing a right of entry on a forfeiture; and it has been held that the landlord should not be compelled to take advantage of the forfeiture clause, so as to make limitation run against him, if he does not choose to avail himself of it: Astley v. Earl of Essex (1874) 18 Equity 290. In a later case, Sir George Jessel, M.R. who decided the case just quoted used some very forcible language against the contention to accelerate limitation. In Magdalen Hospital v. Knotts (1876) W.N.R 5 Ch.D. 175 the learned Master of the Rolls says : ' The mere statement of such a proposition was shocking to one's intellectual perception when one considered for what objects the Statute of Elizabeth was cnacted.' It was also pointed out that a benefit secured to the creditor should not be availed of by the debtor when the former does not want it. No doubt, in the cases of Beeves v. Butcher (1891) Q.B. 509 and Hemp v. Garland (1843) 4 Q.B. 519 : 114 Eng. Rep. 994 a different view was taken. Lord Denman, C.J. says in the latter case: ' If he chose to wait till all the instalments became due, no doubt he might do so; but that which was optional on the part of the plaintiff would not affect the right of the defendant, who might well consider the action as accruing from the time that the plaintiff had a right to maintain it.' The Statute of Limitations runs from the time the plaintiff might have brought his action, unless he was subject to any of the disabilities specified in the statute; and, as the plaintiff might have brought his action upon the first default, if he did not choose to enter up judgment, we think that the defendant is entitled to the verdict upon the plea of the Statute of Limitations.' It is most probable that the language of Article 75 of the Limitation Act was borrowed from this judgment. Banning on Limitation points out that this decision does not consider the principle that no one ought to be forced to take advantage of a forfeiture. Whatever may be the effect of the learned Chief Justice's view regarding the construction of Article 75 of the Limitation Act, we see no reason for not giving the language of Article 132 its plain and natural significance. As pointed out by Bannerjee, J. the Judicial Committee in Juneswar Dass v. Mahabeer Singh (1875) I.L.R. 1 C. 163 seem to indicate that the creditor is not compellable to take advantage of a defeasance clause.

4. There have been numerous cases under Article 75. We are not concerned with them. There are two cases in this Court dealing with Article 132. In Perumal Ayyan v. Alagirisami Bhagavathar I.L.R. (1896) M. 245 : 7 M.L.J. 222 the default clause did not reserve any option to the mortgagee. On the other hand in Nettakaruppa Goundan v. Kumarasami Goundan I.L.R. (1898) M. 20 when the mortgagee was given the option of claiming the whole amount ' when he required it', the learned Judges held that the cause of action did not accrue on the date of the first default.

5. The case of Sitab Chand Nahar v. Hyder Malta I.L.R. (1896) Cal. 281 follows Hemp v. Garland (1871) 4 Q.B. 519. In all the above cases, it seems to have been taken for granted that the words of Article 75 should be imported into Article 132. We are of opinion that it would not be in consonance with the ordinary rules of interpretation of statutes to regard a specific provision in one of the articles of an Act as containing a general rule of law applicable to claims under other articles. We think the proper view is to limit the restrictive period to the particular claim provided for and to construe the language of the other articles in their natural sense. Our conclusion is that the claim is not barred by limitation and that the plaintiff is entitled to recover the sum of Rs. 150-0-0 which represents the interest due on the mortgage at 6-1/4%. The decrees of the Courts below must be reversed and a decree should be given to the plaintiff for Rs. 150 with further interest thereon at 6 per cent. per annum from the date of the plaint. The parties will pay and receive proportionate costs.


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