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Natesa Chetty Vs. V.M. Subba Raya Chetty - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 620 of 1960
Judge
Reported inAIR1962Mad389
ActsIndian Contract Act - Sections 59, 60 and 61
AppellantNatesa Chetty
RespondentV.M. Subba Raya Chetty
Cases ReferredAppasami v. Morangam
Excerpt:
.....claimed in respect of the period september 1952 to february 1953. but in so far as the suit period february 1953 to february 1956 is concerned, the creditor was not disabled, from applying this amount towards those arrears. ' the trial court found on issues of fact that the defendant had failed to prove that there was a mediation and that on the date of the payment, there was still a balance die. i am not satisfied, that this decision can apply to the facts of the, present case. period is concerned, obviously this acknowledgment cannot serve to overcome the bar of limitation. when the relationship of landlord and tenant was admitted and consequently the liability to pay rent, the dispute being only with regard to the rate of rant, i am not satisfied that the mere assertion of the..........claimed in respect of the period september 1952 to february 1953. but in so far as the suit period february 1953 to february 1956 is concerned, the creditor was not disabled, from applying this amount towards those arrears.(6) the suit was laid in august 1957. undoubtedly, the arrears of rent for the period upto july 1954 would be barred by time 'unless within the period of limitation there had been an acknowledgment by the debtor of his liability in respect of that period. in ex. a. 2, there is a clear admission of the fact that the period of tenancy was from february 1953 onwards, though, the rate of rent was disputed. but what the learned counsel for the, petitioner contends in this regard is that though the period of tenancy and the liability for rent for that period were in.....
Judgment:

(1) This revision arises out of a suit for arrears of rent. In the suit, rent was claimed from 1-9-1952 to 20-2-1956. A sum of Rs. 75 claimed to have been spent by the defendant for repairs was admitted by the plaintiff who gave credit for this amount. A sum of Rs. 266-14-0 remitted by money order by the defendant on 20-2-1956 was also given credit to. The defence was that the period of tenancy commenced from 9-2-1953 and further that the rate of rent was only Rs. 12. The defendant also contended that he had completely discharged all arrears of rent due. Another sum of Rs. 12 and odd which he alleged he spent for repairs was also claimed.

(2) The suit was originally decreed. There was a revision petition and this court held that in so far as the tenancy was concerned, the period was between February 1953 and February 1956, and that the rate of rent was Rs. 15 per month. The findings of the trial court in this regard were accepted by this court. But the decree was nevertheless set aside for the reason that the Plea of the defendant that a certain part of the arrear claimed by the plaintiff in the suit was beyond the period of limitation was not examined by the lower court. In overcoming the bar of limitation. the plaintiff has relied upon certain recitals in Ex. A. 2, a registered reply sent by the defendant. What exactly was the scope of the acknowledgment Contained therein or the right of the plaintiff to appropriate and whether the appropriation was in accordance with the directions contained in Ex. A. 2 were matters which had not been considered by the trial court. Accordingly, the suit was remanded for fresh disposal. The scope of the further enquiry was limited to the issue whether the claim for rent from February 1953 to July 1954 was or was not barred by limitation.

(3) The learned District Munsif has examined this question. In the written statement of the defendant, the specific plea In this regard was that the plaintiff was not entitled to adjust or appropriate the sum of Rs. 266-14-0 towards the rent for the earlier period that had become barred by limitation, contrary to the specific intention and direction of the defendant that it was for discharge of all arrears. In application of this statement, it has to be mentioned that in the notice issued by the plaintiff to the defendant, his claim was that the defendant was in arrears born September 1952 onwards. In Ex. A. 2, the defendant admitted the tenancy only from February 1953, onwards and denied the right of the plaintiff to recover any amount prior to February 1953, and he purported to remit the sum towards the arrears from February 1953 onwards, after taking credit for certain expenses incurred by him. The computation that he made was on the basis that the rent was only Rs. 12 per month and not Rs. 15 per month. The scope of these recitals has now to be considered.

(4) Learned counsel for the petitioner defendant contends that the appropriation made by the plaintiff towards the arrears claimed prior to February 1953, cannot be allowed. In so far as that contention Is concerned, it has considerable force and has to be admitted. Leaving out the rate of the rent at present, what the defendant plainly stated in his reply notice was that he was liable for rent from February 1953, on-wards. Such a concession was made on 20-2-1956 when no part of the arrears from February 1953, onwards had become barred by limitation. The payment made by the defendant was also only in respect of the arrears from February 1953 onwards and any appropriation made by the plaintiff towards the arrears claimed by him prior to February 1953 cannot obviously be accepted. But what the learned counsel for the petitioner argues to that the sum of Rs. 266-14-0 remitted by the petitioner should be accepted in full quit of all the arrears due from February.1953 onwards. I am not satisfied that this contention can be accepted. Reliance has been placed by the learned counsel upon Bois v. Cranfield, (1850) 82 ER 677. The relevant part of that decision reads:

'If one pay money in satisfaction of an obligation, and the party to whom it is paid saith that he will receive, It for another cause, yet if he receive it, it shall be judged to be paid in satisfaction of the obligation, for he must receive it upon such terms as the other will pay it.'

Reliance has also been placed, on T.D. Foster v. R.M.A.L. Chetty Firm, 82 Ind Cas 660: AIR 1925 Rang 4. That was a case where a debtor who paid a certain sum of money with the specific direction that that should be applied to-wards a particular promissory note. The sum was received by the creditor who kept it in suspense account and later put forward an arrangement to the effect that part of the amount should be appropriated to certain other earlier promissory notes. Notwithstanding that the trial court found that this agreement was really Come to, the learned Judges of the Rangoon High Court came to the conclusion that In se, far as the legal position was concerned, the creditor was bound to apply the amount received by him In accordance with the directions which accompanied it. It would be noticed that in that particular case, there were several debts owing by the debtor to the creditor and the payment was made for application towards a specific debt.

(5) If the learned, counsel for the petitioner purports to rely upon any provisions of the Indian Contract Act, it seems to me that Ss. 59, 60 and 61 of the Act will not in terms apply. These provisions deal with cases where a debtor owes several distinct debts to a creditor and makes a payment either expressly or impliedly intimating the mode of application of the amount. These principles can hardly apply to a case where there is only a single debt which is owing. Learned counsel however purports to argue that in so far as the arrears of rent are concerned, it may be regarded as a separate debt in respect of each six month's arrear. Even assuming that this argument has substance, before the direction to appropriate in a particular manner can operate, the direction should be specified or implied in that regard. Beyond stating that lie was in arrears from February 1953 onwards and was remitting the amount towards such, arrears, there has been no other direction. At the best, it may he stated that b reason of the denial of his liability for rent for any period prior to February 1953, the creditor denied the right of the plaintiff to appropriate any part of this, amount towards the arrears claimed in respect of the period September 1952 to February 1953. But in so far as the suit period February 1953 to February 1956 is concerned, the creditor was not disabled, from applying this amount towards those arrears.

(6) The suit was laid in August 1957. Undoubtedly, the arrears of rent for the period upto July 1954 would be barred by time 'unless within the period of limitation there had been an acknowledgment by the debtor of his liability in respect of that period. In Ex. A. 2, there is a clear admission of the fact that the period of tenancy was from February 1953 onwards, though, the rate of rent was disputed. But what the learned counsel for the, petitioner contends in this regard is that though the period of tenancy and the liability for rent for that period were in fact admitted, in the notice, since there was a repudiation of any liability over and above the sum remitted, the creditor, If he accepted the amount, must be deemed to have received in full quit thereof. In support of this contention, a decision of Venkatasubba Rao J. in Appasami v. Morangam AIR 1935 Mad 371 has been relied upon. in that case, there was an acknowledgment by the debtor in these terms:

'There was on my part past liability for a larger gum. But owing to certain claims I made, the mediators fixed my debt at a reduced amount. For that sum alone I am liable, which I am remitting.'

The trial court found on issues of fact that the defendant had failed to prove that there was a mediation and that on the date of the payment, there was still a balance die. The learned Judge held that far from there being an admission, there was a distinct assertion amounting to a denial of the original amount being due and that there was no acknowledgment. this decision is relied upon in support of the argument that m against the claim made by the plaintiff in his notice, the defendant contended that he was liable to pay only the sum of Rs. 266-14-0 which he in fact remitted & that therefore there was no acknowledgment of any higher liability. I am not satisfied, that this decision can apply to the facts of the, present case.

Here, the acknowledgment was in respect of the liability arising out of the relationship of landlord and tenant and for a specified period. In so far as the liability in respect of another period or enlarged. period is concerned, obviously this acknowledgment cannot serve to overcome the bar of limitation. When the relationship of landlord and tenant was admitted and consequently the liability to pay rent, the dispute being only with regard to the rate of rant, I am not satisfied that the mere assertion of the tenant that the rate of rent was lower than that claimed by the plaintiff is sufficient under the circumstances to operate as a repudiation of liability in respect of arrears at the rate of rent as adjudicated court The acknowledgment of liability must be taken distinct from the disputed rate of tent. it should. therefore, follow that notwithstanding that the tenant alleged that the payment was to be In full quit of all arrears, that cannot destroy the right of the plaintiff to recover the proper amount due.

(7) Both the points raised on behalf of the petitioner are found against him. The petition fails and is dismissed with costs.

(8) Petition dismissed.


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