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Venkatachallam Pillai Vs. Krishnaswami Pathan - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in50Ind.Cas.673
AppellantVenkatachallam Pillai
RespondentKrishnaswami Pathan
Cases ReferredTricomdas Cooverji Bhoja v. Gopinath Thakur
Excerpt:
limitation act (ix of 1908), schedule i, articles 88, 97,116 - vendor and purchaser--covenant for title, breach of--indemnity bond, construction of--'vendor undertaking liability in damages against mortgage, sale, security, etc., or other disputes-loss of property owing to adverse claims--cause of action--limitation, commencement of--misrepresentation, action for--transfer of property act (iv of 1882), section 55--damages fixed by contract--cost of litigation in defending adverse claims, whether can be claimed--interest act (xxxii of 1839), section 1. - .....the date of the second appeal decree; so that, making every allowance in plaintiff's favour, the claim based on misrepresentation also fails.3. but the claim based on the indemnity bond remains. i agree with the subordinate judge that the language of the bond is wide enough to include loss caused by an adverse title being set up by third parties as was done in this case.4. the covenant talks of security, etc, muthaliathu in tamil and later on contemplates the whole property being lost which may be due to minors' suits or otherwise. the suit, so far as it is based on the bond, is within time as held by the subordinate judge. article 116 has to be applied as the bond is a registered one and not article 83. see ram dulari v. hardwari lal 48 ind. cas. 18 : 40 a.p 605 : 16 a.l.j. 706 and.....
Judgment:

Krishnan, J.

1. The Subordinate Judge has returned his findings. The suit, so far as it is based on the covenant for title is found to be barred by limitation and that is not disputed. So far as it is based on misrepresentation, the claim would also be barred. For, even assuming that Article 95 applies, as held in Punnayil Kuttu v. Raman Nair 31 M.P 230 : 18 M.L.J. 19 : 4 M.L.T. 80 to such a claim, the suit was brought more than 3 years after the date of the second appeal decree; so that, making every allowance in plaintiff's favour, the claim based on misrepresentation also fails.

3. But the claim based on the indemnity bond remains. I agree with the Subordinate Judge that the language of the bond is wide enough to include loss caused by an adverse title being set up by third parties as was done in this case.

4. The covenant talks of security, etc, muthaliathu in Tamil and later on contemplates the whole property being lost which may be due to minors' suits or otherwise. The suit, so far as it is based on the bond, is within time as held by the Subordinate Judge. Article 116 has to be applied as the bond is a registered one and not Article 83. See Ram Dulari v. Hardwari Lal 48 Ind. Cas. 18 : 40 A.P 605 : 16 A.L.J. 706 and Parvataneni v. Lanka Rambrahman 47 Ind. Cas. 924 : 35 M.L.J. 124 : 8 L.W. 142 : 24 M.L.T. 104 The same view has been taken in suits for rent under registered lease-deeds, though there is a special Article about rent, Article 110, Tricomdas Cooverji Bhoja v. Gopinath Thakur 39 Ind. Cas. 156 : 44 C.P 759 : 1 P.L.J. 262 : 15 A.L.J. 217 : 25 C.L.J. 279 : 32 M.L.J. 357 : 21 M.L.T. 262 : 21 C.W.N. 577 : (1917) M.W.N. 368 : 5 L.W. 654 : 19 Bom. L.R. 450 : 44 I.A. 65 The claim on the indemnity bond must, therefore, be allowed.

5. The bond, however, provides for a payment of Rs. 100 only and I do not see how plaintiff can claim to be paid the costs of his litigation over and above that amount. It is, however, claimed that interest should be allowed. The money became payable on the date of the second appeal decree and it was a sum certain payable under a written instrument. It seems to me, therefore, that interest could be allowed under the Interest Act if not otherwise. I, therefore, allow 'per cent' interest on the amount.

6. The decree of the lower Court will, therefore, be modified by reducing the amount of decree to Rs. 136 and further interest as allowed by the lower Court with proportionate costs to each party in both Courts.


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