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Kothandaraman Chetty and ors. Vs. Shunmugam Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.608
AppellantKothandaraman Chetty and ors.
RespondentShunmugam Chetty and ors.
Cases ReferredKrishna Chandra v. Bhairab Chandra
Excerpt:
limitation act (ix of 1908), section 21, scope of - 'joint contractor', meaning of--test for determining effect of acknowledgment by third party--decree-holder, right of--exemption, grant of. - - even in that view, i fail to see how the payment by the 1st defendant can keep the liability alive against the 5th defendant. in cases where the liability is several, it will have to be established clearly that the persons to be bound allowed themselves to be represented by the person who makes the part-payment. exceptional circumstances will have to be proved to grant any exemption from the general liability. moreover the extension of the operation of a decree over such a long period as four years must be supported by very strong circumstances......'joint contractor' in section 21 would apply to a surety. so far as the promisee is concerned, the surety's liability is co-extensive with that of the principal debtor, whatever may be the relationship inter se between the two. section 48 of the contract act, to my mind, shows by the explanation that the surety is in the position of a joint promisor. it is not necessary to be a joint promisor that the liability of both towards the promisee should be in all particulars of the same character. it is enough if the liabilities are co-extensive with that of the principal debtor. krishna chandra v. bhairab chandra 9 c.w.n. 868 do not touch this case. i, therefore, agree with the subordinate judge that the suit is barred as against the 5th defendant.3. i am, however, unable to uphold his order.....
Judgment:

Seshagiri Aiyar, J.

1. Defendants Nos. 1 and 5 executed a promissory note to the plaintiffs on the 3rd of February 1910. On the 8th of December, the 1st defendant made a part-payment. This suit was instituted on the 5th December 1913. The 5th defendant pleaded that the payment by the 1st defendant did not save limitation against him. The Subordinate Judge upheld this plea and dismissed the suit as against him. As against the 1st defendant and his sons (defendants Nos. 2 to 4) the lower Court passed a decree and allowed them to pay the amount in instalments.

2. The plaintiffs have filed this revision petition. The first contention relates to the liability of the 5th defendant. Mr. Rajagopala Chariar has addressed to me an exhaustive argument on the question. There is some dispute as to the character in which the 5th defendant signed the promissory note. The plaintiffs regarded him as a compromiser with the 1st defendant. The 5th defendant pleaded that he signed only as a surety. The Subordinate Judge without deciding the point held that the claim against the 5th defendant was barred. I am not prepared without further consideration to accede to the argument of Mr. Ganesa Aiyar that it is not open to a party who signs a document to show that he was not the principal debtor Narasimhamurthi Sastry v. Ramaswamy Chetty (1913) M.W.N. 336 lends some support to this contention. But in Venkatasubbiah Chetty v. Govindarajulu Naidu 3 M.L.T. 259 it was held that a person can show that he signed a document in the capacity of an agent. I shall, therefore, decide this case on the footing that the 5th defendant was only a surety. Even in that view, I fail to see how the payment by the 1st defendant can keep the liability alive against the 5th defendant. Section 4 of Act XIV of 1859 enacted that if more than one person was liable for a debt, none of them shall become chargeable 'by reason only of a written acknowledgment signed by either of them.' Part-payment stands on the same footing. The principle was thus recognised that one of the promisors should not by his individual act render his compromiser liable. The Limitation Act of 1871 referred specially to the cases of several partners or executors. In the Act of 1877, the provision was extended to joint contractors and mortgages. These extensions must be regarded as illustrations of the general principle enunciated in the Act of 1859. I cannot accept the contention of the learned Vakil for the petitioners that the proviso in Section 2l of the Act is exhaustive of the persons for whose benefit the protection was intended. The test in each case will be whether the person who keeps alive the debt had express or implied authority to act on behalf of those against whom limitation is to be arrested. In cases where the liability is several, it will have to be established clearly that the persons to be bound allowed themselves to be represented by the person who makes the part-payment. The decision in Gopal Daji Sathe v. Gopal bin Sonu Rait 5 Bom. L.R. 1020 is directly in point, and has been followed in Sami Ayangar v. Laxmi 9 Ind. Cas. 8. I cannot regard Velayudam Pillai v. Vaithyalingam Pillai 17 Ind. Cas. 619 as throwing any doubt on the correctness of the above decisions. The English decisions to which my attention was drawn proceeded on the language of the particular Statute. I have not been shown any provision in that or any other Statute which corresponds to Section 21 of the Limitation Act. Even apart from authority, I am of opinion that the words 'joint contractor' in Section 21 would apply to a surety. So far as the promisee is concerned, the surety's liability is co-extensive with that of the principal debtor, whatever may be the relationship inter se between the two. Section 48 of the Contract Act, to my mind, shows by the explanation that the surety is in the position of a joint promisor. It is not necessary to be a joint promisor that the liability of both towards the promisee should be in all particulars of the same character. It is enough if the liabilities are co-extensive with that of the principal debtor. Krishna Chandra v. Bhairab Chandra 9 C.W.N. 868 do not touch this case. I, therefore, agree with the Subordinate Judge that the suit is barred as against the 5th defendant.

3. I am, however, unable to uphold his order regarding payment by instalments. There is absolutely no evidence on the record to show that the counter-petitioners are unable to pay the debt. Ordinarily a decree-holder is entitled to have all his remedies against a judgment-debtor. Exceptional circumstances will have to be proved to grant any exemption from the general liability. It is said that the defendants own immoveable property. If that is so, the order will have to be re-considered. Moreover the extension of the operation of a decree over such a long period as four years must be supported by very strong circumstances. I must ask the Subordinate Judge to return a finding, after taking such fresh evidence as may be tendered, whether the defendants are entitled to claim payment by instalments and if so, what is the amount of the instalment which can reasonably be enforced against them.

4. The Subordinate Judge of Trichinopoly will submit his finding within two months from the date of the receipt of records and seven days will be allowed for filing objections.

5. In compliance with the order contained in the above judgment, the Subordinate Judge of Trichinopoly submitted the following.

Finding

6. I am, therefore, unable to find that the defendants are entitled to claim payment by instalments in respect of the claim in this suit and that if they should be permitted to pay in instalments, they can afford to pay more than Rs. 7 per mensem towards the suit debt.

7. This petition coming on for final hearing to-day after the return of the finding of the lower Court upon the issue referred by this Court for trial, the Court delivered the following.

Judgment

8. I accept the finding and modify the decree of the Subordinate Judge by striking out the direction to pay the decree by instalments. Each party will bear his own costs in this Court.


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