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Mukyaprana Bhatta Vs. T.N. Kelu Nambiyar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1928Mad705
AppellantMukyaprana Bhatta
RespondentT.N. Kelu Nambiyar and anr.
Cases ReferredBadi Bibi v. Sami
Excerpt:
- .....to say that he is not bound to sue for the whole of the claim immediately on the operation of the default clause and thus avoid limitation, as well as order 2, rule 2. on the other hand courts seem to be of opinion that different considerations arise in the case where two suits are filed and order 2, rule 2, was relied on as a defence, as opposed to the case where only one suit was filed and limitation was relied on.5. therefore, it is unnecessary at present to discuss fully all the decisions on the question of limitation, but i will make only a few observations. so far as all those cases in which the bond contains words like ' when required 'or ' when you require ' or 'if you choose ' or thy mortgagee will be at liberty to sue,' it is easy to hold that there is strictly an option given.....
Judgment:

Ramesam, J.

1. This civil revision petition arises out of a suit in connexion with a chit fund. Plaintiff 1 is the stakeholder of the kuri. Defendant 1 who is one of the subscribers became the successful bidder-in April 1925. He then executed bond dated 13th May 1925 to secure the payment of the future instalments. Under this bond defendant 2 was added as a surety. The bond stipulates that the instalments will be payable at the rate of Rs. 20 on 23rd of each month and if any instalment is not paid on the due date the subscriber (defendant 1) will pay the amount in arrears with interest at Rs. 33-5-4 per cent. along with the next instalment amount and if default is made then also,

we and our descendants jointly and severally pay to you or your descendants in one lump sum all the previous instalments that had fallen due and the future instalments with interest at the rate from the date of default for the payment of the first instalment regardless of the fact that the future instalments are yet to fall due and the right to profits.

2. Default was committed in respect of four instalments due from June to September, and the plaintiff filed S. C.S. 567 of 1925 and obtained a decree for those instalments. We will assume (though the plaint has not been filed) that in that plaint it was stated that the plaintiff was content to sue for four instalments only and expressly reserved his right to sue for the remaining instalments. Again the defendant committed default in respect of instalments from October 1925 to February 1926, and the present suit was filed (S. C.S. 184 of 1926).

3. The District Munsif of Udipi held that the suit is barred by Order 2, Rule 2, and dismissed the suit. The plaintiff files the revision petition.

4. Mr. Seetharama Rao, the learned vakil for the petitioner, in arguing the case has called our attention to a large number of rulings. Omitting the decision Maung Sin v. Ma Tok , which relates to execution, I may roughly divide them into two classes, those bearing on the question of limitation and those in which the question is raised whether the suit is barred by Order 2, Rule 2. In one of the decisions on the question of limitation, namely Muthiah Chettiar v. Venkat Subbarayulu Naidu A.I.R. 1926 Mad. 160 two of the decisions bearing on Order 2, Rule 2, were cited and they were distinguished on the ground that they are decisions under Order 2, Rule 2, and are not authorities on the point of limitation. Adopting the same method one may say that all decisions on the question of limitation are not decisions on the question whether the suit is barred by Order 2, Rule 2, but it seems to me that if one goes into the reasoning on which the various decisions on the question of limitation are based there is something common to both. The question is whether the plaintiff has an option to say that he is not bound to sue for the whole of the claim immediately on the operation of the default clause and thus avoid limitation, as well as Order 2, Rule 2. On the other hand Courts seem to be of opinion that different considerations arise in the case where two suits are filed and Order 2, Rule 2, was relied on as a defence, as opposed to the case where only one suit was filed and limitation was relied on.

5. Therefore, it is unnecessary at present to discuss fully all the decisions on the question of limitation, but I will make only a few observations. So far as all those cases in which the bond contains words like ' when required 'or ' when you require ' or 'if you choose ' or thy mortgagee will be at liberty to sue,' it is easy to hold that there is strictly an option given to the plaintiff, though this view conflicts with the decision in Shib Dayal v. Meherban A.I.R. 1923 All. 1, and in such a case until there is an overt act on the part of the plaintiff showing his volition that he intended to take advantage of the default clause and wants the default clause to operate, the right does not arise to sue for the whole amount immediately. Such cases are for example. Kaliappa Nadar v. Sami Iyer [1921] M.W.N. 381; Lachakkammal v. Sokkayya Naick [1918] M.W.N. 586; Ramadh Bibi Ammal v. M. Kandaswami Pillai [1919] 9 M.L.W. 479; Mohideen Kariya v. P. Nayakam Pillai : AIR1925Mad233 and Velliappa Chettiar v. Venkata Subbarayalu Naidu A.I.R. 1926 Mad. 160. I have nothing to say against these decisions but there is another group of cases where without the use of such phrases, it was said the mortgagee has got an option to take advantage of the default clause. They are for example Narana v. Ammani Amma [1916] 39 Mad. 981 and P.P.B. Kunjunna Nair v. Kunjunna Nair [1911] 1 M.W.N. 79, (a case of chit fund). The seare in conflict with the decisions in Gaya Din v. Jhuman Lal [1915] 37 All. 400 and Sitap Chand v. Hyder Mulla [1897] 24 Cal. 281. I am inclined to agree with the Allahabad and Calcutta decisions and dissent from the decisions of this Court but, as I have said already, these are all decisions on the question of limitation and I do not want to pursue this point any further,

6. Coming to the question whether the suit is barred by Order 2, Rule 2, it is enough to consider the decision bearing only on this. Two decisions of the Privy Council Kishen Narain v. Pala Mal A.I.R. 1922 P.C. 412 and Muhammad Hafiz v. Muhammad Zakariya A.I.R. 1922 P.C. 23, have been mentioned by Mr. Seetharama Rao and he attempted to distinguish them. In Muhammad Hafiz v. Muhammad Zakaria A.I.R. 1922 P.C. 23, there were two clauses. Clause 2 mentions the period for the payment of principal as three years. There is no other time fixed in the bond so that unless this clause is regarded as a clause fixing the date of the cause of action for suing for principal there will be none. The earlier clause relates to payment of interest, and default of such payment gives an option to the mortgagee to sue either for the unpaid interest or for the principal and interest. It seems to me 'that if Clause 1 only is considered it is a case giving option strictly co-called to the mortgagee, but at the time when the first suit was filed the three years referred to in Clause 2 had elapsed so that both had begun to operate. Their Lordships of the Privy Council held that the second suit was barred by Order 2, Rule 2. Mr. Seetharama Rao distinguishes this case on the ground that Clause 2 makes it compulsory on the plaintiff to sue for the whole amount of the claim, principal and interest, at the time when he filed the first suit. This is true. He contends that this case ought not to be pressed against him. He contends that in the case before us the first suit is not necessarily based on the default clause, at least as far as defendant 1 is concerned. Similar remarks apply to the judgment in Kishen Narain v. Pala Mal A.I.R. 1922 P.C. 412. In that case the first stipulation was construed as one for the payment of the interest personally and not out of the mortgage property. Clause 2 relates to both payment of principal and interest put of the mortgage property. The first suit was a suit for sale and, therefore, it was a suit based on the second clause and, therefore, their Lordships hold that the suit must have been for the whole of the principal and interest and the second suit was, therefore, barred.

7. A third decision based on Section 43 is Yashvant v. Vithal [1897] 21 Bom. 267. In that case there is a distinct provision for the recovery of interest by taking possession of the mortgage property. But apart from this, the document is strictly a simple mortgage giving security without possession, for both the principal and interest. The time for payment of principal was five years and the first suit was brought after lapse of the five years. It was a suit for interest to be recovered by sale of mortgaged property. If the first suit was a suit for possession of the mortgaged property for the purpose of realizing interest only, the decision presents no difficulties, but it is a suit to recover the amount of interest by sale and one feels a difficulty why the suit should not be brought for principal and interest since the security was for both. I feel some difficulty in following that decision if similar facts arose but at present it is enough to say that the document is a special and a peculiar one and it cannot be used for any other case. I am also unable to agree with the reasoning in Badi Bibi v. Sami [1895] 18 Mad. 257.

8. In the present case the former suit was against the surety also, so that it was clearly based on the chit bond with security executed on 13th May 1925 and not on the terms of the original kuri transaction. It is rather a far-fetched suggestion to say that the cause of action was different for each defendant. Apart from this on the terms of this bond, when there are two defaults in the payment of instalments the liability of both at once follows. It does not say ' you are at liberty to recover,' but ' we and our descendants jointly and severally pay to you....' It is difficult to say how such a stipulation can give an option to the plaintiff to cut up the cause of action which has accrued to him to sue for the whole in two parts-and say:

I am content to sue for one part. I am not, compellable to sue for the other. I might sue if I like, but I will wait and bring a second suit.

9. He has got a complete cause of action for the recovery of all instalments and it is not open to him to say that he would sue for four of the instalments and reserve the suit in respect of the others for a later suit. I think that the suit is barred by Order 2, Rule 2 and dismiss this revision petition with costs.

Jackson, J.

10. I agree. In my opinion the question which arises under Order 2, Rule 2, and which does not arise under the Limitation Act, is whether the plaintiff has an option to decide that there shall be an unnecesary multiplicity of suits. In my opinion he has no such option and cannot bring suits piecemeal on the same cause of action. I agree that, under the Limitation Act, the case-law has raised a. very difficult point whether the plaintiff has really an option to decide when the cause of action has or has not accrued; but that question need not be discussed.


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