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N. Bhaskaran Vs. PA. Sarkarai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1976)2MLJ291
AppellantN. Bhaskaran
RespondentPA. Sarkarai and ors.
Cases ReferredVenkatakrishna High School v. Rangaswami Iyer
Excerpt:
- .....in the following issues framed by the trial court:1. whether the plaintiff is entitled to the suit mortgage amount?2. whether the release deed referred to in para. 5 of the plaint is true and valid?3. whether the suit is in time, and whether the plaintiff is entitled to the exemptions as claimed in para. 8 of the plaint?4. whether the plaintiff has given credit to rs. 2000 pleaded by the defendants 1 and 2?5. what is the correct amount due to the plaintiff?6. to what reliefs are the parties entitled?an additional issue was framed on 22nd february of 1969 to the following effect:whether the adjustment pleaded by the plaintiff is true, correct and valid? since i am upholding the dismissal of the suit on the ground that it was barred by limitation, i am not going into the details as to.....
Judgment:

M.M. Ismail, J.

1. The plaintiff in O.S. No. 379 of 1967, on the file of the Court of the Subordinate Judge, Erode, is the appellant herein.

2. The appellant is the son of one A.B. Nagaraja Aiyar, the mortgagee under Exhibit A-1, dated September, 1952, executed by one N.T. Perumal Gounder, the deceased husband of the second respondent-second defendant, for a sum of Rs. 7,500. The first respondent first defendant is stated to be a foster son of the said Perumal Gounder. The mortgage deed provided that the amount secured under the document, viz., Rs. 7,500 was payable on the expiry of three years from the date of the mortgage. The suit itself was instituted on 15th November, 1967. In the plaint, by way of explaining the delay in claiming exemption from the bar of limitation, the appellant stated in paragraph 8:

Cause of section for the suit arose on 7th September, 1962, when the mortgage was executed at Satyamangalam, on 7th September, 1955,when the three year period fixed under the mortgage for redemption expired, on 5th November, 1957 when the two months period fixed under Section 80, Civil Procedure Code, expired within the jurisdiction of this Court. The suit is not barred by limitation as the period of two months fixed under Section 80, Civil Procedure Code, has to be excluded in computing the period of limitation.

The plaint proceeded to state further in the same paragraph.

Even if it is found that the subsequent mortgage is already discharged and hence third defendant is not a necessary party, the suit is not barred by limitation as defendants 1 and 2, being agriculturists, a period of 1 year 6 months and 26 days has to be excluded in computing the period of limitation under Madras Ordinance V of 1955, Madras Act V of 1955 and Madras Act I of 1955, and the suit is not barred by limitation.

Reliance on Section 80, Civil Procedure Code, requires explanation. According to the appellant, the encumbrance Certificate obtained by him with regard to the property mortgaged under Exhibit A-1 disclosed the existence of an encumbrance in favour of the State Government and therefore, he issued a notice under Section 80, Civil Procedure Code, and the period of notice provided for in Section 80, Civil Procedure Code, has to be excluded. It is alternatively only, he relies upon the three enactments referred to viz., Ordinance V of 1953, Act V of 1954 and Act I of 1955.

3. The defendants-respondents raised several defences and they are reflected in the following issues framed by the trial Court:

1. Whether the plaintiff is entitled to the suit mortgage amount?

2. Whether the release deed referred to in para. 5 of the plaint is true and valid?

3. Whether the suit is in time, and whether the plaintiff is entitled to the exemptions as claimed in para. 8 of the plaint?

4. Whether the plaintiff has given credit to Rs. 2000 pleaded by the defendants 1 and 2?

5. What is the correct amount due to the plaintiff?

6. To what reliefs are the parties entitled?

An additional issue was framed on 22nd February of 1969 to the following effect:

Whether the adjustment pleaded by the plaintiff is true, correct and valid? Since I am upholding the dismissal of the suit on the ground that it was barred by limitation, I am not going into the details as to the different findings recorded by the learned Subordiante Judge on the various issues already extracted.

4. I have already referred to the fact that the mortgage is dated 7th September,1952 and the period prescribed for the payment of the amount was three years, which would take us to 7th September, 1955 and therefore, the suit should have been instituted within 12 years therefrom i.e., on or before 7th September, 1967. The suit was actually instituted on 15th November, 1967. In this context, the question for consideration is whether the two grounds of exemption for the purposes of limitation claimed by the appellant were available to him, or not. As far as the first ground is concerned, it was found by the trial Court that even before the institution of the suit, the debt due to the State Government had been discharged; Therefore, it is clear that the first ground of exemption was not available. Independently of this also, the first ground was not available for another reason as well. As I pointed out already, the suit should have been instituted on 7th September, 1967 and the requirement of a notice under Section 80, Civil Procedure Code, will only add a period of two months to that period of limitation, which would take the appellant to 7th November, 1967 and the suit was actually instituted onl5th November, 1967. On that ground also, the appellant could not claim the benefit of the notice period under Section 80, Civil Procedure Code.

5. That takes us to the second ground of exemption claimed by the appellant. The complaint of Mr. T.R. Mani, the learned Counsel for the appellant, is that the trial Court has dealt with the claim for exemption with regard to the period of limitation based on Madras Act I of 1955, and that it has nQt dealt with the claim based on the other two enactments viz., Madras Ordinance V of 1953 as well as Madras Act V of 19 54. As far as Madras Act I of 1955 is concerned, the term 'agriculturist' has been defined in Section 2 (a) as meaning:

A person who has an interest other than interest as a simple mortgagee in any agricultural or horticultural land not being a land appurtenant to a residential building, but shall not include-

(i) any person liable to pay land revenue (which shall be deemed to include peshkush and quit-rent) exceeding one hundred and fifty rupees per annum in any year after 1952-53....

The learned Subordinate Judge has re corded a finding that by virtue of this provision with regard to the payment of land revenue exceeding Rs. 150 per annum, defendants 1 and 2 did not fall within the definition of 'agriculturist' and therefore, the benefit of Madras Act I of 1955 was not available to them. Mr T.R. Mani, did not challenge the correctness of this conclusion, However, he contended that notwithstanding this position the appellant was entitled to the exclusion of time provided for in Madras Ordinance V of 1953 as well as Madras Act of 1954. Now, I shall consider this contention.

6. Madras Ordinance V of 1953 defined the term 'agriculturist' in Clause 2(a) as meaning:

any person, not being an incorporated company or a registered firm, regularly engaged in the cultivation of land to the possession of which he is entitled or out of the produce of which he is entitled to be maintained.

Section 3 of this Ordinance stated:

No suit for recovery of a debt shall be instituted, and no application for the execution of a decree for payment of money passed in any such suit shall be made, against any agriculturist in any civil Court before the expiry of a year from the commencement of this Ordinance.

Section 5 provided for exclusion of time during which the Ordinance prohibited institution of proceedings and stated:

In computing the period of limitation prescribed for a suit for the recovery of a debt or an application for the execution of a decree passed in a suit for the recovery of a debt, the time during which, the institution of the suit or the making of the application was barred by Section 3, or during which the creditor refrained from instituting the suit or making the application in the honest belief that Section 3 applied to such suit or such application shall be excluded.

This Ordinance came into force on 5th December, 1953. This Ordinance was replaced by Madras Act V of 1954 which was published in the Official Gazette on 6th February, 1954. In this Act; the expression 'agriculturist' was defined as meaning:

A person who owns an interest in land,; and who by reason of such interest, is in possession of such land or is in receipt of the rents or profits thereof and shall include a lessee; but shall include - (i) a firm registered under the Indian Partnership Act, 1932 - or a company - or a corporation - or (ii) any person who was assessed to income-tax under the Indian Income-tax Act (Central Act XI of 1922) in any of the years 1951-52, 1952-53, 1953-54.

Section 3 of this Act provided:

No suit for recovery of a debt shall be instituted, no application for the execution of a decree for payment of money passed in a suit for the recovery of a debt shall be made, and no suit or application for the eviction of a tenant on the ground of non-payment of a debt shall be instituted or made, against any agriculturist in any civil or revenue Court before the expiry of a year from the date of commencement of this Act.

The period of prohibition of institution of suits for taking other proceedings against 'agriculturist' was altered by an amendment viz., Madras Act XXXVII of 1954 by substituting the words and figures before the 1st March, 1955,' in the place of 'before the expiry of a year from the date of commencement of this Act Section 5(1) of this Act provided:

In computing the period of limitation or limit of time prescribed for a suit for recovery of a debt or an application for the execution of a decree passed in such suit the time during which the institution of the suit or the making of the application was barred by Section 3 of the Ordinance or Section 3 of this Act, or during which the plaintiff or his predecessor-in-title believing in good faith that Section 3 of the Ordinance or Section 3 of this Act applied to such suit or such application refrained from instituting the suit or making the application, shall be excluded.

Thus, it will be seen that the definition of the term 'agriculturist' is not identical in the Ordinance as well as in the Act. As a matter of fact, the definition of the term 'agriculturist' in the Ordinance is narrower than the definition contained in the Act, inasmuch as the definition of the term in the Ordinance contemplates the person concerned regularly engaging himself in the cultivation of land. In the present case, there is no case that defendants 1 arid 2 were regularly engaged in the cultivation of land, and hence the Ordinance does not apply. However, even if Ordinance V of 1953 is not applicable, still if the other requirements are satisfied, the appellant can get the benefit of Madras Act V of 1954, because the provisions of that Act tacked on to the period provided for in Section 3, the period, provided for in Section 3 of the Ordinance also. Conse quently, the real question for consideration is whether the appellant is entitled to the benefit of exclusion of time provided for in Section 5(1) of Madras Act V of 1954.

7. I have already referred to the fact that under the terms of Exhibit A-1, the mortgage, the secured amount was repayable by the mortgagor only on 7th September, 1955 and not earlier. If so, the question of the appellant filing any suit for recovery of the amount due under the mortgage before 7th September, 1955 did not arise, and could not have possibly arisen. Section 3 of the Madras Act V of 1954, was intended to save agriculturists coming within the definition of that term in that Act from being harassed by the filing of suits, and that can apply only to suits which could otherwise be filed during the period of prohibition provided for by the Act. If the creditor did not have a cause of action to file a suit, the question of such a suit being prohibited by the Act, did not arise because, such a suit was not competent and if such a suit was filed in fact, it would be dismissed on the ground that the plaintiff did not have any cause of action to institute the suit at that stage, or it was premature. As I have already printed out, the mortgage deed having provided for the repayment of the money. After the expiry of three years from the date of the mortgage, the mortgage amount became due and payable only on 7th September, 1955 and not earlier. Therefore, prior to 7th September, 1955, the appellant did not have any cause of action to file a suit for recovery of the amount. Consequently, Section 3 of the Act could not have, applied to such a suit.

8. Mr. T.R. Mani drew my attention to the definition of the term 'debt' contained in Section 2(b) of Madras Act V of 1954, and contended that that definition did not contemplate the debt being one presently payable and that included within its scope, any debt, whether payable immediately or in future. I am unable to accept this argument. No doubt, Section 2(b) of the Act defined 'a debt' as meaning-

any sum of money which a person is liable to pay under a contract, express or implied, for consideration received and includes rent in cash or kind which a person is liable to pay or deliver in respect of the lawful use and occupation of land.

Normally, debt is said to be due only after it has become payable and recoverable by the creditor. Till the debt has not become payable, it cannot be said to be due. In certain circumstances, the term 'debt' may cover a case where it is payable even in future. However, whether the term 'debt' has been used in the restricted sense of its being payable presently, or it is used in the wider sense of any debt whether payable in future or immediately, has to be ascertained having regard to the other provisions contained in the Act as well as the scheme of the Act. Having regard to the actual terms of Section 3, which prohibited institution of a suit, as well as the object of the Act, it cannot be contended that Section 3 was intended to apply to debts which had not become due and payable and with reference to which no suit could be instituted by the creditor. Therefore, a combined reading of the definition of the term 'debt' in Section 2(b) and of Section 3 as well as Section 5 clearly establishes that Section 3 will apply only to such cases where the debt has become payable and with reference to which a suit could be instituted for recovery thereof and it had no application to a debt which had not become payable and with reference to which no creditor could have filed a suit.

9. For the reasons I have indicated, the mortgage debt under Exhibit A-1 became payable only on 7th September, 1955, and therefore, the bar of suit under Section 3 of Madras Act V of 1954 as amended by Madras Act XXXVII of 1954 viz., that no suit should be instituted before the 1st March, 1955 will not apply to the suit instituted by the appellant herein, and therefore, he cannot have the benefit of the provisions contained in Madras Act V of 1954, for claiming exemption from the bar of limitation.

10. Mr. T.R. Mani, drew my attention to a judgment of this Court in Venkatakrishna High School v. Rangaswami Iyer (1961) 1 M.L.J. 91 : 74 L.W. 99. That judgment has no application to the facts of the present case, because, that dealt with the definition of the term 'debt' occurring in Section 2(b) of Madras Act I of 1955, and a suit instituted and decreed under Section 3(2) of that Act. As pointed out already, that Act docs not apply to defendants 1 and 2 herein as found by the trial Court and not challenged before me.

11. In these circumstances, the appeal fails and is dismissed. Since the appeal is being, dismissed only on the ground of limitation, I do not make any order as to costs.


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