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Durga Prosad Sen Vs. Kali Charan Aichrai - Court Judgment

LegalCrystal Citation
Subject Civil; Limitation
CourtKolkata
Decided On
Reported inAIR1924Cal1065,84Ind.Cas.475
AppellantDurga Prosad Sen
RespondentKali Charan Aichrai
Excerpt:
- .....the same view is supported by section 62 of the act which makes it necessary that a promissory note payable at a certain period after sight must be presented to the maker thereof for sight; and section 64 provides that promissory notes, bills of exchange and cheques must be presented for payment to the maker, &c.; in default of such presentment, the other parties thereto are not liable therein to such holder. the exception to that section is of great value in construing the expression 'at sight' and in discovering the time import of the laws. it says that where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof. this exception applies only to promissory notes. so it is clear that a.....
Judgment:

Suhrawardy, J.

1. The suit out of which this appeal has arisen was brought on a promissory note which is worded as follows : 'Hand note on condition of payment at sight to Babu Durga Prosad Sen. On the 29th Bhadra 1324, I borrowed Rs. 2,000 for cloth business of you and another at Suchar Bandar. Afterwards owing to non-payment of that amount you have instituted suit No. 445 of 1910 in the first Court of the Subordinate Judge at Comilla. Now by amicable settlement with you on behalf of the said business (or firm) Rs. 2,000 is settled as due. Not being able to pay this amount in cash, I again to-day take this loan of Rs. 2,200 for that business. I will pay interest on this at the rate of 1 per cent, per mensem up to date of repayment.' The suit was decreed by the Court of first instance. On appeal the appellate Court dismissed it on the ground that the defendant was not personally liable. There was a further appeal to this Court and the matter was sent back to the District Judge for decision on certain matters one of which was the question of limitation. The question of limitation arises in this way : The promissory note was executed on the 31st December, 1910. The plaintiff alleged payment of interest on the 6th September, 1913, and 1st January, 1914. The suit was instituted on the 2nd January, 1917. If the payments as alleged by the plaintiffs are proved to be genuine the suit is in time. But the learned Subordinate Judge of the first Court found that the payment of the 6th September, 1913, was not sufficiently proved, but the payment of the 1st January, 1914, was clearly established. He was of opinion that time ran in the present case from the date on which the document was shown to the defendant, calculated the period of limitation from the 1st January, 1913, and held that the suit was in time. The learned District Judge in the Court of appeal below did not quarrel with those findings, but he was of opinion that under the Limitation Act time ought to run from the date of the execution of the promissory note, and since the payment of interest proved was in January, 1914, the debt had already become barred on that elate. The whole controversy gathers round the expression 'at sight' in the promissory note. It is argued by the learned senior Government pleader who appears for the appellant that 'at sight' should be taken to mean after presentation, and that the proper article of the Limitation Act applicable to this case is Article 80. The expression 'at sight' is not defined in the Limitation Act. It is an expression borrowed from the law relating to negotiable instruments. Section 21 of the said Negotiable Instruments Act (XXVI of 1881) says that the expressions 'at sight' and 'on presentment' mean on demand. The expression 'after sight' means in a promissory note, after presentment for sight. It is provided that 'at sight' means 'on demand'; and a distinction is drawn between 'at sight' and 'after sight,' the latter expression meaning 'after presentation.' The same view is supported by Section 62 of the Act which makes it necessary that a promissory note payable at a certain period after sight must be presented to the maker thereof for sight; and Section 64 provides that promissory notes, bills of exchange and cheques must be presented for payment to the maker, &c.; in default of such presentment, the other parties thereto are not liable therein to such holder. The exception to that section is of great value in construing the expression 'at sight' and in discovering the time import of the laws. It says that where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof. This exception applies only to promissory notes. So it is clear that a promissory note that is payable on demand or at sight (both expressions being synonymous under Section 21 of the Act) is governed by Article 73 of the Limitation Act, but a bill of exchange payable at sight comes under Article 70 and time runs from the date when the bill is presented. We find that there is no authority for holding that the expression 'at sight' bears a meaning different from that given in the Negotiable Instruments Act. Some assistance as to the interpretation of this expression may be obtained from a reference to Article 72 of the Indian Limitation Act. That article governs cases of promissory notes payable at a fixed time after sight or after demand - the words 'after sight' and 'after demand' in that article being obviously used in the same sense. We are accordingly of opinion that the view taken by the learned Judge as to the meaning of the expression 'at sight' is correct and time should run from the date of the execution of the promissory note, namely, the 31st December, 1910; and as the debt was barred on the 1st January, 1914, on which date the defendant made some payment towards interest the plaintiff's claim is barred by limitation.

2. There is another difficulty in the way of the plaintiff, namely, that he admitted that the defendant made some payment on the 6th September, 1913. No doubt he has not been able to prove that payment, but on his own case, the promissory note was placed before the defendant on that date. It is not necessary to consider this question further, since, we are of opinion that when a promissory note is made payable at sight, it must be taken to mean payable on demand.

3. The appeal fails and is dismissed with costs.

Duval, J.

4. I agree. In my opinion in view of Section 21 of the Negotiable Instruments Act the promissory note must be treated as one payable on demand; and as such, limitation, under Article 80 or Article 73 will be 3 years from the date of the execution of the instrument; and as there is no saving of limitation by the payment of the 1st January 1914, the suit was out of time on the 2nd January, 1917, the date on which it was instituted. I agree that the suit is barred by limitation and that the appeal should be dismissed with costs.


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