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Charu Chandra Bandopadhaya and anr. Vs. Mr. L. Faithful - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in53Ind.Cas.999
AppellantCharu Chandra Bandopadhaya and anr.
RespondentMr. L. Faithful
Cases ReferredKhwaja Muhammad Khan v. Husaini Begum
Excerpt:
contract act (ix of 1872), section 128 - limitation act (ix of 1908), schedule i, article 115--principal and surety--liability of surety, whether co-extensive with that of principal--limitation for suit against surety, commencement of. - .....nos. 3 and 4, and the only question for our consideration is whether the decision on the question of limitation is correct. i feel vary little difficulty in holding that the suit against the sureties is barred. in the case of sreenath roy v. peary mohan (1) it was held that a promissory note payable on demand is a present debt payable without any demand and that the liability of the surety in such oases arises simultaneously with that of the debtor, i. e., with the making of the advance. the liability of a surety does not necessarily in all oases arise simultaneously with that of the principal. it often happens that the remedy against the principal is barred when the liability of the surety arises. the question depends on the terms of the contract of guarantee by which the.....
Judgment:

1. In this case defendants Nos. 1 and 2 borrowed certain sum from the plaintiff on a registered promissory note payable on demand. Defendants Nos. 3 and 4 in a letter addressed to the plaintiff agreed as follows:

'My brother Shib Chandra Bandopadhaya is, for his own necessities, borrowing from yon Rs. 150. There is no objection to your paying him the money and we make ourselves fully liable for it. On that account you need have no anxiety. He will pay your interest month by month. As to that there will be no excuse or objection.'

2. The suit was instituted more than three years from the date of this letter. The lower Court overruled the plea of limitation raised by defendants Nos. 3 and 4 and decreed that suit against all the defendants. The present Rule was issued under Section 25 of the Small Cause Courts Act at the instance of defendants Nos. 3 and 4, and the only question for our consideration is whether the decision on the question of limitation is correct. I feel vary little difficulty in holding that the suit against the sureties is barred. In the case of Sreenath Roy v. Peary Mohan (1) it was held that a promissory note payable on demand is a present debt payable without any demand and that the liability of the surety in such oases arises simultaneously with that of the debtor, i. e., with the making of the advance. The liability of a surety does not necessarily in all oases arise simultaneously with that of the principal. It often happens that the remedy against the principal is barred when the liability of the surety arises. The question depends on the terms of the contract of guarantee by which the surety has bound himself. In this case, having regard to that, the liability of the sureties arose simultaneously with the making of the advance and as such the suit against them is barred under Article 115 of the Limitation Act.

3. It has, however, been argued that the contract between the debtor and the creditor being in writing registered and the sureties having rendered themselves responsible for the due performance of that contract, the Article of the Limitation Act applicable even against the sureties is Article 116.

4. In support of his contention the learned Vakil for the plaintiff who has appeared to show cause has relied on Ambalavana Pandaram v. Vaguran 19 M. 52; 5 M. L. J. 228, Sreenath Roy v. Peary Mohan (1), Sheshachala Naickar v. Varada Chariar 25 M. 55, Panchanan Das (Girish Chandra Das) v. Kunja Behari Malo I Ind. Cas. 438; 35 C. 683; 12 C. W. N. 628; 9 C. J. L. 1, Deb Narain Dutt v. Bamsadhan Mandal 20 Ind. Cas. 630; 17 C. W. N. 1143; 41 C. 137; 18 C. L. J. 603. and Challaphroo v. Banga Behary Sen 31 Ind. Cas. 394; 22 C. L. J. 311; 20 C. W. N. 408.

5. These are either cases in which it has been held that when a person has entered into a contract With another and that contract is reduced into writing and signed by one of the parties alone, the person who has not signed may sue on that contract or be sued on it, or oases in which, following the decision of their Lordships of the Judicial Committee in Khwaja Muhammad Khan v. Husaini Begum 7 Ind. Cas. 237; 32 A. 410; 14 C. W. N. 865; 7 A. L. J. 871;(1910) M. W. N.318; 8 M. L. T. 147; 12; C. L. J. 205; 12 Bom. L. R. 638; 20 M. L. J. 6l4; 37 I. A. 152 (P. C.), it has been held that where there is a contract between two persons for the benefit of a third party, the person for whose benefit the contract is entered into, though no party to i*,may proceed in equity to enforce it. In all such cases the question of limitation will no doubt depend on the nature of the contract sued upon. These cases to my mind do not touch the present question. Here there are two contracts by


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