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Maharaj Bahadur Singh Vs. Abdul Majid and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1939Cal26
AppellantMaharaj Bahadur Singh
RespondentAbdul Majid and ors.
Cases ReferredTricomdas Cooverji Bhoja v. Gopinmath Jiu Thakur
Excerpt:
- .....75. if that be so, it is obvious that the claim to a personal decree would not be barred at the date the suits were brought, inasmuch as it was within six years from the date of the alleged breach of the bond.6. i am relieved in this case from considering whether in the view of the matter i have indicated the claim would be within time in whole or only in part, and, if the latter, in respect of how much of it, because the appellant for reasons best known to himself has not valued the appeal above rs. 200 in one case and rs. 300 in the other, so that even if i were to hold that the whole claim was within time he could not, in any event, recover more than the amount at which the appeals have been valued. the valuation is, in fact, below the amount of a single instalment payable under.....
Judgment:

Biswas, J.

1. These two appeals arise in connexion with two mortgage suits. The mortgages were in the nature of instalment bonds, and provided for repayment of the sums borrowed in annual instalments spread over a number of years, subject to a covenant that if there was default - a single default in one case and two consecutive defaults in the other - the mortgagee would be entitled to sue for enforcement of payment of the entire amounts then due. The mortgages were registered documents-one was executed on 29th September 1917 and the other on 6th October 1917. The period of repayment in the first case was from the Bengalee year 1324 to 1331, and in the other from 1324 to 1332. The last instalment according to the bonds would be due in one case in Ealgoon 1331 corresponding to March 1925, and the other in Falgoon 1332 corresponding to March 1926. If there was default in respect of either mortgage, the mortgagee became entitled to sue on the bond on the happening of such default, but he chose to wait and did not, in fact, institute the suits till 28th September 1929. Both the suits were decreed in the usual course, the preliminary decree being passed in one case on 12th May 1930, and in the other on 19th August 1931, while the dates of the final decrees were 28th April 1931 and 5th October 1931 respectively. The decrees were decrees for sale, and in due course the mortgaged properties were brought to sale. The sale proceeds were however wholly inadequate to satisfy the dues under the mortgage decrees. There was an unsatisfied balance of over Rs. 6000 in one case, and of over Rs. 4800 in the other, including interest. The decree-holder accordingly applied for a personal decree in each case for recovery of the balance due under the provisions of Order 34, Rule 6, Civil P.C. The sole question in these two -appeals is whether or not the balance was 'legally recoverable' from the mortgagors within the meaning of this Rule.

2. There is and can be no question that so far as the mortgage suits are concerned they were within time, the Article applicable being Article 132, Limitation Act. The fact that the mortgage bonds provided that the suit might be brought on the happening of a default would not make the mortgage money any the less due on the expiry of the period of repayment. Whatever doubt there might have been on this question, must now be taken to be set at rest by the decision of the Judicial Committee in Lasa Din v. Mt. Gulab Kunwar . Nor is there any question that the application for a personal decree under Order 34, Rule 6, was within time, having been made within three years from the date of the sale, that being the date when the right to apply accrued within the meaning of Article 181, Limitation Act. The sole question, as I have already stated, is whether or not the unsatisfied balance due under the mortgage decrees was legally recoverable. The test for determining whether or not the balance was legally recoverable is to see the limitation at the date of the suit. Both the suits here were instituted on 28th September 1929, and the question therefore arises whether or not on this date the mortgagee had the right to recover a personal decree against the mortgagors. Both the Courts below have decided against the mortgagee on this question, and the reason which influenced their decision seems to be that the cause of action must be deemed to have accrued not at the end of the period of repayment stipulated for in each bond, but on the occurring of the default which gave rise to a right to sue for the entire amount. In other words, it was held by the learned Subordinate Judge and the learned District Judge that the cause of action accrued at the end of Falgoon 1325 in the first case, and at the end of Falgoon 1327 in the other, and as the suits were not instituted within six years from that date, the claim to a personal decree must be held to be barred.

3. In my opinion, the Courts below did not approach the question from the correct point of view. Whether the claim would be barred or not will depend upon the particular Article of the Limitation Act applicable. It is no use entering into a discussion as to when the cause of action for the suits arose, unless the date of accrual of cause of action is made the starting point for reckoning limitation under the appropriate Article. The material question therefore is to find out the proper Article. On the face of it, Article 75 would appear to be quite apt. It refers to a suit

on a promissory note or bond payable by instalments, which provides that if default be made in payment of one or more instalments, the whole shall be due,

and the period of limitation is three years from

when the default is made unless where the payee or obligee waives the benefit of the provision, and then when fresh default is made in respect of which there is no such waiver.

4. If this Article applies, it is evident that what we ought to take note of is the date of the 'default,' and there is no question of the date of accrual of the cause of action. It may be, the two dates may coincide but that is a different matter. Now, in the present case, on the dates which I have already stated the suits were beyond three years from the date of even the last default, not to speak of the first, which entitled the mortgagee to sue for the whole amount, and the appellant does not contend that under this Article any part of his claim would be in time. It is argued however that having regard to the fact that the bonds were registered instruments the proper Article applicable will be not Article 75 but Article 116, though no doubt in terms Article 75 seems to be the most appropriate one. Article 116 speaks of a suit 'for compensation for the breach of a contract in writing registered' and provides for a limitation of six years to be reckoned from the date when the period of limitation would begin to run against a suit brought on a similar contract not registered. This takes us to the preceding Article which stands thus:

115. For compensation for the breach of | Three years. |When the contract is broken, or

any contract, express or implied, not in | |(where there are sucessive bre-

writing registered and not herein specially| |aches) when the breach in respect

provided for. | |of which the suit is instituted

| |occurs, or (where the breach is

| |continuing) when it ceases.

5. The word 'compensation' used in either of these Articles seems to be somewhat inappropriate to apply to a claim on a bond like the one here, for which there is specific provision in another part of the Schedule to the Limitation Act. But however that may be, the matter has now been settled by the Judicial Committee in the well-known case in Tricomdas Cooverji Bhoja v. Gopinmath Jiu Thakur (1916) 3 A.I.R. P.C. 182, where it was expressly held by their Lordships that though there was a specific Article dealing with suits for arrears of rent, such suits would be governed by Article 116, if they were based on registered leases. In other words, the effect of their Lordships' decision is, whether or not, where the suits are based on contracts not in writing and registered, limitation would be governed by the specific Article which provides for such cases, there can be no doubt that where the contracts are in writing and registered, the proper Article to apply would be the one providing for a longer period, namely Article 116. That was a case of a suit for arrears of rent, but it seems to me that by analogy it would be right to hold in the present case that the fact that the mortgage bonds in suit were registered documents would be sufficient to attract the operation of Article 116 rather than of Article 75. If that be so, it is obvious that the claim to a personal decree would not be barred at the date the suits were brought, inasmuch as it was within six years from the date of the alleged breach of the bond.

6. I am relieved in this case from considering whether in the view of the matter I have indicated the claim would be within time in whole or only in part, and, if the latter, in respect of how much of it, because the appellant for reasons best known to himself has not valued the appeal above Rs. 200 in one case and Rs. 300 in the other, so that even if I were to hold that the whole claim was within time he could not, in any event, recover more than the amount at which the appeals have been valued. The valuation is, in fact, below the amount of a single instalment payable under either bond. The result is that these appeals are allowed. The judgments and' decrees of the Courts below are set aside and the appellant is held entitled to a personal decree against the mortgagors-respondents for the unsatisfied balance still due, limited to the amount at which the appeals have been valued. The appellant will be entitled to his costs of the lower-Courts from the respondents. There will be? no costs of hearing in this Court.


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