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Brojendro Kissore Roy Chowdhury Vs. the Hindusthan Co-operative Insurance Society, Ltd. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in39Ind.Cas.705
AppellantBrojendro Kissore Roy Chowdhury
RespondentThe Hindusthan Co-operative Insurance Society, Ltd.
Cases Referred and Lewin v. Wilson
Excerpt:
limitation act (ix of 1908), section 20, schedule i, articles 65, 115 - contract act (ix of 1872), section 128--principal and surety--promissory note payable on demand--guarantee--payment of interest by principal--extension of limitation--surety, whether affected--liability of surety. - sanderson, c.j.1. this is an appeal by brojendro kissore roy chowdhury, the second defendant, against the judgment of chandhuri, j., whereby he held that the claim against the second defendant was not barred by the statute of limitations. the facts of the case are not in dispute and are fully set out in the learned judge's judgment as follows:2. this is a suit on a promissory note against defendant no. 1 as the principal debtor and no. 2 as surety. they were interested in a bank at the time the note was made and the money was apparently borrowed for it. the promissory note was executed by defendant no. 1 on the 25th april 1911, on the back of which defendant no. 2 made an endorsement on the same date, guaranteeing re-payment. the suit was instituted on the 12th november 1914. the plaint.....
Judgment:

Sanderson, C.J.

1. This is an appeal by Brojendro Kissore Roy Chowdhury, the second defendant, against the judgment of Chandhuri, J., whereby he held that the claim against the second defendant was not barred by the Statute of Limitations. The facts of the case are not in dispute and are fully set out in the learned Judge's judgment as follows:

2. This is a suit on a promissory note against defendant No. 1 as the principal debtor and No. 2 as surety. They were interested in a Bank at the time the note was made and the money was apparently borrowed for it. The promissory note was executed by defendant No. 1 on the 25th April 1911, on the back of which defendant No. 2 made an endorsement on the same date, guaranteeing re-payment. The suit was instituted on the 12th November 1914. The plaint alleges that on the 13th November 1911, defendant No. 1, with the privity and knowledge of defendant No. 2 and at his request, paid to the plaintiff Corporation Rs. 200 on account of interest on the said note. Defendant No. 1 has not appeared, but defendant No. 2 denies the allegation and submits that the suit is barred by the Statute of Limitations.

3. The plaintiffs have proved payment of Rs. 200 as interest by the defendant No. 1 on the 13th November 1911. They have further proved that the defendant No. 2 knew about such payment. It appears that the Medical Secretary and Treasurer of the plaintiff Corporation was under the impression that defendant No. 1 had not paid any part of the principal and interest on the loan, and complained about it to defendant No. 2, saying that the Society could not wait but must sue. Defendant No. 2 thereupon told him, about the middle of December 1911, 'wait a litte. I know defendant No. 1 has paid interest on this loan.' The books were sent for and entry of a payment of Rs. 200 as interest, dated the 13th November 1911, was found, but it appeared against another loan, which had been taken by defendant No. 1. Defendant No. 2 thereupon said that he distinctly remembered being told by defendant No. 1 that he had paid Rs. 200 as interest on the loan guaranteed by him. He asked that the entry should be corrected and the correction was made in his presence. Thereafter defendant No. 1 came to the office of the plaintiff Society about the end of December 1911, and confirmed what defendant No. 2 had stated, adding that he had paid the amount as interest on the promissory note in suit, and that the office had made a mistake in crediting it against his other loan. The General Secretary of the Society says that shortly afterwards defendant No. 2, referring to this incident, 'complained to him in a half jesting way, saying that the society had tried to do him out of Rs. 200 bat he had prevented it.' In answer to his query, 'Is the matter all right now?' defendant said 'yes.' The attorney for the Society has been examined. He said that the plaint was engrossed on the 20th March 1912, and was ready to be filed, but defendant No, 2's manager had a talk with him and the plaint was kept back in consequence. Defendant No. 2 had at one time been one of the Directors of the plaintiff Society and its Treasurer, and the plaintiff Society postponed filing the suit until it became absolutely necessary. Defendant No. 2 applied for postponement of the case on the ground of ill-health, and, as he was out of town. I was prepared to issue a commission for his examination, but the application was abandoned, and the defendant has, for purposes of this case, chosen not to challenge the evidence given but submits that he is not affected by the payment of interest by the principal debtor, even if it be assumed that he consented to such payment and had knowledge of it.

4. The first question which arises is as to the correct meaning of the contract entered into by the defendant.

5. The contract of the principal debtor H.P. Ghose was on the promissory note to pay on demand the sum of Rs. 4,000 and interest at the rate of 2 per cent, per annum, and the second defendant signed an endorsement on the promissory note: 'Re-payment guaranteed by me.' This, in my judgment, must be treated as a contract of guarantee by the second defendant, and it was not disputed that, in its interpretation, regard must be had to the terms of Section 126 of the Contract Act of 1872.

6. The learned Counsel for the respondent admitted that a demand upon the surety was not necessary under this contract, but argued that his liability did not arise until default was made by the principal debtor.

7. Having regard to the wording of the appellants' undertaking and Section 126 of the Contract Act, in my judgment this is the correct interpretation, and the next question, therefore, to be considered is, when did default by the principal debtor occur.

8. The learned Counsel for the respondent argued that, though it was not possible to specify the exact date of the principal debtor's default, the evidence in the case showed that it could not have been before the middle of December 1911, when the incident referred to in the learned Judge's statement of facts occurred.

9. In my judgment this contention should not be adopted.

10. The promissory note being payable on demand, there was a present debt, which was payable without any demand.

11. In Norton v. Ellam (1837) 2 M. & W. 461 ; 1 M. & H. 69 ; 1 Jur 433 ; 6 L.J. Ex. 121 ; 46 R.R. 646 ; 150 E.R. 339 the note was one payable with interest on demand, and the question was from what time the Statute of Limitations began to run, and at page 464 Baron Parke says: 'I entertain no doubt at all on this point. It is the same as the case of money lent payable upon request, with interest, where no demand is necessary before bringing the action. There is no obligation in law to give any notice at all; if you choose to make it part of the contract that notice shall be given, you may do so. The debt which constitutes the cause of action arises instantly on the loan. Where money is lent simply, it is not denied that the Statute begins to run from the time of lending. Then is there any difference where it is payable with interest? It is quite clear that a promissory note, payable on demand, is a present debt, and is payale without any demand, and the Statute begins to run from the date of it. Then the stipulation for compensation in the shape of interest makes no difference, except that thereby the debt is continually increasing de die, in diem. It is quite different from the case of a note payable at sight, because there, by the terms of the contract, it must be shown before the action is brought.'

12. This is the English Law, and in my judgment it is the same here, and this is recognised by the provision in the Statute of Limitations, Article 73, which provides that in the case of a promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue, the period of limitation begins to run from the date of the note.

13. There is some evidence that originally the advance was intended to be for two or three days (see the letter of 25th April 1911) and it is obvious that by the consent of the parties it was allowed to run on for much longer, but there was no qualification of the promise to pay on demand contained in the note,

14. The debt, therefore, of the principal debtor arose as soon as the advance was made and the promissory note was signed and the debtor was 'in default' from the date of the promissory note.

15. Now it being admitted that a demand was not necessary to create the surety's liability, but that the surety was liable when default was made by the principal debtor, it follows, in my judgment that in this case the liability of the surety on the guarantee accrued from the date of the promissory note.

16. In the case of a debt, as soon as the day of payment arises, the default of the principal debtor is complete, and the surety, apart from special stipulation, is immediately liable to the full extent of his obligation, without being entitled to notice, and the reason of the rule is, that it is the surety's duty to see that the principal pays his debt.

17. The next question is, what Article of the Limitation Act applies to the case of the surety. In my judgment it must be either Article 65 or Article 115 and, for the purpose of this case, I do not think it matters which, is applied. If 65 is applied, the period would run from the happening of the specified contingency, viz., the default of the principal debtor, or, if 115 applies, the period would run from the time when the contract of guarantee was broken, viz., the failure to re-pay the money on the default of the principal debtor.

18. In my judgment, therefore, unless the Statute of Limitations is prevented from running in the case of the surety by the payment made by the principal debtor on the 13th November 1911, the suit, which was brought on the 12th November 1914, is barred in the case of the defendant No. 2.

19. The next question, therefore, is, whether by reason of such payment a fresh period of limitation is to be computed, as far as the surety is concerned, from the time when the payment was made.

20. This depends upon Section 20 of the Limitation Act. The words of that section, so far as it applies to the present case, are: 'Where interest on a debt...is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt... or by his agent duly authorised in this behalf,...a fresh period of limitation shall be computed from the time when the payment was made.'

21. Now although the payment of interest by the principal debtor on the 13th November 1911 was undoubtedly made with the knowledge and consent of the surety, and it may be at his request, there is no evidence in my judgment that such payment was made on behalf of the surety. The point, therefore, to be considered is whether in consequence of the payment of the interest by the principal debtor, by itself a fresh period of limitation is to be computed from the time of such payment in the case of the surety.

22. In England the principle on which the effect of the Statute of Limitations was held to be avoided by the payment of principal or interest is that such payment is an acknowledgment of the existence of the debt from which is implied a new promise to pay the residue or the principal, as the case may be; and, therefore, it is obvious that a payment by one person, unless the circumstances are such that it must be regarded as a payment for another, cannot keep alive the remedy against that other, and there would seem to be nothing in the relation of principal and surety itself which makes payment by the principal binding as payment by the surety.

23. The question, however, is whether Section 20 of the Limitation Act has extended and amplified the effect of the payment by the principal debtor so as to keep alive the remedy against the surety.

24. It was argued that the words of the Statute are simply 'a fresh period of limitation shall be computed from the time when the payment was made' and that the Statute does not confine the fresh period to the case of the person by whom the payment was made, but that the words are quite general; and reliance was placed on the judgment of Maclfpp, C.J., in Domi Lal Sahu v. Roshan Dobay 33 C. 1278 ; 11 C.W.N. 107, where he says as follows: 'it is contended that the section only creates a new period of limitation as against the person actually paying the money, and that as the respondent had purchased before this payment was made, the new period of limitation cannot take effect as against him. There is nothing in the language of the section to support that view, and there is nothing to warrant us in introducing words into the section which would authorise that view. The words of the section are general and plain. When the Legislature intends that a fresh period of limitation is to operate as against certain persons only, it says so in distinct terms: see Section 18 of the Act. There is nothing in the section to indicate that the extension is only to operate against the person making the payment.'

25. The facts of that case differed materially from those existing in the present case and the judgment must be read having regard to the facts of the case, and being so read that case in my judgment does not cover the present case: In Domi Lal Sahu v. Roshan Dobay 33 C. 1278 ; 11 C.W.N. 107 there was only one debt in question, viz., the mortgage debt, and inasmuch as the mortgagor had made payments to the mortgagee, it was held that such payments affected not only the mortgagor, but the respondent who was the purchaser of the equity of redemption and who of course claimed through the mortgagor.

26. In the present case there were in my judgment two debts, viz., that of the principal debtor and that of the surety: see In re Powers, Lindsell v. Phillips (1885) 30 Ch. D. 291 per Cotton, L.J. at p. 295 ; 53 L.T. 647, The same view was taken by Jenkins, C.J., in Gopal Daji v. Gopal 28 B. 248 ; 5 Bom. L.R. 1020.

27. In my judgment the fresh period of limitation created under Section 20 by the payment of interest by the principal debtor can be only in respect of the debt upon which the interest was paid, viz., the debt of the principal debtor. The fact that the interest was paid with the knowledge and consent of the surety and even at his request, makes no difference, unless the circumstances could be said to render the payment one on behalf of the surety, and in this case they do not.

28. Reliance was placed upon section 128 of the Contract Act. The section is as follows: 'The liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract.'

29. It was argued that inasmuch as the period of limitation had been extended by the payment of interest in the case of the principal debtor, it was also extended in the case of the surety, and that 'co-extensive' applied not only to 'quantum' but also to time.

30. In my judgment Section 128, which is in the nature of an interpretation clause and is directed to defining the liability of a surety upon the terms of a contract of guarantee, was not intended to affect the application of the Statute of Limitations.

31. In my judgment the appeal should be allowed and judgment should be entered for the second defendant with costs in this Court and the Court of first instance.

Mookerjes, J.

32. This is an appeal by the second defendant in a suit for recovery of money due on a promissory note executed by the first defendant on the 25th April 1911. The note was in these terms:

On demand I promise to pay the Hindusthan Co-operative Insurance Society, Ltd., or order the sum of rupees four thousand only together with interest thereon at the rate of 9 per cent, per annum for value received. Hemendra Prasad Ghose.

33. On the back of the note, the second defendant wrote as follows: 'Re-payment guaranteed by me. B. K. Roy Chaudhuri.'

34. On the 13th November 1911, the principal debtor paid Rs. 200 to the creditor on account of interest then due. The sum was at first credited by mistake to another transaction, but the error was rectified on the 14th December 1911. On the 12th November 1914 the plaintiff instituted the present suit against the principal debtor and the surety for recovery of principal and balance of interest due on the promissory note. The first defendant did not enter appearance. The second defendant pleaded the bar of limitation. Mr. Justice Chaudhuri has overruled this contention and has decreed the suit against both the defendants. On the present appeal by the surety, the objection has been reiterated that the claim against him is barred by limitation.

35. To determine the question in controversy, we have to ascertain which Article of the First Schedule to the Indian Limitation Act governs this case. The only Articles which have any possible application are those numbered 65 and 115. Article 65 provides that a suit for compensation for breach of a promise to do anything at a specified time or upon the happening of a specified contingency must be instituted within three years from the date when the time specified arrives or the contingency happens. Article 115 provides that a suit for compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for, must be instituted within three years from the date when the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or where the breach is continuing, when it ceases. There has been some divergence of judicial opinion upon the question, whether Article 65 is applicable to a suit against a surety for recovery of money on his contract of guarantee. Hill, J., in the case of Sreenath Roy v. Peary Mohan Mookerjee, 39 Ind. Cas. 205 ; 25 C.L.J. 91 ; 21 C.W.N. 479 held that the Article was applicable; the Court of Appeal (Petheram, C.J., Prinsep and Piggott, JJ.), on the other hand,ruled that Article 115 and not Article 65 was applicable. The point, however, was really immaterial in the circumstances of that case, as the claim against the surety was bound to fail whether the one Article or the other was applied. It may be mentioned that the recent case of Dwarkadoss v. Chivokala Krishnaiya 9 Ind. Cas. 204 ; 21 M.L.J. 457 ; 9 M.L.T. 215 ; (1911) 1 M.W.N. 41 is an authority Tor the proposition that Article 65 governs a suit of this description. For the purposes of the present case, it is not necessary to make a choice between Article 65 and Article 115, because, whichever Article is applied, the time is found to run in favour of the surety from the same date, and the period applicable is also the same in both cases. Under Article 65, we have to determine the specific time' at which the surety promised to pay; under Article 115, we have to determine the time when there was a breach of contract on the part of the surety. Consequently, from either point of view, the question is, what was the precise nature of the guarantee embodied in the expression 're-payment guaranteed by me.'

36. Section 126 of the Indian Contract Act defines a contract of guarantee as a contract to perform the promise or discharge the liability of a third person in case of his default. The question accordingly arises, when was the principal debtor in this case in 'default.' Under the Law of England, it is well settled that a note payable on demand is a present debt and is due and payable at once without demand. In Norton v. Ellam (1837) 2 M. & W. 461 ; 1 M. & H. 69 : 1 Jur 433 ; 6 L.J. Ex. 121 ; 46 R.R. 646 ; 150 E.R. 339 Baron Parke observed that the debt which constitutes the cause of action arises instantly on the loan, so that the contract on the note is in a state of being broken perpetually if the party does not pay it. Baron Alderson added that the cases which have decided that the bringing the action is a demand, show that there has been a previous breach. It follows that on a note payable with interest on demand, the Statute of Limitations begins to run from the date of the note. To the same effect is the observation of Bayley, J., in Rowe v. Young (1820) 2 Brod. & B 165 ; 2 Bligh 391 ; 129 E.R. 921 ; 22 R.R. 662: If a man make a note payable on demand, it is settled by law that a special demand need not be stated in the declaration not proved upon the trial.' In Maltby v. Murrells (1860) 5 H. & N. 813 at p. 823 ; 29 L.J. Ex. 377; 2 L.T. 302 : 120 R.R. 83 ; 157 E.R 1405 Baron Channel emphasised this by the observation : 'No demand is necessary before bringing an action upon such a note--its payment is a duty which attaches the moment the note is made.' See also George In re, Fraicis v. Bruce (1890) 44 Ch. D. 627 ; 59 L.J. Ch. 709 ; 63 L.T. 49 ; 38 W.R. 617. This principle finds recognition in Article 73 of the Indian Limitation Act, which provides that the time for the institution of a suit on a promissory note, payable on demand and not accompanied by any writing restraining or postponing the right to sue, runs from the date of the note. [See also Perumal Ayyan v. Alayirisami Bhagavathir 20 M. 245 ; 7 M.L.J. 222 ; 7 Ind. Dec. (N.S.) 174, where the correct conclusion is based on the doubtful ground that the words on demand' must be regarded as a technical expression equivalent to 'immediately' or forthwith.'] From this point of view, it is obvious that in the present case the liability of the surety accrued on the execution of the note by the principal debtor, and, consequently, as between the surety and the creditor, the Statute of Limitations commenced to run in favour of the surety from the date of the promissory note when he became liable to re-pay to the creditor the sum advanced. This conclusion is in conformity with the principle deducible from the cases of Roll v. Hadley (1835) 2 Ad & E. 758 ; 4 L.J.K.B. 126 ; 4 N, & M. 515 ; 111 E.R. 292 and Colvin v. Buckle (1841) 8 M. & W. 680 ; 11 L.J. Ex, 33 ; 58 R.R. 834 ; 151 E.R. 1212. It necessarily follows that the claim against the surety is prima facie barred by limitation under Article 65 or Article 115, unless one or other of the provisions comprised in Part III of the Indian Limitation Act is applicable. The only provision on which reliance has been placed, on behalf of the plaintiff, to save the claim from the bar of limitation is that contained in Section 20.

37. Section 20(1) of the Indian Limitation Act--we quote only so much thereof as has any possible application to the case before us--is in these terms: Where interest on a debt...is, before the expiration of the prescribed period, paid as such by the person liable to pay. the debt...or by his agent duly authorised in this behalf...a fresh period of limitation shall be computed from the time when the payment was made' This must be read subject to the provisions of section 21(2), which lays down that nothing in Section 20 renders one of several joint contractors chargeable by reason only of a payment made by any other or others of them; this section apparently indicates the only cases in which and the conditions under which the Legislature allows the running of the period as against one person to be affected by the acts of another person, and the case of principal debtor and surety is not expressly or impliedly included in the section [see the observations of Westrop, C.J., in Hajarimal v. Krishnarav 5 B. 647 at p. 652 ; 6 Ind. Jur. 139 ; 8 Ind. Dec. (N.S.) 426 ]. The plaintiff seeks to avail himself of the benefit of Section 20 by proof that, in this case, the principal debtor did, on the 13th November 1911, before the expiration of the prescribed period for the institution of a suit by the creditor to recover the money, pay interest thereon with the result that the creditor became thereupon entitled to a fresh period of limitation from the date of the payment. Stress has been laid upon the generality of the expression fresh period of limitation shall be computed' as used in Section 20(1), and reference has been made in this connection to the observations of Maclean, C.J., in Domi Lal Sahu v. Boshan Dobay 33 C. 1278 ; 11 C.W.N. 107 [see also Coope v. Gresswell (1866) 2 Eq. 106 at p. 118 ; 35 L.J. Ch. 496 ; 14 L.T. 262 ; 14 W.R. 568 ]. The argument of the plaintiff in substance is that the fresh period runs not merely against the principal debtor who makes the payment, but also against the surety; this view is sought to be fortified by the contrast between the phraseology of Section 20 and Section 18; in the latter case, the period is extended only as against the party guilty of the fraud. This contention seems at first sight well-founded, but, upon closer scrutiny, must be rejected as fallacious. It is plain that the expression 'fresh period of limitation' has reference to the institution of a suit for recovery of the 'debt' mentioned previously. The question thus arises, is the debt of the principal debtor identical with the debt of the surety. If there is only one debt, the view may well be maintained that payment of interest by the principal debtor keeps alive the remedy against him as also against the surety. But if the debts must be deemed distinct, the payment of interest by the principal debtor cannot, notwithstanding the generality of the language of the section, extend the period of limitation for the institution of a suit for recovery of the debt of the surety. In my opinion, the true view is that though the liabilities of the debtor and the surety arise out of the same transaction, the liabilities of the two persons are distinct; their debts are distinct for purposes of the application of Section 20. This was the view adopted by Jenkins, C.J., in Gopal Daji v. Gopal 28 B. 248 ; 5 Bom. L.R. 1020, and by Rahim, J., in Sami Aiyangar v. Laxmi 9 Ind. Cas. 8 ; 21 M.L.J. 455 ; 9 M.L.T. 203, and I accept the position as well founded on principle: Maddox v. Duncan (1898) 143 Mo. 613 ; 41 L.R.A 581; 65 Am, St. Rep 678, Ross v. Jones (1874) 22 Wallace 576 ; 22 Law. Ed. 730. It may further be observed that the surety, under the terms of the contract, is either jointly or separately liable, along with the principal debtor; if the debts are deemed joint, Section 21(2) shews that payment by one of them (the debtor) does not extend the time as against the other; on the other hand, if the debts are deemed distinct, the same result follows upon a true construction of Section 20 itself. Section 128 of the Indian Contract Act, which makes the liability of the surety co-extensive with that of the principal debtor, is of no assistance to the plaintiff, as it must be read along with the provisions of the Indian Limitation Act; it defines the measure of the liability, and has no reference to the extinction of liability by operation of the Statute of Limitations. It is plain that the view we take of the true effect of Section 20 accords with the well-known principle which underlies the rule that the period of limitation is extended by part payment of principal or payment of interest. The true foundation of this doctrine is that any such payment is an acknowledgment of the existence of the debt, and from it the law raises an implication of a promise to pay the residue or the principal, as the case may be: Morgan v. Rowlands (1872) 7 Q.B. 493 ; 41 L.J.Q.B. 187 ; 26 L.T. 855 ; 20 W.R. 726, Green v. Humphreys (1884) 26 Ch. D. 474 ; 53 L.J. Ch. 625 ; 61 L.J. 42, Boswell In re Merritt v. Boswell (1906) 2 Ch. 369 at p. 866 ; 76 L.J. Ch. 234 94 L.T. 243 ; 22 T.L.R. 247. Consequently, it is fairly obvious that a payment by one person cannot keep alive the remedy against another [ Astbury v. Astbury (1898) 2 Ch. 111 at p. 118 ; 67 L.J. Ch. 471 ; 78 L.T. 494 ; 46 W.R. 636 ], unless the circumstances are such that payment by the one may be regarded as a payment for the other. There is nothing in the relation of principal and surety itself which makes payment by the principal binding as a payment by the surety: Gockrill v. Sparkes (1863) 1 H. & C. 699 ; 32 L.J. Ex. 118 ; 9 Jun. (N.S.) 307 ; 7 L.T. 752 ; 11 W.R. 428 ; 158 E.R. 1065 ; 130 R.R. 739, Wolmershausen In re, Wolmershausen v. Wolmershausen (1890) 62 L.T. 541 ; 38 W.R. 537, Benton v. Paddison (1893) 68 L.T. 405 ; 3 R. 450. In the case before us, there is, besides, no evidence to show that the payment by the principal debtor was in any sense a payment by the surety. There is thus no room for application of the principle, which has sometimes been recognised, that payment of interest by the principal debtor, with the knowledge and consent of the surety, extends the period of limitation as to both: Nichols v. Porter (1906) 181 Ind. 332 ; 103 N.E. 842, Deaton v. Deaton (1884) 109 111 (1884) 109 111 . App.7; Dwine v. Gentry (1914) 95 Nab. 150 ; 145 N.W. 350. Conversely, payment by the surety may not keep the debt alive as against the principal debtor; Suja v. Pahlwan 30 P.R. 1878, Coleman v. Forbes (1853) 22 P. St. 156 ; 60 Am. Dec. 75, Seager v. Aston (1857) 3 Jur. (N.S.) 481 ; 26 L.J. Ch. 809 ; 5 W.R. 548, Gardner v. Brooke (1897) 2 I.R. 6 ; 3 Ir. L.R. 288. The case of Hajarimal v. Krishnarav 5 B. 647 at p. 652 ; 6 Ind. Jur. 139 ; 8 Ind. Dec. (N.S.) 426, approved in Rrishto Kishori Chowdhrain v. Radha Romun Munshi 12 C. 330 ; 6 Ind. Dec. (N.S.) 225, shows that the remedy against the surety may continue, notwithstanding that the remedy against the principal debtor has become barred. The decisions in In re Powers, Lindsell v. Phillips (1885) 30 Ch. D. 291 per Cotton, L.J. at p. 295 ; 53 L.T. 647, In re Fiisby, Allison v. Frisby (1890) 43 Ch. D. 106 at p. 116 ; 59 L.J. Ch, 94 ; 61 L.T. 632 ; 38 W.R. 65 and Lewin v. Wilson (1886) 11 App. Cas. 639 ; 55 L.J.P.C. 75 ; 65, are clearly distinguishable, as they are based on the assumption that a payment by one co-debtor prevents the Statute from running against his co-debtor, a principle not recognised in Section 21 of the Indian Limitation Act. I hold, accordingly, that in this case, time commenced to run against the creditor in favour of the surety from the 24th April 1911, that a fresh period of limitation did not become available to the creditor as against the surety by reason of the payment of interest by the principal debtor on the 13th November 1911 and that, consequently, the present suit instituted on the 12th November 1914 is barred against the surety by Article 65 or 115 of the Indian Limitation Act.

38. On these grounds, I agree that this appeal must be allowed and the claim against the surety dismissed with costs throughout.


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