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Deutsch Asiatische Bank Vs. Hiralal Burdhan and Sons - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.122
AppellantDeutsch Asiatische Bank
RespondentHiralal Burdhan and Sons
Cases ReferredHall v. Wybourn
Excerpt:
limitation act (ix of 1908), sections 9, 15 - 'disability' and 'inability,' (sic) of--alien enemy, right of, suspension of, whether disability--applicability of section 9 to alien enemies prevented from suing--section 15, inter. - .....269 : 13 ind. dec. (n.s.) 329 (f.b.) and jivraj v. babaji 29 b. 68. it is argued, however, that an alien's right to sue is suspended in consequence of the war and revives on the restoration of peace, and, therefore, it cannot be oonstrued as 'disability.' i have very carefully considered the matter and find on reference to various cases that the suspension of such right is looked upon as a 'disability'. in the case of robinson & co. v. mannheim insurance co. (1915) 1 k.b. 155 : 84 l.j.k.b. 238 the learned judge refers to the 'disability of an alien enemy to sue' (page 100).page of (1915) 1 k.b.--ed. i also find in porter v. freudenberg (1915) 1 k.b. 873 : 84 l.j.k.b. 1001 that the expression 'disability' is used in connection with an alien enemy's right to sue. in de wahl v. braune.....
Judgment:

Asutosh Chaudhuri, J.

1. This is a suit which has been instituted by the Official Liquidator on behalf of the plaintiff Bank. The Bank, which is a German Bank, was closed on or about the 4th August 1914 immediately upon the declaration of War between England and Germany. This Liquidator was appointed on the 22nd December 1914, but the terms of appointment did not give him express power to sue. He was by that order authorised 'to liquidate the assets', which can hardly be said to include the right to sue, but by an order made on the 1st November 1915 express power was given to him to sue and this suit was instituted on 9th May 1918. It is based on four on-demand promissory notes, one dated 4th June 1914, another dated 11th June 1914 and two notes dated 30th June 1914, and would, therefore, be barred if the ordinary rule of limitation applied. It is argued on behalf of the defendant that time began to run against the plaintiff Bank from the dates of promissory notes, and that under Section 9 of the Limitation Act the time having once begun to run the subsequent disability or inability of the plaintiff to sue did not stop it. It is claimed, however, on behalf of the plaintiff Bank that inasmuch as the Bank could not sue after the declaration of war, and also inasmuch as the Official Liquidator could not sue until express power was given to him on the 1st November 1915, the period between 4th August 1914 and 1st November 1915 ought to be allowed to the plaintiff and should be excluded. This raises a novel point so far as this Court is concerned. If Section 9 of the Limitation Act is applicable to this case, there can be no question that the suit is barred. The question is, was there a subsequent 'disability' or 'inability', so far as the plaintiffs were concerned, to sue? The expression 'inability' does not occur in the Limitation Act except in this section, and so far as disability' is concerned Section 6 gives certain cases of disability, but there is no definition of the term. 'Disability' means want of legal ability. It is different from 'inability' to sue, and I think I ought to accept the interpretation which has been put upon these terms in Poorno Chunder Ghose v. Sassoon 25 C. 496 : 2 C.W.N. 269 : 13 Ind. Dec. (N.S.) 329 (F.B.) and Jivraj v. Babaji 29 B. 68. It is argued, however, that an alien's right to sue is suspended in consequence of the war and revives on the restoration of peace, and, therefore, it cannot be oonstrued as 'disability.' I have very carefully considered the matter and find on reference to various cases that the suspension of such right is looked upon as a 'disability'. In the case of Robinson & Co. v. Mannheim Insurance Co. (1915) 1 K.B. 155 : 84 L.J.K.B. 238 the learned Judge refers to the 'disability of an alien enemy to sue' (page 100).Page of (1915) 1 K.B.--Ed. I also find in Porter v. Freudenberg (1915) 1 K.B. 873 : 84 L.J.K.B. 1001 that the expression 'disability' is used in connection with an alien enemy's right to sue. In De Wahl v. Braune (1856) 25 L.J. Ex. 343 : 1 H.&N.; 178 : 108 R. R. 508 : 156 E.R. 1166 Martin, B., speaks of an alien enemy being under 'disabilities.' In some other cases the expression personal disability to sue' is used. It, therefore, appears to me that the suspension of the right comes within the meaning of the expression 'disability'. In Janson v. Driefontein Consolidated Mines Ltd. (1902) A.C. 484 : 71 L.J.K.B 857 : 87 L.T. 372 : 51 W.R 142 : 7 Com. Cas. 268 : 18 T.L.R 796 Lord Davey speaks of the plaintiff's 'inability' to sue, but it makes no difference whether it is 'disability' or 'inability' as Section 9 covers both. If that is so, I am constrained to hold that Section 9 does apply to a case of this character. Statutes of Limitation are in their nature strict and inflexible and as early as Luchmee Buhsh Roy v. Runjeet Ram Panday 20 W.R. 375 : 13 B.L.R. 177 : 2 Suth. P.C.J. 897 the Privy Council held that it was not susceptible, of equitable construction. In the case of Mohummud Buhadoor Khan v. Collector of Bareilly 21 W.R. 318 : 13 B.L.R 392 : 1 I.A. 167 : 3 Sar. P.C.J. 363 a question came up relating to Act IX of 1859 in respect of limitation affecting claims against the property of rebels forfeited to the Crown. The Privy Council held that the Limitation Act could not be construed as implying any saving with regard to persons under disabilities. It was argued that a saving with regard to persons under disabilities must be taken to be by equitable construction implied in the clause which came up for construction. 'Their Lordships thought it impossible that any Court could add to the Statute that which the Legislature had not done. It was also argued in that case that the disabilities referred to in the General Limitation Act XIV of 1859 ought to be understood as being incorporated in Act, IX of 1859, but their Lordships also held against such contention. The result is that Section 9 must be construed according to its plain meaning and I cannot either add to it or substitute anything for it. The section, when it was enacted, did not apparently contemplate a case of this character. If it is a case of omission I cannot supply it, it is for the Legislature. I can only construe the Statute as it stands. It makes no exception in the case of alien enemies. In America, however, in some of the State Courts and in the United States Courts an important exception to the rule appears to have been adopted, which although not within the letter is said to be within the spirit of the Statutes of the several States and their saving clauses, numely, that the Statute of Limitations does not run during a period of civil war as to matters in controversy between citizens of the opposing belligerents. This exception is predicated upon the ground that the Courts are not open to belligerents. In some cases cited in Wood on Limitation a 'disability' happening by inevitable necessity, appears to have been recognised as constituting an exception to the Statute of Limitations though not specified therein, but it also appears that the rule is not allowed to extend beyond necessity arising from war or death (Wood on Limitation, Vol. II, page 1136, 4th Edition, note to Section 242). In the case of De Wahl v. Braune (1856) 25 L.J. Ex. 343 : 1 H.&N.; 178 : 108 R. R. 508 : 156 E.R. 1166 [(1856) 25 L.J. Exch. 343] Lord Bramwell was of opinion that the Statute would run even when there was disability on account of war in the case of an alien enemy. No doubt the observation is obiter and in another report of the same case 1 H. &N.; 178 (1856) 25 L.J. Ex. 343 : 1 H.&N.; 178 : 108 R. R. 508 : 156 E.R. 1166 the passage does not appear, but there is no reason to doubt the correctness of the report which contains the passage, and although a great many years have elapsed since then, no different view appears to have been taken by any Court in England. Some text-writers have adopted that view and some others have taken a different view but it is unnecessary to refer to them. My attention was also called to an article in the Law Quarterly Review Vol. XX, page 168-169, based upon some American cases which I have not had the opportunity of considering., In Beckford v. Wade (1805) 17 Ves. Jun. 87 : 34 E.R. 34 : 11 R.R. 20 it was held that though the Court was shut up in time of war so that no original causes could be sued out, the Statute of Limitations continued to run. I find that case was cited by the Madraa Court in support of its decision in Kambinayani Javaji Subbarajulu Nayanivaru v. Uddighiri Venkataraya Chetty 2 M.H.C.R. 268. Even before Beckford v. Wade (1805) 17 Ves. Jun. 87 : 34 E.R. 34 : 11 R.R. 20 the same was held. See Prideaux v. Webber (1661) 1 Lev. 31 : 83 E.R. 282 and Bynions case (1667) cited in Hall v. Wybourn (1689) 2 Salk. 420 : 91 E.R. 365. I come to the conclusion that the time sought to be excluded cannot be allowed under the Act as it at present stands, and, therefore, the suit must be held barred.

2. The Official Liquidator cannot be looked upon as an agent of the plaintiff Bank He is an officer of the Crown whose rights depend upon the terms of his appointment. His right to sue is not derived from the Bank. No explanation has been given why the suit could not have been instituted within time. He was appointed long before the suit was barred. There is no explanation of the extraordinary delay. I think the suit must be dismissed with costs as of a motion including the defendant's costs of entering appearance.

3. Section 15 of the Limitation Act was mentioned as saving limitation in this case, but it did not appear to me to be strongly relied upon. It relates to injunctions or orders of Court, not royal proclamations. No doubt declaration of war prevented commercial intercourse between the parties but it can hardly be treated as covered by the section. Possession of the plaintiff Bank was taken by the Government. The remedy of the Bank is suspended but as it will revive when the war will end, I think the Statute of Limitations should provide for such cases.


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