Arumugam vs Herniette Sandjivy and Others

V. Kanagaraj, J.—This appeal suit is directed against the judgment and decree dated 12.1.1987 made in O.S. No. 78 of 1983 by the Court

of First Additional Subordinate Judge. Pondicherry thereby decreeing the suit for a sum of Rs. 28,930.

Adverting to the facts, the respondents herein have filed the suit against the appellant praying to direct the defendant to pay a sum of Rs. 28,930

with subsequent interest due on the promissory note and for costs on the ground that the defendant borrowed a sum of Rs. 19,500 from one Louis

Francois Victor Sinnas for agricultural expenses and repairing the tractor and for home expenses executing the promissory note for the said amount

on 25.7.1972 promising to repay the same with interest at 12% p.a. on demand, that the defendant also paid a sum of Rs. 5,500 towards principal

on 14.2.1974 and Rs. 50 towards interest on 13.1.1977, that no other payment was made by the defendant, that the said Louis Francois Victor

Sinnas died on 6.5.1979, that the plaintiffs are the legal heirs of the said person. That the plaintiffs issued a lawyer''s notice of demand to the

defendant dated 1.2.1983, but there was no reply from the defendant and hence, the suit for the recovery of the said sum.

On the part of the defendant, he would allege that pronote was already, discharged in the year 1976 and 1977. That Louis Francois Victor

Sinnas informed him that the, C.B.I. authorities have taken away the pronote and that he would return the same after cancelling, that the said

person was also maintaining a regular account book being a money lender showing the credit made by the defendant in suppression of which the

plaintiffs have now falsely come forward to claim the suit amount, that the suit pronote is pronote suit is only three years under the Indian defendant

would pray for dismissing the suit with costs.

The trial court having framed two issues viz., (i) whether the discharge alleged by the defendant is true or not? (ii) what other relief the plaintiffs

are entitled to? and (iii) an additional issue whether the suit is time barred? and having ordered for the trial in which the fifth plaintiff got himself

examined as P.W.1 and on the part of the defendant, he had himself entered into the box and examined as D.W.1. So far as the documentary

evidence is concerned, four documents have been marked as Exs.A-1 to A-4 on the part of the plaintiffs. Ex.A-1 dated 25.7.1972, the

promissory note for Rs. 19,500. Ex.A-2 dated 14.2.1974 the endorsement effected on Ex.A-1 for the payment of Rs. 5,500. Ex.A-3 dated

1.2.1983 lawyer''s notice. Ex.A-4 dated 4.2.1983 postal acknowledgement card. On the part of the defendant, the document marked was nil.

In appreciation of these evidence placed on record in the context of the facts and circumstances as brought forth by parties, the lower court

would ultimately arrive at the conclusion to decree the suit as prayed for, testifying the validity of which, the defendant has come forward to prefer

the above appeal suit on certain grounds as brought forth in the grounds of memorandum of appeal.

Today when the above matter was taken up for consideration by this Court, the learned Counsel appearing on behalf of the appellant would

take up the limitation question that is involved in this case as the only issue that has to be decided foremost and would submit that the suit is barred

by limitation since the pronote originally came into existence on 25.7.1972 admitted by both parties and the last payment that was effected for a

sum of Rs. 50 towards interest was on 13.1.1977, that the limitation for filing of the pronote suit is only three years under the Indian Limitation Act,

1963, that under these circumstances, the suit having come to be filed only on 6.2.1983, the learned Counsel would exhort that the suit is

hopelessly barred by limitation. The learned Counsel would point out that no valid reason has been offered on the part of the court below for

having arrived at the conclusion and to hold that according to the French Civil Code, the limitation is thirty years and in application of the relevant

provisions of the said Code, the suit is well within the time and hence, would ultimately decree the suit as prayed for.

The learned Counsel for the appellant would also cite a judgment of the Division Bench of Panaji Bench of the Bombay High Court reported in

Cadar Constructions v. Tara Tiles AIR 1964 Bom, 258, wherein in the context of Portuguese Civil Code pertaining to the limitation point that

arose, it is held as follows:

Provisions in the Portuguese Civil Court or other Codes in force in the Union Territory of Diu, Daman, Goa relating to the periods of limitation are

local laws within the meaning of Section 29(2) of the Limitation Act, 1963. But they are also special laws dealing with the rights and liabilities under

the Codes themselves of which they form a part. If any cause of action arises under the Portuguese Law in force in the Union Territory, then the

period of limitation for the suit based upon that cause of action will be the period mentioned in the relevant Portuguese Law. If, however, the

relevant provision in the Portuguese Law has been repealed, and the cause of action has arisen before the repeal of the law then notwithstanding

the repeal, a suit based upon that cause of action can be filed and even in that case the relevant provision relating to the period of limitation will be

the provision in the Code itself. If, however, the cause of action has arisen outside the Portuguese Law, then the part of the law dealing with the

period of limitation will not apply; on the other hand, a suit filed on the basis of the cause of action arising outside the Portuguese Law will be

governed by the provisions of the Limitation Act, 1963. First Civil Appeal No. 85 of 1979, dated 18.8.1983, (Bombay at Panaji-Goa),

Overruled. First Civil Appeal No. 27 of 1975, dated 30.6.1983. (Bombay at Panaji-Goa), Approved.

Citing the above judgment of the Division Bench of Panaji Bench of the Bombay High Court, the learned Counsel for the appellant would conclude

that the cause for the transaction that has arisen in the case in hand cannot be said to have arisen from out of the French Civil Code, but only under

the purview of the common Law and hence the French Civil Code cannot be applied to the case in hand as it has been wrongly held on the part of

the lower court and it is only the Indian Limitation Act, 1963 which is applicable, in which event, the limitation prescribed therein being only for

three Years for a pronote suit to be filed, the suit pronote has become hopelessly time barred and would pray for allowing the appeal setting aside

the judgment and decree passed by the lower court.

This limitation question being legal and one of the foremost to be solved before settling other issues involved in the suit, once this issue is

answered in the affirmative in favour of the appellant, there will be absolutely no bar in coming to the conclusion either legally or on facts and

hence, this question whether the suit is barred by limitation is taken up for consideration first.

The judgment cited by the learned Counsel appearing for the appellant, is the judgment delivered by the Panaji Bench of the Bombay High

Court. In the context of a similar situation that arose before the Bench was whether it was the Portuguese Civil Code or the Indian Limitation Act

that could be applied for deciding the question of limitation. The learned Judges of the Panaji Bench of the Bombay High Court have categorically

held that if the cause of action has arisen outside the Portuguese Law then the part of the law dealing with the period of limitation will not apply. On

the other hand, the suit filed on the basis of the cause of action arising outside the Portuguese law will be covered by the provisions of the Indian

Limitation Act of 1963. In the same manner, it could be seen that the pronote liability that is cast on the appellant the cause of action has arisen

only outside the French Civil Code and hence, as decided by the Bombay Division Bench at Panaji, Goa, it is outside the scope and applicability

of the French Civil Code and in such event it falls under the purview of the Indian Limitation Act of 1963 as it has been concluded by the Bombay

Division Bench at Panaji, Goa in the other case, cited on the part of the appellant.

Therefore, the conclusions for the question of limitation can be very easily arrived at saying that in a suit of such nature the period of limitation

under the Indian Limitation Act for filing of the suit since being 3 Years calculating the same from 13.1.1977, that is the last acknowledgement the

suit should have been filed on or ''before 12.1.1980. But the same having been filed on 6.2.1983 becomes hopelessly time barred and the only

question framed on this point of law is answered in favour of the appellant. In the result, the above appeal suit succeeds and the same in allowed.

The judgment and decree dated 12.1.1987 made in O.S. No. 78 of 1983 by the Court of First Additional Subordinate Judge, Pondicherry is set

aside.

The suit filed by the respondents herein in O.S. No. 78 of 1987 on the file of the First Additional Subordinate Judge, Pondicherry is dismissed. No

costs.