Bichal Naidu vs S.K. Muthuramalingam and Another

Anantanarayanan, J.—This Revision proceeding involves a question of some interest, namely, the extent to which Section 4(1) of Madras

Act I of 1955 would be operative to split up a debt owed by an agriculturist into the different parts or instalments contemplated by the section,

each forming a distinct cause of action both with regard to the right to sue upon the debt, and with regard to limitation; The revision petitioner

before us is the second defendant in a suit upon a negotiable instrument, under the following circumstances.

The case of plaintiff (respondent) was that the first defendant and his undivided son, the second defendant (revision petitioner), conducted a

Mandi business, in respect of which there were dealings with the plaintiff from prior to 1st October, 1953. On 24th March, 1954, the accounts

were settled as between the parties, and a balance of Rs. 681 -4-11 was due which the revision petitioner acknowledged, and in respect of which

he executed a promissory note in the ledger of the plaintiff. The plaint was originally presented in the Court of the Subordinate Judge of Dindigul

but it was returned by that Court on the ground that the first instalment due under Act I of 1955, the fact not being in dispute that the defendants

were agriculturists entitled to the benefit of that Act was clearly barred by limitation. The plaintiff thereupon confined his claim to Rs. 406-03, being

the amount due for the subsequent three instalments, according to his memorandum of calculation. As the claim in respect of this amount was

cognizable by the Court of the District Munsif, the plaint was returned for presentation to the proper Court, and that was how the suit came to be

filed in the Court of the learned District Munsif of Dindigul. We are not now concerned with several of the matters in controversy between the

parties,, including an alleged discharge pleaded by the defendants, and the binding nature of the acknowledgment dated 24th March, 1954, Exhibit

A-4. We are mainly concerned with the question of limitation as applicable to the facts established by the record.

It is well known that the result of the operation of Section 3 of Madras Act V of 1954, Section 3 of Act I of 1955 and Section 5 of the former

Act and Section 8 of the latter Act, is that a total period of one year, six months and 26 days has to be excluded for the computation of limitation.,

with regard to the debt due from an agriculturist to which these enactments apply. It is sufficient to refer to the following decisions of this Court,

namely, Narayana Moopanar v. Viswesa Nadar (1958) 71 L.W. 531 and Savada Gounder v. Veerappa Gounder (1959) 1 M.L.J. 312 : I.L.R.

(1959) Mad. 711 : 72 L.W. 140. It is again indisputable, that where a Provincial Act has been validly passed, and it makes it obligatory upon

Courts to exclude a particular period when computing the period of limitation, the Courts should exclude that period, as the Limitation Act is not an

exclusive corpus of law upon the subject, and special enactments may very well modify that law. Reference may also be made here to N.

Sambayya v. N. Pedda Subbayya (1937) 3 M.L.J. 703, wherein a Bench of this Court decided that, with reference to insolvency proceedings, a

creditor could deduct only the period from the date of adjudication to the date of annulment, as the operation of the statute of limitation could be

regarded as suspended only for that period. In the present case, though the suit is truly upon the negotiable instrument which was executed on 24th

March, 1954, the learned District Munsif has given a finding that the plaintiff was entitled to add one year, six months and 26 days to the three

years which he would normally have from 24th March, 1954, for the Computation of limitation. Learned Counsel for the revision petitioner

contends that this view is quite untenable, and cannot be recognised as valid even prima facie. If that argument is to be accepted the question then

is whether the suit has to be dismissed in its entirety as time-barred, or whether the suit claim could be upheld in respect of the three instalments

excluding the first instalment for which it was restricted, after the return of the plaint by the Sub-Court.

As regards the first point, we think that it is fairly obvious that the conclusion of the learned District Munsif cannot be supported, indeed, it rests

upon a demonstrable fallacy. The period of one year, six months and 26 days is available to a creditor, where the cause of action or the transaction

itself is anterior to this period. Obviously, a creditor is not entitled to the benefit of the entire period, where the cause of action itself arises upon a

date within the period, and the suspension of the ordinary law regarding limitation operates upon him, to disable him from filing any suit, only for the

reminder of the period. A simple instance would be sufficient to show this. If we suppose that a negotiable instrument came into existence when this

period had one more day to run, after which the normal law of limitation would again be operative, it would clearly be untenable to contend that

such a creditor could still add the entire period of one year, six months and 26 days to the normal period of limitation of three years. In Sri

Veeranna Konar v. Sri Kattapuli Ambalam (1961) 73 L.W. 686, a very similar argument was pressed before Jagadisan, J. and the learned Judge

observed as follows:

If a creditor lends money to another who is an agriculturist within the meaning of the aforesaid enactments, during the period of the bar, he will not

certainly be permitted to add to the normal period of limitation any period of statutory exclusion prior to the date of his lending. Such mode of

computing the period of limitation will certainly be startling and anomalous.

We have no hesitation, therefore, in holding that upon the true computation of limitation, the first instalment of the debt would clearly be time-

barred. The other three instalments alone will be in time.

The question now arises whether the plaintiff is really entitled to restrict his claim to the three instalments which are in time; in other words, to

split up the integrality of the debt for this purpose and to depend upon each instalment as furnishing a distinct cause of action. In Gopal Udayar v.

Mangala Udayar and Anr. (1961) 74 L.W. 601, Srinivasan, J., held that this was the effect of the special enactment, and that the failure to pay

each instalment as it fell due, gave rise to a separate cause of action. In Ganapathia Pillai Vs. Ekambara Mooppan and Another, , Ganapatia Pillai,

J., held that the effect of Section 4(1) of Madras Act I of 1955 was not to attract the provisions of Article 74 of the Limitation Act, which was a

special provision applicable to cases of promissory notes or bonds, under which the debts were made payable by instalments. The question is

whether there is any conflict between these two decisions, as might appear at the first blush and how this conflict should be resolved.

It is important to note that Section 4(1) of Act I of 1955, which enacts the provision for payment of the debt in instalments, commences with the

words "" Notwithstanding any law, custom, contract or decree of Court to the contrary"". As Srinivasan, J., observed in Gopal Udayar v. Mangala

Udayar and Anr. (1961) 74 L.W. 601, cited above, it is ordinarily not open to the parties to plead that the debt was divisible unless the contract

had expressly stipulated therefor. But where a special enactment, which is invested with a overriding power with regard to any other law, creates

this effect of a liability to pay the debt only in instalments, it is a reasonable interpretation to hold that each instalment will furnish a distinct cause of

action. At least for the purpose of limitation, and the right to sue, the integrality of the debt must thus be held severed into distinct parts. We do not

think that this view is really in conflict with the dicta in Ganapathia Pillai Vs. Ekambara Mooppan and Another, . This decision was noticed by

Srinivasan, J., also in Gopal Udayar v. Mangala Udayar and Anr. (1961) 74 L.W. 601. As the learned Judge has pointed out that decision in

Ganapathia Pillai Vs. Ekambara Mooppan and Another, , was confined to the interpretation of the words "" description of the suit, on a promissory

note or bond payable by instalments,"" occurring in Article 74 of the Limitation Act. All that the Court purported to lay down was that the words

payable by instalments "" cannot be construed independently of the words "" promissory note or bond "" and that the Article as such applies to an

instrument which in its very terms, renders the debt payable in instalments. The decision is not authority for the view that a special enactment cannot

have the same effect.

The last three instalments thus being in time, and since the plaintiff restricted his claim to the amount thus found due, the suit was rightly decreed,

though a certain part of the reasoning of the learned District Munsif was not correct. The Civil Revision Petition fails and is accordingly dismissed.

The parties will bear their own costs.