Muhammad Noohu Muhammad Abdulkadir vs Kathiradima Pillai Abdulrahiman Pillai and Others

Plaintiff 2 is the Appellant. The suit was based on Ex. A agreement executed by Defendants 1 to 31 in favour of Plaintiff I''s husband deceased Muhammad Noohu on 22-6-1114. It is alleged that Ex. A was entered into on behalf of the Muslim fisher folk of the locality including Defendants 32 to 82. Under Ex. A the executants agreed to give to Muhammad Noohu 1/10 of the total catch of fish by the different fishing implements described in the document for a period of one year and three months beginning from 1st Kumbhom 1114 and ending with Medom 1115 for a consideration of Rs. 1500/- that was paid as per the recitals In the document. Ex. A provided that in case of default by any on in the supply of fish as stipulated in Ex. A Muhammad Noohu will be entitled to recover compensation for every default from each defaulting party at the rates specified in the document. The Plaintiffs have claimed relief only in respect of the default during the last month of the period of supply. The learned Munsiff dismissed the suit as time barred. Plaintiff 2 has, therefore, come in appeal.

The learned advocate for the Appellant contends that the article applicable to a suit of this nature is Article 62, Limitation Act of Travancore that was in force on the date of suit. We are unable to agree with that contention. Article 62 governs 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. This suit is clearly one for damages for breach of a contract and we do not think that Article 62 has any application whatsoever for a suit of this nature. To our mind the proper article that is applicable to the present suit is Article 103, Travancore Limitation Act which corresponds to Article 115, Indian Limitation Act. That Article provides:

According to Ex. A the Defendants were to give to the husband of Plaintiff 1 1/10 of the daily catches of fish by the several fishing implements mentioned in the deed and the Plaintiffs'' case is that Defendants 32 to 82 have defaulted to do so. There were, therefore, successive breaches of the contract and the cause of action for each successive breach arose from the respective date of default. The suit is filed only on 30-9-1118. The Plaintiff can, therefore, claim compensation for the breaches that arose within three years of the date of suit. It cannot, therefore, be said that the entire plaint claim is barred. That part of the plaint claim which is not time-barred has, therefore, to be investigated on the merits. The lower Court is not right in dismissing the entire suit. The decree, of the lower Court is, therefore, reversed and the case remanded to that Court for trial and decision de novo in accordance with law and in the light of the foregoing observations. The appeal is allowed as indicated above. The memorandum of objections relates to an observation of the Court below in its judgment that Defendants 32 to 83 admitted default which the Respondents construe as a finding against them. There is no such admission as stated by the Munsiff nor is there any room for the apprehension that there is any finding against the Respondents in regard to this matter. While making the point thus clear we dismiss the memorandum of objections. The parties will bear their costs in this appeal except the institution fee paid on the memorandum of appeal which will be refunded to the Appellant.