Nilruttun Lal and Others vs Torab Ali Khan and Others

Porter and Agnew, JJ.—The plaintiffs'' case is that, on the 26th of January 1871, the defendant Torab Ali opened a banking account with their firm in the name of one Asgar Hossein; that on the 29th of May 1873, Torab Ali drew out the amount of the balance at the credit of Asgar Ali, and made it over to the defendant Mussamut Bhikhan; and that, on the 30th of January 1878, a decree was made against the plaintiffs for the refund of this amount at the suit of the heirs of Asgar Hossein, The plaintiffs further state that some of the heirs executed a release to them for the amount of their shares, and that they were obliged to pay the sum of Rs. 930-0-6 to the other heirs on the 15th of January 1883. They now sue for this sum and for Rs. 125-15-6 for interest. The suit was instituted on the 5th of February 1884, the plaintiffs alleging that their cause of action accrued on the day when they had to pay the sum of Rs. 930-0-6. The first Court held that the suit was governed by Article 115 of the second schedule to the Limitation Act, and that it was barred, having been instituted more than three years from the date when the fraud was discovered. This decision was reversed on appeal, the Judge holding that the defendant Torab Ali''s breach of an implied contract, which was the cause of action, was a continuing breach, and that the suit was not barred. It has been argued for the appellant that either Articles 951, 962, or 120 of the second schedule to the Limitation Act apply to the case, and that the cause of action accrued either on the 29th of May 1873 when Torab Ali drew the balance, or, if not then, on the date when the plaintiffs first became aware of the alleged fraud, and in either case more than six years before the suit was instituted. There does not appear to be any article which applies precisely to this case; the article which appears most applicable is, we think, Article 61, which provides, a period of three years'' limitation from the date when the money is paid, for a suit to recover money payable to the plaintiffs for money paid for the defendant. We do not think that either art, 95 or Article 96 apply. The suit is not to obtain relief on the ground of fraud or mistake but to recover a specified sum of money which the plaintiffs have had to pay in consequence of the act of the defendant, Torab Ali. Until that money was paid, the plaintiffs did not suffer any loss. The mere demand by the heirs of Asgar Hossein did not give the plaintiffs a cause of action against the defendants, nor did the institution of the suit. The demand might have been abandoned, or the suit might have been dismissed. And even supposing that the plaintiffs had admitted their liability to the heirs, they would not have suffered any loss until they actually paid the amount claimed; and that is shown by what actually happened in this case when some of the heirs released the plaintiffs from their claims. The plaintiffs do not pretend to say that they are entitled to recover more than what they actually had to pay. We think, therefore, that the cause of action accrued on the 15th of January 1883, the date when the money sued for was paid, and that the suit is not barred by limitation, and we dismiss the appeal with costs.

_____________________________________________________________________________________________ Article 95: _____________________________________________________________________________________________

Description of suit. Period of limi- Time from which period begins tation. to run. _____________________________________________________________________________________________

To set aside a decree obtained by Three years. When the fraud becomes known fraud, or for other relief on the to the party wronged. ground of fraud. _____________________________________________________________________________________________

_____________________________________________________________________________________________ Article 96: _____________________________________________________________________________________________

For relief on the ground of mistake Three years.... When the mistake becomes known to the plaintiff. ______________________________________________________________________________________________