R.M. Venkatachalam Chettiar vs M. Abdul Rahim Sahib and Another

Bellie, J.—The plaintiff is the appellant. The suit for recovery of a sum of Rs. 22,160 alleged to be due on a mortgage deed dated

7.11.1963 executed by the first defendant (first respondent herein), has been dismissed on the ground that the suit is barred by limitation. The

subsequent mortgagee has been impleaded as the second defendant-second respondent herein. Second respondent has remained exparte and the

appeal is being contested by the first defendant-first respondent.

As said above, the mortgage is dated 7.11.1963. The period for redemption fixed therein is one year i.e., till 7.11.1964. The suit has been filed

on 27.11.1978. In the plaint it is stated that the plaintiff bona fide believed that the first defendant/debtor was entitled to the benefits of the Debt

Relief Ordinances and Acts and therefore 3 years, 1 months and 15 days shall be excluded while computing the period of 12years and if thus

computed the suit is in time.

It was contended by the first defendant that the plea that the plaintiff bona fide believed that the first defendant was a debtor entitled to the

benefits of the Debt Relief Act is not true and therefore, no question of excluding 3 years, 7 months and 15 days arises and hence the suit having

been filed beyond 12 years from the dale fixed for redemption, i.e. 7.11.1964 the suit is barred by limitation.

The trial Court, accepting the case of the first defendant and disbelieving the plaintiffs plea that he bona fide believed that the defendant was

entitled to the benefits of the Debt Relief Acts, held that the suit is clearly barred by limitation, and dismissed the suit.

The only point that arises for consideration in this appeal is whether the finding of the trial Court that the suit is barred by limitation is correct.

Mr. N. Palaniappan, learned Counsel for the appellant/plaintiff contends that the suit has been filed well within 12years prescribed under the

relevant Article 62of the Limitation Act and it is not necessary to consider whether the plaintiff bona fide believed that the defendant was entitled to

the benefit of the Debt Relief Acts.

The learned Counsel contends that a close reading of the mortgage deed Ex. A-1 shows that the first defendant shall pay interest at 12 percent

per annum every month without default, and on the expiry of the period fixed for redemption he shall pay the principal amount, and in case he fails

to pay the monthly interest or the principal amount as stated above, from the date of default he would pay an additional interest of Rs. 1.12 paise

for every Rs. 100 per month along with the principal when the plaintiff demands for payment. According to the learned Counsel, as per these

terms, until the time the plaintiff makes a demand no period of limitation runs and only when the demand is made from that date only the period of

limitation shall be computed, and in this case the plaintiff has made a demand for the first time only under Ex. A-5 notice, dated 23.9.1977, and the

period of limitation shall be computed only from that date, and thus computed the suit is well within 12 years and therefore the suit is in time. In

support of this contention, the learned Counsel relics on a Division Bench decision of this Court in Nettakantppa Goundan v. Kumaraswami

Goundou and Ors. 8 M.L.J. 167 : ILR 22 Mad. 20The facts in that case are quite identical with the facts in our case and therein considering the

old Article 132 of the Limitation Act which corresponds to Article 62 of the new Act, it was held that the limitation would run only from the date of

demand by the mortgagee. It was observed that:

As observed in Hanmantram Sadhuram Pity v. Bowles ILR 8 Bom. 561 the liability of the defendant being by the bond made dependent on a

preceding demand, the defendant could not, till such demand was made, have considered the action as accruing against him since the default made

in October, 1981.

As agaiast this, no contra ruling has been brought to my notice by the other side. Hence, in the light of the said decision it has to be held that the

Limitation of 12 years under Article 62 would run only from the date of demand made by the plaintiff i.e., 23.9.1977.

Mr. I. Mahboob Sheriff, learned Counsel for the first respondent mortgages argued that no plea as it is now raised by the learned Counsel for

the appellant/plaintiff has been made either in the plaint or before the lower Court and this plea is raised for the first time in the appellate Court and

therefore, this plea cannot be considered now. In this respect the learned Counsel reads Order 7, Rule 6 of the CPC according to which where a

suit is instituted after expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such

law is claimed, provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint,

if such ground is not inconsistent with the grounds set out in the plaint.

The learned Counsel also relies on Nagayasami Naidu and Others Vs. Kochadai Naidu and Others, , for the proposition that a party cannot be

awarded relief on a basis not pleaded by him and on which there is no issue. He has also relied on Shiv Shiv Tewari Vs. Ganesh Prasad Misra and

Others, , wherein it has been held that the provisions of Order 7, Rule 6 are mandatory in nature and whenever a plaintiff wants to seek exemption

from'''' the operation of law of limitation, he must expressly state in the plaint the grounds on which exemption is sought for.

Another decision relied on by the learned Counsel is Bhagwati Prasad Vs. Shri Chandramaul, , which is to the effect that:

If a party asked for a relief on a clear and specific ground, and in the issues or at the trial, no other ground was covered either directly or by

necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new.

There is no doubt that as per Order 7, Rule 6, if the period prescribed by the law of limitation is over the plaint shall show the ground upon

which exemption from such law is claimed. But the question here is whether the plea made by the learned Counsel for the appellant/plaintiff that the

suit has been filed within 12 years time prescribed under Article 62 of the Limitation Act is correct. As per Article 62 the Limitation of 12 years

runs when the money sued for becomes due. The counsel for the appellant/plaintiff submits that the money sued for became due in the present case

when the plaintiff made the demand, and as per the Ruling in Nettakantppa Goundan v. Kumaraswami Goundan and Ors. 8 M.L.J. 167 : ILR 22

Mad. 20 if the suit has been filed within 12 years from the demand then the suit must be taken to have filed within 12 years prescribed in Article

132 of the old Act. I agree with the learned Counsel for the appellant/plaintiff. Therefore, in this case no question of showing the ground upon

which exemption is claimed from the law of limitation arises.

True, it is not pleaded in the plaint that the limitation period of 12 years has to be construed from the date of demand. But for that reason alone

it cannot be held that the suit is not in time. When from the very terms of the document, i.e., the mortgage deed itself the Court can hold that the

suit is within the period of limitation, only on the ground that it has not been explained as to how the suit is in time, the suit cannot be held to be not

in time.

It is also argued for the first respondent that Ex. A-5 demand notice has not been served on the first defendant and he had no knowledge

about it at all and therefore it cannot be said that there was demand made by the plaintiff. To that the learned Counsel for the appellant/plaintiff

rightly submits ^that even if this argument is accepted then it only follows that there was no demand made by the plaintiff and therefore the suit filed

must be taken to be the demand and as such it is within time. In this view of the matter I think it is not necessary to consider the other aspects of

the ma tier viz., whether the plaintiff bona fide believed that the first defendant was entitled to the benefits of the Debt Relief Acts. Thus, I find that

the judgment of the trial Court that the suit was not in time and therefore it is not maintainable is not correct.

Therefore, the result is that the appeal is allowed and the judgment and decree of the trial Court are set aside and the suit is decreed as prayed

for. In the circumstances, there will be no order as to costs in this appeal. Time for payment six months.