(1.) The petitioner is the defendant
in a Small Cause suit filed by the respondent to recover a sum of Rs. 1,999-44Ps.
on the basis of two hand loans, Rs. 1,000
and Rs. 100. The petitioner admitted
his liability for the loan of Rs. 100, but
denied that he ever borrowed for himself
or for the sake of anybody a sum of
Rs. 1,000 from the respondent. According to the case of the respondent a loan
of Rs. 1,000 was taken in August, 1949,
the petitioner having agreed to repay it
on 31st July, 1950 and the second loan
was taken in October, 1950. The suit
was filed on 17 th December, 1958 after
more than three years from the dates of
borrowing. For the purpose of limittion, the respondent relied on three letters
Exhibits A-2 to A-4, which Were admittedly written by the petitioner to
the respondent. Exhibit A-2 is dated 19th
October, 1950, Exhibit A-3 is dated 3rd
February,1953, and Exhibit A-4 is dated
2nd February, 1956.
On the basis of these letters, the lower
Court found that the suit was within
time. The lower Court, on evidence
adduced also accepted the case of the
respondent that he lent the two amounts
to the petitioner and accordingly decreed
the suit as prayed for.
(2.) Mr. P.V.R. Sarma, learned Counsel
for the petitioner has argued mainly on
the question of limitation. With regard
to the loan of Rs. 1,000 which was given
in August, 1949 it is the case of the respondent that the defendant agreed to
repay that amount on 31st July, 1950 and
that therefore the period of limitation
should run from that date only. The
lower Court found that both the loans
were acknowledged under Exhibits A-3
and A-4. If the three years' period is to
be reckoned not from August, 1949, but
from 31st July, 1950 the acknowledgement under Exhibit A-3 would be within
three years from that date and as Exhibit
A-4 was within three years from Exhibit
A-3 and as the suit Was filed within three
years from the date of Exhibit A-4 there
cannot be any bar of limitation for the
suit. On evidence, the lower Court also
accepted the case of the respondent that
according to the agreement between the
parties, the loan of Rs.1,000 was repayable
only on 31st July, 1950. But, Mr. Sarmae
argued that under Article 57 of the old
Limitation Act, though according to the
agreement between the parties the
amount was repayable only on 31st July,
1950, the period of three years must be
reckoned from the date of the loan in
which case the letter. Exhibit A-3 under
which the debt was acknowledged would
be more than three years and by that
time, the debt was already barred by time.
(3.) Bat, Mr. Veerabhadrayya, learned
Counsel for the respondent argued that the
proper article that would be applicable
to the facts of the present case is the
residuary article 115 and not article 57.
Therefore, the question for consideration
is whether article 57 or article 115 of the
old Limitation Act is the proper article
which would apply to the facts of the case.
According to article 57 of the old Limitation Act, for money payable, the period
of limitation for a suit to recover money
lent is three years when the loan is made.
If this article is the proper article to be
applied to this case, then the debt
would be barred by limitation and therefore the debt would not be recoverable.
According to article 115, for a suit to
recover compensation for breach of any
contract, the period of limitation is three
years when the contract is broken. Mr.
Sarma, has argued that this article cannot
be applied to the facts of this case, because,
the suit is not to recover any compensation for breach of any contract. For this
purpose, he placed reliance on two decisions. The first decision relied upon by
him is a decision of this Court is
Subbaraju v. Village Panchayaty, Gundugolanu.
There, the suit was filed by a contractor
for recovery of money with regard to
excess work done by him for which there
was no agreement between the parties.
In that connection Gopal Rao Ekbote, J.
who decided that case observed thus
"In order to apply Article 115 therefore
there must be a contract a breach thereof
and the suit must be for compensation.
The facts found in the case leave me
in no doubt that in regard to excess
work there was no contract between the
parties, hence no question of breach of
contract arises which can give rise to
suit for compensation."
But, in the present case, the agreement
between the parties was for repayment
of the money lent on a particular date.
There was a breach of that agreement
by the petitioner. Therefore, the case
relied upon by the learned Counsel has
no application to the facts here. The
second case relied on by the learned
Counsel is Town Area Committee v.Budh Sen.
There, the defendant took " Theka" of a
shop for one year from plaintiff and agreed
to pay certain sum by instalments, but
failed to pay the agreed sum and therefore
the plaintiff filed the suit for recovery of
defaulted instalments. Under those circumstances, the learned Judges of the
Allahabad High Court held that the suit
Was governed by article 120, but not article 115. According to that decision, if
Article 115 does not apply, article 120
which is the residuary article will apply.
I do not think anything said in that decision will help the contention raised on
behalf of the petitioner.;