P L D 1978 Supreme Court 213 (PLP)

Period of Limitation three years. Time from which period begins to run. The date fixed for the perfor mance, or, if no such date is fixed, when the plaintiff has notice that performance is refused . We pointed out earlier that the agreement of sale between the respondent and his brother bad been executed in January 1961. As this was before the issue of the P. T. D. by the Settlement Department, the agreement stated that the sale would be registered as soon as the P. T. D. was issued, and as the P. T. D. was issued on 30.4‑62, Mr. Pirzada submitted that this was the date fixed for the performance of the contract within the meaning of Article 113, and that the respondent should have fled his suit within three years from this date, but as he filed it after more than 8 years it was time barred. However, as the agreement does not specify the date for the registration of the sale, Mr. Pirzada had to explain how the date of the issue of the P. T. D., which was the date on which a third party might or might not do something in the exercise of his discretion, became 'the date for the performance of the agreement. In order to overcome this obvious difficulty, he relied on the maxim id cerium est quod cerium reddipotest. According to the learned counsel, and we quote his words, "the date fixed under Article 113 meant the date fixed with reference to a future event which was certain to happen". In support of this proposition, learned counsel relied on a judgment of Madras High Court reported in Sathila Venkanna v. Namuduri Venktakrishanyya (41 1 C 807), and the leading case of Duncombe v. Brighton Club Co. ((1874) 10 Q B 371). The judgment of the Madras High Court does not lend any support to the learned counsel's submission, but a later judgment of that High Court in Munisivani v. B. M. Shamanna (A I R 1950 Mad. 820), supports his submission to some extent, and as Muniswani's case is based on Duncombe's case, we would first examine Dun combe's case. The facts in Duncombe's case were that Duncombe had supplied furniture to the defendant upon the terms that payment was to be made, one‑third in cash, as soon as the furniture and invoices were delivered, and the balance in bills at six and twelve months. As the defendant failed to pay the price of the goods received by it, the plaintiff brought an action, and the defendant only contested his liability for the interest claimed by Duncombe on his bill. The case turned on the proper construction of statutes 3 and 4 Win. 4, c. 42, according to which a debtor was liable for interest "upon all debts or sums, payable at a certain time . . . ." and as the agreement did not specify the day and the month on which the balance amount was to be paid, the defendant's contention was that he was not liable for interest under this statute. The question was of the meaning of the words "payable at a certain time" in the statute, and Blackburn, J , observed: "I have already expressed my opinion that they do mean that the debt or sum certain must be payable at a certain time by virtue of the written instrument, and that it is not enough that it afterwards became payable on a certain day. The section does not mean by 'a certain time', a time which is to depend on a future named event, which will, when the event happens, become certain." However, the view of Blackburn, J. was the minority view, and Lush, J. who wrote the majority judgment upholding Duncombe's claim, observed: "In this case the contract is, one‑third to be paid in cash, that is, in ready money, as soon as the goods are delivered and the invoices are delivered, so that the amount can be ascertained. So that the time of payment is fixed by the contract of the parties, and it is to be determined by the time when the goods are delivered. That is, I think, in accordance with and in analogy to cases decided upon the well‑known maxim: 'Id certum est quod cerium reddi potest: It appears to me that maxim is applicable to this statue. There are instances quoted in Broome's Maxims, 5th Edn., p. 623: "Although every estate for years must have a certain beginning and a certain end, albeit there appears no certainty of years in the lease, yet, if by reference to a certainty it may be made certain, it sufficeth;" Although the majority view in Duncambe s case has been followed by the Indian High Courts in several judgments which support Mr. Pirzada's submis sion, the attention of the High Courts was unfortunately not drawn to the judgment of the Privy Council in Judggomohum Ghose v. Manickchund and another (7 MIA 263), in which the Privy Council had to construe Legislative Act XXXII of 1839. This was unfortunate, because, as observed by the Privy Council "The Legislative Act XXXII of 1839, was framed, as appears on the face of it, expressly in order to extend to India the provisions of the Statue, 3rd and 4th Will. IV., C. 42, section 28, and substantially adopts the language of it." This means that the Privy Council construed in this case what was in fact the same statute as in Duncombe's case, and on the question as to what constituted a debt or sum "payable at a certain time" Sir John Coleridge, who delivered the judgment of the Board, observed: "With respect both to amount and time of payment, it was argued that maxim "id cerium est quod cerium reddi potest" must be applied; and in a reasonable sense, this is true. In the simplest case we may be obliged to have recourse to calculation for the actual amount, or to the calendar for the precise day of payment. A promise to pay on the last Saturday of the year, at the rate of 15 s. week for twelve months, would certainly be a promise to pay a sum certain at a time certain. It was argued also that in respect of both time and amount it was a question of degree, and in the same reasonable sense that every Statute is to be construed, not captiously, but with a view to the expressed intention of the Legislature: this is true also. But these propositions do not remove the greater difficulty of determining at what period of the transaction between the parties must the amount and time of payment become ascertained. Is it necessary that these should be ascertained at the time the promise is made? or will it suffice if they become so as the time when it ought to have been fulfilled and is broken? Ascertainment at any later period certainly could not suffice. The Statute, by the qualifications which it imposes of certainty in time and amount, by requiring that this certainty, and the obligation itself to pay the principal, should be created by a written instrument, by making the interest run from the time at which the principal is payable, and, finally, by giving the jury a discretion as to the allowance of interest, even where all these circumstances concur, seems to have been framed, not simply on the principle of compensation to the creditor, but also on that of penalty to the debtor for not paying punctually at a time when he must have known the debt or sum, specific in amount, was to be paid." We agree with these observations both on the proper construction of the Statute and on the objects of the Statute, and whilst we cannot agree with the construction placed on the Statute by Lush, J., in Duncombe's case. it is obvious that Lush, J., had resorted to a very liberal construction of the Statute in order to give effect to its object, which was to give relief to creditors. Now even on the assumptions that the view of Lush, J., was the correct view, the ratio of the judgment would he relevant to the construction of Article 113 of the Limitation Act only by parity of reasoning. Secondly, if we were to follow the construction placed upon the Statute by Lush, J., we would be assuming that a very liberal construction of Article 113 was required in order to give effect to the objects of the Article and of the Limitation Act. But we do not think this assumption would be correct. It is true that the Statute of Limitation is supposed to be a Statute of repose. It has been enacted in order that parties should not be negligent about the enforcement of rights, but this does not mean that the Legislature intended to deprive parties arbitrarily of their rights. And as the Act is a bar to a claim which is legally enforceable, any ambiguity in it, and the words "the date fixed for the performance" are ambiguous, should be construed in favour of the person whose right is sought to be barred. But as the object of the Statute construed in Duncombe's case was totally different, the maxim "id cerium est quoed cerium reddi potest" should not be applied to Article 113 in the manner in which it was applied by Lush, J., and on the footing that the maxim is relevant to the construction of Article 113 the correct law has been laid down by the Privy Council in Ghose's case. There is also another infirmity in Mr. Pirzada's submission. Although he stated that the date fixed under Article 113 meant "the date fixed with reference to a future event which was certain to happen, "that certain event, according to learned counsel, was the order of the Settlement Department for the issue of a P. T. D. to Mohabbat Din, deceased. But the issue of the P. T. D. could not possibly fall in the category of events which were certain to happen, because the question was within the discretion of the Settlement Department, and even if the P. T. D. had been wrongly refused, this would not have altered the facts that its issue was not an event which was certain or bound to happen. In order to overcome this difficulty, learned counsel attempted to equate the orders of the Settlement Department with those of the Courts. Although the submission is obviously fallacious, we will assume, for the sake of argument, that the Legislature had entrusted to the regular Courts the task of disposing off evacuee property which had passed into the Compensation Pool. Even on this assumption, the question whether Mohabbat Din was entitled to a P. T. D. or not would have been decided by the Courts in the exercise of their discretion, therefore, it cannot possibly ,6 be said that the issue of the P. T. D. was an event which was certain to happen. . We may also with advantage refer here to a judgment of the Privy Council in Lala Ram Sarup v. Court of Wards through Deputy Commissioner, Delhi and others (A R 1940 P C 19). The facts of this case were that one Saleem, who was a descendant of the Mughul dynasty, had been deprived of his share of his father's property, therefore, he wanted to file a suit in order to recover his share of his father's estate, and as he was not in a position to pay court‑fee on his claim, he entered into an agreement with the plaintiffs to finance him in his suit against the other heirs of his father. This agreement was drawn up on 2‑10‑1920 by a very eminent Advocate of Delhi, Khan Bahadur Abdur Rehman, later Abdur Rehman, J. The agreement provided that the plaintiffs "should bear all the expenses of the case and in return therefor should get a three‑annas share of the immovable property recovered . . ." As Saleem's suit was decreed on 10th May, 1925, the 'plaintiffs were entitled to a one‑third share in the immovable property decreed in Saleem's favour. Saleem died before he could enjoy the fruits of his success, and as his heirs refused to honour the agreement executed by Saleem with the plaintiffs on 2‑10‑1920, the plaintiffs filed a suit for the specific performance of this agreement of 2‑10‑1920. The respondents contested the suit on several grounds, one being that it was time‑barred, because it had been filed more than three years after the date on which Saleem's suit had be n decreed. Now, as in the instant case, the agreement of 2‑10‑1920 had not fixed the precise date for the performance of the agreement, because the agreement was contingent on the success of Saleem in the suit filed by him, therefore, the case of the respondents was that the agreement fell within the first part of Article 113 and that the time fixed for the performance of the contract was the date of the decree obtained by Saleem. The trial Court dismissed the suit as time‑barred. The plaintiffs thereupon filed an appeal in the Lahore High Court, which is reported as Alopi Parshad and another v. Court of Wards and others (A I R 1938 Lah. 23). The Lahore High Court set aside the .trial Court's finding that the suit of the plaintiffs was time‑barred, but it dismissed the claim on other grounds, therefore, the plaintiffs filed an appeal in the Privy Council which was allowed. Sir George Rankin, who delivered the judgment of the Board, had no hesitation in holding that the claim of the plaintiffs fell under the second part of Article 113, and his Lordship did not even refer to the maxim id cerium eat quod cerium reddi potest, because it was obviously not relevant. The facts in the instant case are on all fours with those this pronounce ment of the Privy Council. It is true that the agreement in the instant case was contingent on an order of the Settlement Department, namely : the issue of a P. T. D. whilst the agreement in Sarup's case was contingent on a judgment to be pronounced by a civil Court. But as nothing turns on this distinction, this judgment in Sarup's case is fatal to this petition for leave. We now turn to Sathula Venkanna's case on which Mr. Pirzada relied. The facts of this case were that the first defendant was the holder of a decree and he made an agreement with the second defendant that he would transfer the decree to the plaintiff on the second defendant paying him the amount of the decree. Although the first defendant received the decretal amount from the second defendant, as he dishonoured his agreement to transfer the decree to the plaintiff, the plaintiff filed a suit for specific performance against him. But as this suit was filed more than three years after the date of the second defendant's payment of the decretal amount to the first defendant, the first defendant's contention was that the plaintiff's claim fell under the first part of Article 113, and, was, therefore, time‑barred. The facts of this case are similar to those in the instant case, and it would appear that the attention of the Court was drawn to the maxim: id cerium eat quod cerium reddi potest, and learned counsel thought that this judgment supported his submission, because the Court did not expressly reject this maxim. It is true that the Court did not expressly reject this maxim, but the learned Judges expressly rejected the plea that the suit was time‑barred, and with reference to the maxim, they observed "It may be that it is right to apply the doctrine fully between the actual parties to the contract who would get the benefit, and be subject to the liabilities under the contract and to whom, therefore, the payment of the money would be on a certain date, some time or other to their knowledge. But in cases where a person is entitled to bring a suit on the contract who may not and need not, and very likely may not be aware of the date becoming fixed, we cannot think that the doctrine will apply." We do not see how these observations can lend any support to the petitioner's case. On the contrary, on this judgment the petition i8 only fit to be dismissed. However, as we observed earlier, the Madras High Court took a different view many years later in R. Moniswani Goundar (d ed) and another v. B. M. Shamanna Gouda and others (A I R 1950 Mad. 820). The attention of the learned Judges was not drawn to the earlier pronouncement of their Court in Sathula Venkanna's case, and further, they assumed that the ratio of the majority view in Dancombe's case was fit to be applied to the construction of Article 113. : Unfortunately, the attention Of the learned Judges was not drawn to the judgment of the Privy Council in Ghose's case. The appellant had, however, relied on the judgment of the Lahore High Court in Alopi Parshad s case, because, whilst construing a similar agreement, the Lahore High Court had taken the view that the agreement did not fall under the first part of Article

113. The learned Judges of the Madras High, Court dissented from the view of the Lahore High Court, but once again we have to observe with regret that their attention was not drawn to the fact that the judgment of the Lahore High Court in Alopi Parshad's case was challenged in an appeal before the Privy Council, and that tare Privy Council also held that the agreement between the parties, which was contingent on a decree being pzssed in favour of one of them, did not fall under the D first part of Article

113. This is the judgment which w s reported as Lala Ram Sarup v. Court of Wards to which we referred earlier. Thus the view taken in R: Muniswani's case, and in other judgments in which a similar view has been taken, is inconsistent with the law declared by the Privy Council. We cannot agree with this view, and we told that the agreement between the respondent and his brother in the instant, case did not, E fall under the first part of Article

113. Finally, Mr. Pirzada submitted that even if the respondent's suit was not hit by Article 113, as the claim was for specific performance the suit should not have been decreed because of the, respondent's delay in filing the suit. But the question whether there was any delay by the respondent in filing his suit is a question of fact, and both the appellate Courts have decided this question against the petitioner. As this concurrent finding is supported by the evidence of the respondent's son, which is the only evidence to which we were referred, we are unable to accept learned counsel's submission that the respondent's suit should not have been allowed on the ground of laches. The petition is without merit and is dismissed. S. A. H. Petition dismissed.