MODERN ENGINEERING CO Vs. MOHAN CHARAN MALLICK

JUDGEMENT

(1.) The plaintiff instituted this suit for a declaration that premises No. 34-C Nalin Sarkar Street and 23 Fordyce Lane are charged in favour of the plaintiff by two security bonds dated April 28, 1952 and April 6, 1955 executed by the defendant and for a decree for Rs. 31,076 5 np. and also a decree under Order 34 of the Code in the appropriate form of Appendix D. The plaintiff filed suit No. 538 of 1952 on February 11, 1952 for a declaration that the oil engine was tbe property of the joint venture between the plaintiff and T. N. Chakravarty and Sons and for delivery of the said engine and for other reliefs. On February 15, 1952 the Official Receiver was appointed Receiver of the said oil engine. On March 5, 1952 the order for appointment of the Official Receiver was discharged. On April 1, 1952 an order was made in appeal from the order of March 5, 1952 in Appeal No. 32 of 1952 that upon furnishing security for Rs. 15,000/- by the defendant he was given liberty to take possession of the said oil engine. On April 28, 1952 the defendant in the present suit executed a security bond in favour of Registrar, Original Side in terms of the order of the Appeal Court dated April 1, 1952 and he thereby created a charge for Rs. 15,000/- on premises No. 34-C Nalin Sarkar Street, Calcutta and 23 Fordyce Lane, Calcutta. On January 6, 1954 the plaintiff obtained a decree in suit No. 538 of 1952. On November 22, 1954 the defendant preferred an appeal from the said decree. On March 14, 1955 on an application by the defendant in the said appeal an order was made that upon the defendant's furnishing security in the sum of Rs. 30,000/- to the satisfaction of the Registrar of this Court the execution of the decree dated January 5, 1954 except in so far as the reference had been directed should be stayed till the determination of the said appeal. On April 6, 1955 the defendant executed a security bond for Rs. 30,000/- in favour of the Registrar of this Court and the bond was registered. On September 13, 1955 the Assistant Referee of this Court made his report on the reference pursuant to the decree dated January 6, 1954. On June 3, 1957 the report of the Assistant Referee was confirmed and a decree was passed by this Court awarding the plaintiff a sum of Rs. 17,887-5-4 being the value of the engine and interest on the sum of Rs. 14,865/l0/-at the rate of 6 per cent per annum from the date of the decree until realisation and also a decree for Rs. 1819-14-0 as costs of the reference besides other costs in obtaining the report and other incidendtal costs. On February 19, 1957 the appeal preferred by the defendant was dismissed. On August 17, 1959 an order was made by this Court directing the Registrar, Original Side to assign the said security bond in favour of the plaintiff. On June 28, 1960 the Registrar Original Side duly assigned the said security bond in favour of the plaintiff. On July 13, 1960 the deed of assignment was registered with the Registrar of Assurance, Calcutta. On December 23, 1960 this suit was filed. The nature of the defence will appear from the issues raised at the trial. The following issues were framed at the trial :

(2.) To what relief, if any, is the plaintiff entitled? (2) The most important defence was the plea of limitation. Counsel on behalf of the defendant relied on the decision in General Accident Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, 67 Ind App 416 : (AIR 1941 PC 6), in support of the contention that enforcement of a security bond is governed by Article 68 of the Limitation Act and the period of limitation is 3 years from the date of breach of the covenant. Reliance was also placed on this decision in support of another proposition that assignment by the Registrar does not constitute either the commencement of the period of limitation or any fresh starting point of limitation. Counsel for the plaintiff contended that the suit in essence was for enforcement of a charge and was in the nature of a mortgage suit and there- fore the period of limitation would be either 12 years or it would be six years. He relied on Article 132 as well as on Article 116 and Article 120 of the Limitation Act. He further . contended that if two periods of limitation were applicable the Court should take a view favourable to the plaintiff's case and apply the period of limitation which would give the plaintiff a longer period respecting limitation. In support of that contention reliance was placed on the decision in Kastur Chand v. Hari Gobind, AIR 1934 Bom 491, and the decisions of this Court reported in Behari Lall v. Sindhubala Dassi, 22 Cal WN 210 at p. 212 : (AIR 1918 Cal 615 at p. 617) and Madras Steam Navigation Co., Ltd. v. Shalimar Works, ILR 42 Cal 85 at p. 108 : (AIR 1915 Cal 681 at p. 685), were relied on for the proposition that a general article does not govern where there is a particular article which covers the case.

(3.) In the case of General Accident Fire and Life Assurance Corporation Ltd., 67 Ind App 416 : (AIR 1941 PC 6), it was held that Article 68 of the Limitation Act would apply to the relevant bond which was an administration bond. Under section 291 of the Succession Act the bond was in the usual form in that case and it is the usual practice to apply section 292 and to have the bond assigned to the intending plaintiff which happened. in that case as well. No declaration of charge and no mortgage decree were asked for in that case.