COTHA KRISHNASAWMY CHETTY Vs. SITARAM CHETTY

JUDGEMENT

(1.) This is a suit instituted by the plaintiff to recover certain instalments due on a bond which was executed in his favour by the defendants under an award made in a dispute between the plaintiff and the defendants as to the share which he was entitled to in their business. Under the award the defendants executed a promissory note, which is Exhibit A dated 12th December 1904, by which the sum of Rupees Thirty thousand (Rupess 30,000) only, interest at 9 per cent per annum was payable by monthly instalments of Rs. 1,000/-, the first instalment being due on the 15th January 1905 and each instalment being payable with interest on the unpaid portion of the principal. If the amount of three instalments be allowed to fall into arrears, the balance of principal and interest then due shall at once be recoverable without reference to the aforesaid provision for instalment."

(2.) The defendants duly paid the instalments under the bond including the instalment of May 1906. But the cheque they sent was returned to them. Then they wrote to the plaintiff a letter Exhibit C, dated 13th May 1906, enquiring the reasons for the refusal; and in answer to that, the plaintiff s solicitors wrote Exhibit D of the 22nd May 1906, in which they said that the whole settlement was a fraud upon the plaintiff and that he was not going to be bound by it. Again in June 1906 the defendants appear to have tendered the instalment for that month which was returned to them and in July they wrote the letter--Exhibit E--mentioning the previous two instalments have been returned and asked whether the plaintiff "would not in future receive payments tendered for the instalments of the bond, so that we may cease to go through the farce of sending a cheque every month, only to be returned." To that letter they received no answer but in the following month a suit was filed by the plaintiff to set aside the whole award and recover the share of the business to which he claimed to be entitled. That suit was eventually dismissed by a decree of the Appellate Court. Then the plaintiff demanded the payment which was due to him under the instalment note but payment was refused; when the present suit was filed the defendants pleaded that the claim had become barred by limitation. Now, the plaintiff contends in this suit, in the first place that the suit had not become barred either wholly or in part, both of which contentions were urged by the defendants. Secondly, the plaintiff says that the defendants are estopped from raising this contention of what passed in Court on the delivery of the judgment of the Appellate Court.

(3.) His Lordship after dealing with the questions of waiver and limitation which are not necessary for the purpose of this report proceeded as follows as regards the question of estoppel. Ed.