HARKUBAI FAKIRCHAND SHET Vs. SHANKERBHAI ZAVERBHAI GUJARATI

JUDGEMENT

(1.) This appeal by the plaintiff in a suit to enforce payment under a promissory note has led to an interesting discussion of the law of limitation. On the merits the plaintiff has succeeded in the Court below; but his suit has been dismissed as barred by limitation and not saved by the provisions of Section 20 of the Indian Limitation Act, 1908.

(2.) On January 2, 1933, the promissory note for Rs. 5,400 now sued upon was executed by defendant No. 2 on behalf of the suit shop. It contains three endorsements, of which the last is an endorsement of the payment of Rs. 75 on October 13, 1935, in the handwriting of defendant No. 2. On October 13, 1938, exactly three years after, the present suit was brought in the Nasik Court. On November 29, 1939, it was held by that Court that the Court had no jurisdiction, and the plaint was ordered to be returned. On Saturday December 9, 1939, the plaint was endorsed as returned to the plaintiff's pleader, and on Monday, December 11, 1939, it was re-filed in the Court at Nadiad. The point of limitation taken in the Court below arose out of Section 20 of the Indian Limitation Act. Section 20, so far as it is material, provides that "Where interest on a debt is, before the expiration of the prescribed period, paid as suck by the person liable to pay the debt, or by his agent duly authorised, or where part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorised, a fresh period of limitation shall be computed from the time when the payment was made;" and then follows a proviso with which we are not now concerned. The plaint stated that the payment of Rs. 75 was credited towards interest but did not in terms say that interest had been "paid as such" within the meaning of Section 20. The written statement of defendant No. 2 denied that it was paid towards interest and pointed out that the endorsement did not say that it was paid towards interest. The trial Court held that it could not be regarded as a payment towards interest as such, and it also held that there was no evidence from which the Court could come to the conclusion that the payment was made towards principal. On the contrary it pointed out that the plaintiff himself in his plaint having stated that it was credited towards interest it would be difficult for him to establish a case of its having been paid towards principal. On that ground alone the suit was dismissed, and the plaintiff now comes in appeal.

(3.) I do not propose to go as fully into the discussion that has taken place as I should otherwise have done, since the appeal in our view must fail on a question of fact. I shall however briefly indicate the lines which the discussion has taken, In support of the decree it has been argued on behalf of the defendants-respondents that, quite apart from Section 20 of the Indian Limitation Act, the suit is out of time because the period spent in prosecuting the suit in the Nasik Court, which had no jurisdiction to entertain it, is in this case incapable of saving limitation in spite of Section 14 of the Act. The argument takes two forms. In the first place it is pointed out that the order of the Court declining jurisdiction was passed on November 29, 1939, but the suit was not re-filed in the Nadiad Court until December 11, so that having been originally filed on the last day of limitation it was at least twelve days out of time. Alternatively it is argued that if the date endorsed on the plaint as the date of return, namely December 9, is taken to be the date up to which the plaintiff was prosecuting with due diligence his action in a Court which had no jurisdiction to entertain it, even so the suit is out of time because, it having originally been filed on the last day of limitation, it was not possible to file it two days after the plaint was returned and still save limitation. We do not think that in this case the date of declining jurisdiction should be taken to be the extreme limit of the period during which the plaintiff can be taken to have been prosecuting his suit with due diligence in the wrong Court. It is true that it is not in every case that the date of the actual return of the plaint should be taken to be the date on which the plaintiff could be taken to have been prosecuting his suit; see, for example, Neerendrabhoosham Lahiri V/s. Berhampur Oil Mills, Limited (1933) I.L.R. 60 Cal. 1122 and Maneklal Mansukhbhai V/s. The Suryapur Mills Co. Ltd. (1927) I.L.R. 52 Bom. 477 But the authorities make it clear that in a proper case it is open to the Court to treat the date of actual return as the limit of the period to be excluded under Section 14 of the Indian Limitation Act rather than the date on which the Court passes orders declining jurisdiction, though of course it would not do so if it thought that in the interval the plaintiff had been guilty of negligence. In this case we do not see any reason for supposing that the plaintiff was guilty of negligence; and that being so, we think that the date of the actual return of the plaint can be taken to be the appropriate date for the purposes of Section 14. If that is so, then by reason of explanation I to Section 14 the entire period from October 13, 1938, to December 9, 1939, (both days inclusive), must be excluded. The following day, which was Sunday, also must be excluded; and a plaint filed on Monday, December 11, 1939, can be deemed to have been filed exactly three years to a day after the date of the payment. The fallacy in the argument addressed to us on behalf of the defendants lies in its failure to notice the effect of explanation I to the section.