P M A VALLIAPPA CHETTY Vs. SNSUBRAMANIAN CHETTY

JUDGEMENT

(1.) I have the great advantage of having read the Judgment prepared in this case by my learned brother.

(2.) It is often a difficult question to decide whether a statutory provision has been made solely for the benefit and protection of the individual in his private capacity or whether some public right and public policy is also involved in it. I am inclined not to go behind the plain words of a statute. Section 22 of the Negotiable Instruments Act clearly says that " every promissory note which is not expressed to be payable on demand, at sight or on presentment is at maturity on the third day after the day on which it is expressed to be payable." In the Contract Act, in the Transfer of Property Act, in the Negotiable Instruments Act and several other Acts there are numerous provisions made solely for the benefit and protection of the individual in his private capacity ; and yet the legislature has thought it necessary whenever it wanted to indicate that the parties can waive the benefit of such provisions to begin such sections, with the words " in the absence of a contract to the contrary" or similar words. As Section 22 of the Negotiable Instruments Act omits in a marked manner the provision in Section 14 of the English Bills of Exchange Act allowing the parties to contract that the bill shall come to maturity on the date fixed in it without the addition of days of grace I think that the promissory note governed by the Negotiable Instruments Act cannot dispense with the days of grace. As regards the case of The East Indian Company v. Oditchurn Paul (1849) 7 Moore s P.C. 85 S.C. 13 E.R. 811 it is of course binding on me but it seems to me that it is rather against the defendant ; Lord Campbell s words at page 112 are "There might be an agreement that in consideration of an inquiry into the merits of a disputed claim, advantage should not be taken of the Statute of Limitations and an action might be brought for breach of such an agreement " (that is, as I take it, for damages for breach of such agreement); His Lordship however proceeds to say " but if to an action for the original cause of action, the Statute of Limitations is pleaded upon which issue is joined...the defendant notwithstanding any agreement is entitled to the verdict." This rather shows that the Statute law could not be evaded by agreement of parties though such an agreement might form the basis of an independent action. I need not say that I put forward this conclusion of mine with some diffidence in view of the arguments which have been put forward by my learned brother to uphold the contrary view.

(3.) I entirely agree however with my learned brother on the 2nd point discussed in his judgment. I do not believe that the 2nd plaintiff had the authority of the 1st plaintiff to present or to sign the plaint on behalf of the 1st plaintiff when the 2nd plaintiff so signed and presented it.