VASANJI KALLIANJI UKA Vs. ERUCHSHAW DOSSABHAI HARWAR

JUDGEMENT

(1.) This action raises a question under the Indian Limitation Act. The action is instituted by the mortgagee against the mortgagor on a personal covenant contained in the mortgage deed to recover the amount remaining due to him after the mortgage property was sold. The deed of mortgage is registered and is dated March 19, 1927, and the date of repayment was March 19, 1929. The mortgagee sold the property on November 12, 1929, in exercise of the power of sale reserved to him by the mortgage deed and the deficiency was Rs. 32,199. The suit was filed on January 9, 1934. The only defence is that the suit is barred by the law of limitation. If the shorter period of three years under Art. 66 or Art. 115 applies, the suit would obviously be barred, but saved if the longer period of six years applied under Art. 116 of the Indian Limitation Act of 1908, and this is the only question in the suit.

(2.) I shall first examine the articles of the Indian Limitation Act relevant to the question which I have to decide. Art. 66 of the Indian Limitation Act is in these terms : " On a single bond, where a day is specified for payment", "the period of limitation is three years, and the time from which the period runs is " The day so specified." Art. 115 is : " For compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for," limitation three years, and the time from which the period begins to run being, " when the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases." Art. 116 provides : " For compensation for the breach of a contract in writing and registered," the period of limitation is six years, and the terminus a quo is " When the period of limitation would begin to run against a suit brought on a similar contract not registered," i.e., under Art. 115.

(3.) It is beyond controversy at the present day that the words "Compensation for the breach of a contract" in Articles 115 and 116 would include a claim for an ascertained sum of money payable under a contract. That has been the trend of decisions in this country and this view is accepted by the Privy Council. I need only refer to Tricomdas Cooverji Bhoja V/s. Gopinath Jiu Thakur (1916) I.L.R. 44 Cal. 759