P C MUTHU CHETTIAR Vs. RENGAPPA NAIDU

JUDGEMENT

(1.) The point for decision is what is the article of limitation applicable to the cause of action against defendant 3. He was a surety on a simple money bond for the payment of the suit mortgage debt by defendants 1 and 2. He undertook to pay if the principal and interest be not paid as per that bond, i. e., Ex. A.

(2.) Under Ex. A the period of the mortgage was ten months, but by a residuary clause it was stated that in default the mortgagor will pay the principal and the accruing interest "whenever you demand." It is pleaded that, as the mortgagor was bound to pay "on demand" at any time, the surety is equally liable. But plaintiff never at any time pleaded that he made any demand under this clause, and in his plaint he has clearly stated only one date for his cause of action, viz. the date of the expiry of the mortgage period. Hence there has been no breach of contract to pay on demand, no failure by the mortgagor to pay as per that clause in the bond and therefore no liability on account of any such failure has fallen upon the surety.

(3.) Hence the plaintiff is driven back on the limitation period applicable on the footing that the failure to pay as per the bond was only on the expiry of the mortgage period, viz., in June 1915. The suit was filed on 31 March 1922. Hence it is out of time unless plaintiff can call in aid an article of the Limitation Act which gives a period of more than 6 years. He argues that Art. 132 applies, contending that the suit as against the surety is a suit for payment of money charged upon immovable property, because Section 128, Indian Contract Act, makes the liability of the surety co-extensive with that of the principal. Even so, I cannot see how that converts a suit against the surety on a mere money bond into a suit for payment of money charged upon immovable property.