CHARU CHANDRA BANDOPADHAYA Vs. MRLFAITHFUL

JUDGEMENT

(1.) In this case defendants Nos. 1 and 2 borrowed certain sum from the plaintiff on a registered promissory note payable on demand. Defendants Nos. 3 and 4 in a letter addressed to the plaintiff agreed as follows: "My brother Shib Chandra Bandopadhaya is, for his own necessities, borrowing from yon Rs. 150. There is no objection to your paying him the money and we make ourselves fully liable for it. On that account you need have no anxiety. He will pay your interest month by month. As to that there will be no excuse or objection."

(2.) The suit was instituted more than three years from the date of this letter. The lower Court overruled the plea of limitation raised by defendants Nos. 3 and 4 and decreed that suit against all the defendants. The present Rule was issued under Section 25 of the Small Cause Courts Act at the instance of defendants Nos. 3 and 4, and the only question for our consideration is whether the decision on the question of limitation is correct. I feel vary little difficulty in holding that the suit against the sureties is barred. In the case of Sreenath Roy v. Peary Mohan (1) it was held that a promissory note payable on demand is a present debt payable without any demand and that the liability of the surety in such oases arises simultaneously with that of the debtor, i. e., with the making of the advance. The liability of a surety does not necessarily in all oases arise simultaneously with that of the principal. It often happens that the remedy against the principal is barred when the liability of the surety arises. The question depends on the terms of the contract of guarantee by which the surety has bound himself. In this case, having regard to that, the liability of the sureties arose simultaneously with the making of the advance and as such the suit against them is barred under Article 115 of the Limitation Act.

(3.) It has, however, been argued that the contract between the debtor and the creditor being in writing registered and the sureties having rendered themselves responsible for the due performance of that contract, the Article of the Limitation Act applicable even against the sureties is Article 116.