Dharamshi and Another v Singh (C.C. No. 65/1937) [1937] EACA 197 (1 January 1937)

## ORIGINAL CIVIL

## Before WEBB, J.

## JETHALAL AND DHARAMSHI, Plaintiffs

## UJAGAR SINGH, Defendant. C. C. No. 65/1937

Limitation—Action on promissory note—Limitation Ordinance 1934— Period of limitation prescribed by the Ordinance shorter than that prescribed by the Indian Limitation Act, 1877. Indian Limitation Act, 1877, sec. 13 and Sch. II, Art. 73-Limitation Ordinance 1934, secs. 5 (1), 33, 38, 39.

An action on a demand promissory note, dated 12-11-1931, was commenced on 14-6-1937. The defendant had been absent from the Colony from June 1932 to October 1936. On 1-12-1934 the Indian Limitation Act was replaced by the Limitation Ordinance, 1934, which substitutes six years for three years as the period of limitation in such a case, but, by sec. 33, provides that in computing the period of limitation the time during which the defendant has been absent from the Colony shall not be excluded.

Held (18-10-37).—That the Limitation Ordinance, 1934, applies to all claims which were in existence on 1-12-34, and, in respect to such claims replaces the Indian Limitation Act, 1877, subject, however, to the provisions of secs. 38 and 39:

that the words "longer" and "shorter" in sections 38 and 39 of the Limitation Ordinance mean not longer or shorter absolutely, but longer or shorter in relation to the facts and circumstances of the particular case: consequently, in the present case, as the period of limitation prescribed by<br>the Indian Limitation Act, Sch. II, Art. 73 and sec. 13 would have been seven years. the case was governed by section 39 of the Ordinance, and the action, not having been commenced within two years from 1-12-34, was barred by limitation.

Dave for the plaintiffs: By virtue of Sch. II, Art. 73 and sec. 13 of the Indian Limitation Act, 1877, the plaintiffs' claim was in existence on 1-12-1934, therefore section 38 $(d)$ of the Ordinance does The period of limitation prescribed by the Ordinance is not apply. six years (sec. 5 (1)), whereas that prescribed by the Act is three years, therefore section 39 of the Ordinance does not apply. Either under the Act or under the Ordinance the action is in time.

Khanna for the defendant: "Longer" and "shorter" in sections 38 and 39 of the Ordinance mean longer or shorter in relation to the facts and circumstances of the particular case. In this case under the Act the period of limitation would be over seven years, by reason of the defendant's absence and the effect of sec. 13, while the period of limitation prescribed by the Ordinance is only six years (secs. $5(1)$ ) The plaintiffs' claim is barred by section 39. Statutes of and $33$ ). Limitation should be construed in favour of the defendant: Harnett v. Fisher (1927 A. C. 573); Tolson v. Kaye (129 E. R. 1267); Rhodes v. Smethurst (151 E. R. 447); Roddam v. Morley (44 E. R. 622).

Dave in reply.

JUDGMENT.—This is an action on a promissory note for Sh. 2,666/99 dated 12-11-1931 and payable on demand. The action was commenced on 14-6-1937, and the defence is that it is barred by

ν.

limitation. It has been proved that the defendant was absent from the Colony from 24-6-1932 to 10-10-1936, a period of four years and three months.

Under the Indian Limitation Act, 1877; Schedule II, Article 73. the appropriate period of limitation in this case was three years from the date of the note, but by sec. 13 of that Act the period of the defendant's absence should be excluded in computing the period of limitation. Therefore, so far as that Act is concerned, the plaintiffs' right of action would not have become barred until some time in February 1939. But on 1-12-1934 the Indian Limitation Act was replaced by the Limitation Ordinance, 1934. By section 5 (1) it is provided that "all suits founded upon any simple contract... shall be commenced... within six years next after the cause of such suit<br>and not after", but, by section 33, in computing the period of limitation the time during which the defendant has been absent from the Colony shall not be excluded.

In my opinion the Ordinance applies to all claims which were in existence on 1-12-1934, and, in respect to such claims, replaces the Indian Limitation Act, subject, however, to the provisions of sections 38 and 39. These sections (so far as is material to the present case) say that, where the period of limitation prescribed by the Ordinance is longer than that prescribed by the Indian Limitation Act, the Ordinance shall not revive a suit which was barred by the Act on 1-12-1934 (section 38 (1) (d)) and that, where the period of limitation prescribed by the Ordinance for any suit is shorter than that prescribed by the Act, the suit must be commenced within two years from 1-12-1934, or within the period prescribed by the Act, whichever period expires first (section 39).

It would therefore seem that as, by virtue of section 13 of the Act. the plaintiffs' cause of action was in existence on 1-12-1934, therefore, under section 5 $(1)$ of the Ordinance, it would not be barred until 13-11-1937.

But Mr. Khanna's interesting and ingenious argument is that the case comes under section 39 of the Ordinance, and the action should have been commenced before $1-12-1936$ .

At first sight it appears strange to say that the period of limitation prescribed by the Ordinance for this suit, six years, is shorter than that prescribed by the Act, which was three years. But the argument is that, when the Ordinance speaks of "shorter" and "longer", what is meant is, not shorter or longer absolutely, but shorter or longer in relation to the facts and circumstances of the particular case. Here, it is said, the period of limitation prescribed by the Act for this particular case was, in the circumstances, over seven years, while that prescribed by the Ordinance is only six; for the plaintiffs cannot ask the Court to look only at Article 73 of Schedule II, because, without the aid of section 13 their cause of action would have been barred on 13-11-1934, and section 38 (1) $(d)$ of the Ordinance would have applied, but if you have regard to section 13 as well as Article 73, you will find that the period of limitation prescribed by the Act for this suit is longer than that prescribed by the Ordinance and not shorter.

It is true that there are suits for which the Ordinance prescribes a period of limitation which is shorter in the absolute than that prescribed by the Indian Limitation Act; see, for example, Articles 129, 133, 145-149 of Schedule II, and therefore there is a subject matter to which section 39 can apply apart from the facts and circumstances of the particular case. But it seems to me that, since the plaintiffs themselves must rely on the fact of the defendant's absence in order to bring their case outside of section 38 (1) $(d)$ , the defendant is equally entitled to have regard to that fact in calculating what is for this suit the length of the period of limitation prescribed by the Indian Limitation Act.

The question may, I think, be tested in this way: suppose that the date of the note had been 1921 and that the defendant had been absent from the Colony for fourteen years, then, by virtue of section 13, the plaintiffs' right of action would not have been barred on 1-12-1934, when the Ordinance came into force; but, if the plaintiffs are right, section 39 would not have applied, and therefore the appropriate period of limitation must be that prescribed by the Ordinance, namely six years from the date when the cause of action arose, without the exclusion of the period of the defendant's absence from the Colony. In other words, on this construction of the Ordinance its effect would be to bar, at the very instant of its coming into force, a cause of action which was then valid and subsisting under the Indian Limitation Act. Such a result cannot have been intended, - and, in my view, the object of section 39 was to provide for just such a case.

I am, therefore, of opinion that in this case the period of limitation prescribed by the Ordinance is shorter than that prescribed by the Indian Limitation Act; consequently section 39 of the Ordinance applies, and the plaintiffs not having sued within two years from the date upon which the Ordinance came into force, their right of action is barred by limitation.

The point is not free from difficulty, but there is authority that Statutes of Limitation should be construed liberally, and, where two interpretations are possible, the Court should incline towards that which favours the defendant: Rhodes v. Smethurst (151 E. R. 447), Harnett v. Fisher (1927 A. C. 573).

In my judgment, therefore, the action fails and must be dismissed with costs.