DALTON J.—Sabapathy v. Velupillai.
1932Present: Dalton J.
SABAPATHY v. VELUPILLAI.
48—C. R. Mullaittivu, 7,771.
Prescription—Pledge of jewellery—Action for recovery—Cause of action.
The plaintiff pledged certain jewellery with the defendant as securityfor a loan, undertaking to redeem it within a few months. –
Held (in an action to recover the jwellery or its value), that the cause „of action arose on defendant’s refusal to return the jewellery on anoffer made by the plaintiff to redeem it within the time.
PPEAL from a judgment of the Commissioner of Requests,Mullaittivu.
Navaratnam, for plaintiff-appellant.
Thiagarajah (with him Mutthurajah), for defendant-respondent.
August 5, 1932. Dalton J.—
Plaintiff sought to recover from defendant certain jewellery, or in thealternative its value. He states that on September 19 and 20, 1928, hehanded to defendant the jewellery, on security of which, he received aloan of Rs. 30 from defendant. On October 24, 1928, he tendered the sumof Rs. 30 and interest and asked for the jewellery in return, but defendanthas failed to return it. The value of the jewellery is stated to beRs. 139.50.
' 17 N. L. R. 33.
2 10 X. L. It. 304 at p. 311.
192DALTON J.—Sabapctthy v. Velupillai.
The defence was to the effect that plaintiff employed defendant as hisagent to pawn the jewellery, which he did with one Annapillai, who lentRs. 30 on the security of all the jewellery on condition that the pledgeshould be redeemed within a few months. He further pleaded prescrip-tion. When the case was however opened, it was admitted that thejewellery was given by plaintiff to defendant and that the latter gaveplaintiff Rs. 30 upon it. If it be urged that the terms of that admissionmight have been in more definite terms, and are ambiguous, there isa finding on this question of agency against the defendant.
The Commissioner is satisfied, after consideration of the evidence,that defendant was not the agent of the plaintiff, the original transactionbeing between them alone. He has no doubt that defendant pawnedthe jewellery with Annapillai, but whether for his own purposes or toraise the money to lend to plaintiff he is unable to say. With thatfinding of fact I am not prepared to disagree, especially in view of theadmission referred to. There is ample evidence to support it, whichthe Commissioner has carefully considered.
On the plea of prescription the Commissioner finds in favour of defend-ant. He states the original transaction took place on September 19 or20, 1928, and the plaint was field on October 14, 1931, after a lapse ofmore than three years. For that reason, whether one brings the claimunder sections 8 or 10 of the Prescription of Actions Ordinance, he heldthe claim to be prescribed.
The action is one for the recovery of movable property or its value andfalls under section 8 of that Ordinance. The Commissioner is quitecorrect when he points out that the original transaction took place onSeptember 19 or 20, but he is wrong if he holds, as I presume he musthave held, that the cause of action arose at the same time. According tothe defence the money was lent on the condition that the jewellery beredeemed withiu. a few months. On October 24, 1928, plaintiff askeddefendant to return the jewellery, at the same time tendering the sumof Rs. 30 lent to him with the interest. According to the evidence,repeated requests were also made after that, but defendant failed toreturn the articles.
The obligation on the part of the defendant to return the jewellery, onits being redeemed by the plaintiff, was to be performed, according to thedefence “ within a few months ” of the original transaction. Thejewellery was to be redeemed within a few months. Within those limitsthe date for performance of the obligation is indefinite. Applying theprinciples laid 4own Ismail v. Ismail,1 within that time there cannotbe said to have been a breach of the obligation, unless there has beena refusal either on demand or otherwise to perform the obligation. Onthe fact here there cannot be said to have been any breach at an earlierpoint of time than October 24, the date of plaintiff’s first demandfor the return of his jewellery. It is possible the cause of action mayhave arisen even later, but at any rate not before that date. Taking thatdate as the time when the cause of action arose, action having beencommenced on October 14, 1931, the action is not prescribed. Thedecree entered in the lower Court is set aside and a decree entered in
' 22 N. L. R. 476.
GARVIN S.P.J.—Coder v. Fernando.
favour of plaintiff for the return of the jewellery or its value Rs.' 139.50(less the sum of Rs. 30 and interest thereon from the date of the loan toOctober 24, 1928) and legal interest as claimed.
The case will go back for the Commissioner to reckon these amountsand enter the decree in proper form. Plaintiff is entitled to costs’in bothCourts.
SABAPATHY v. VELUPILLAI