Pretent: Mr. Justice Middleton.SUPPRAMANIAPILLAI v. KALIK.UTTY.C. B., Batticaloa, 12,626.
‘Bond” meaningof—Prescription—Agreement-to deliver movable
property—Ordinance No. 22 of 1871.
Where the defendant haring borrowed a certain quantity ofpaddy from the plaintiff Agreed by a notarially attested document,stamped as an agreement, to return the said quantity of paddy,together with an additional quantity by way of profit, and indefault of such delivery, to pay the value thereof,—
Held, that the said agreement was a " bond " within the meaniugof section 6 of the Prescription Ordinance (No, 22 of 1871), and wasprescribed in ten years.
Tissera v. Tissere1 followed.
XI HE plaintiff sued the defendant to recover a sum of Rs. 260
X and interest alleged to be due on an agreement, which was osfollows: —
“ The 2nd day of August 1900. I, Sinnetamby Kalikutfy ofMangentoduvai in Manmunai pattu, Batticaloa, have justly andtruly borrowed and received from Settiyar Suppramaniapillai ofArappattai, in the said pattu, a quantity of ten amunams of paddy.Its present value is rupees one hundred. To this ten amunams ofpaddy of this value, adding five amunams of paddy, being profit atthe rate of 50 per cent, per annum, the total quantity of principaland profit fifteen amunams of paddy, free of damage, chaff, andeheenatty, measuring with a marakal exactly holding seven peers,I shall deliver to the said Suppramaniapillai or to his legal heirs,&c., in one instalment within the month of June, 1901, next ensuing,at the threshing-floor of Natkaranvelv, and defray the expenses ofremoving the same by cart to Yadankaraiturai, cause endorsementbe made in this and redeem this deed. In default, adding theprofit mentioned herein for the said term with further profit on thesaid principal quantify of ten amunams of paddy at the aforesaidrate of 50 per cent, per annum from the date of default till recovery,he may sue me at law for the value of the total quantify of principaland accrued profit paddy, calculating value at the rate paddy may beselling at Puliyantivu at the time of action, and recover the same fromme and from all the property whatsoever belonging to me. Herebyrenouncing the benefit of contesting that I did not measure and receivethe said paddy I set my signature to this and grant this deed.
“ (Signed) S. Kalikcty.
“ (Signed) N. D. N. Sinnetambt,
“ Notary Public.”
i 11896) 2 N. L. B. 238.
( 72 )
190.1. The agreement was dated August 2, 1900, and the action wasMarch 6.Instituted on August 1, 1907. The defendant pleaded that the
—plaintiff’s claim was prescribed under section 7 of Ordinance No. 22
The Commissioner of Requests (G. V. Woodhouse, Esq.) held asfollows (October 3, 1907): —
“ This is an action on a notarially attested instrument wherebydefendant agrees to deliver certain paddy to the plaintiff in June,1901. The defendant pleads prescription. The question is whetherthe plaintiffs claim falls under section 6 or under section 7 ofOrdinance No. 23 of i871. If it falls under section 6, of course theclaim is not prescribed, and plaintiff would be entitled to judgment-.The authority quoted by Mr. Kadramer (I S. 0. R. 143) was an actionon a notarially attested document, a dowry deed, where thedefendants undertook to deliver certain movables by a certaindate. The defendants (in that case) having failed to deliver someof the goods on the appointed date, the donees instituted anaction.'
“ It was held in appeal that as ‘ section 6 applies to what aretechnically called bonds, either mortgage bond or bonds conditionedfor the payment of money or the performance of an agreement, thedeed in question does not fall under either of these heads. It isa simple promise to deliver certain movable property within a giventime. That being so, it more properly falls within what in section.7 is called a written promise, and is prescribed.’
“ The authority quoted by Mr. Setukavaler (2 N. L. R. 238)refers to a notarially attested writing, but clearly conditioned forthe payment of money. There can be no doubt that such -aninstrument must fall under section 6 of the Ordinance.
“ In my opinion the document we "have to deal with in this case,though notarially attested, is not an agreement conditioned for thepayment of money. It is an agreement to deliver certain movables,namely, paddy, by a certain date; that being so, the case seems tome to be on all fours with the case cited by Mr. Kadramer. It istrue that in this district most of the so-called debt bonds referto paddy, paddy being to a great extent the circulating mediumamongst us; still I do not think that fact would take the case outaf the category of agreements to deliver movables.
" I would dismiss plaintiff’s action with costs.”
The plaintiff appealed.
Bawa, for the plaintiff, appellant.
Priiis, for the defendant, respondent.
Cur. adv. vult.
( 73 )
•March 6, 1908., Midd;£to. J.—
This was an action on what is described in' the p.’aint as a notarialbond dated August 2, 1900, for the recovery of Rs. 260, value of20 amunams of paddy alleged to be due thereon. The only questionin the case, which also composed the only issue, was whether thebond is prescribed. If it is an instrument such as comes withinthe description of those contemplated by section 6 of OrdinanceNo. 22 of 1871, the plaintiff is entitled to sue on it within ten yearsfrom the time limited in the section; but if it is an instrument suchas is contemplated by section 7, then the limit of time for suing onit is reduced to six years.
The Commissioner of Requests held that it fell within section 7of the Ordinance, mainly on the ground that the facts appeared tobe on all,fours with the case reported at page 42 of I Supreme CourtReports, and dismissed the plaintiff’s action.
The document in question marked A was as follows, accordingtc the translation in the record: —
Debt No. 1,153.
‘ ‘ The 2nd day' of August, 1900. I, Sinnetamby Kalikutty ofMangentoduvai in Manmunai pattu, Batticaloa, have justly andtruly borrowed and received from Settiyar Suppramaniapillai ofArappattai, in the said pattu, a quantity of ten amunams of paddy.Its present value is rupees one hundred. To this ten amunams ofpaddy of this value, adding five amunams of paddy, being profit atthe rate of 50 per cent, per annum, the total quantity of principaland profit fifteen amunams of paddy, free of damage, chaff, andcheenatty, measuring with a marakal exactly holding seven peers,I shall deliver to the said Suppramaniapillai or to his legal heirs,Ac., in one instalment within the month of June, 1901, next ensuing,at the threshing-floor of Natkaranvely, and defray the expenses ofremoving the same by cart to Vadankaraiturai, cause endorsementbe made in this and redeem this deed. In default, adding the profitmentioned herein for the said term with further profit on the saidprincipal quantity of ten amunams of paddy at the aforesaid rateof 50 per cent, per annum from the date of default till recovery, hemay sue me at law for the value of the total quantity of principaland accrued profit paddy, calculating value at the rate paddy maybe selling at Puliyantivu at the time of action, and recover the samefrom me and from all the property whatsoever belonging to me.Hereby renouncing the benefit of contesting that I did not measureand reieive the said paddy I set my signature to this and grant thisdeed.
“ (Signed) S. Kalikutty.
“ (Signed) N. D. N. Sinnetamby,“ Notary Public.”
( 74 )
This documeut is notarially executed, and is stamped as an agree-ment, of which the matter thereof does not exceed value Ks. 100,and not as a promissory note. The Tamil document A producedbears no stamp on it, but recites in the attestation clause that theduplicate bears a 25-cent stamp. It is I presume a copy of thenotary's protocol.
I't is perfectly clear first of all, as Bonser C.J. said of the instru-ment in the case of Tissera v. Tissera,1 that this is not a promissorynote within the definition in section 83 of the Bills of Exchange Act,1882. Is it then a written promise, contract, bargain, or agreement,or written security falling within the description of instruments setfor in section 7 of the Ordinance? It is an instrument promisingto return with high interest paddy received in one instalment withina stated month of a stated year, and iii default of doing so to submitto an action at law for the value of the stipulated amount of paddy,with further interest, all to be computed in money.
In the case reported in 2 N. L. R. 238 the document was to a certainextent a conventional mortgage, as well as what the Court held to.be a bond conditioned for the payment of money. In the presentcase the document has no pretence to be a mortgage, conventionalor otherwise, but it is conditioned for the payment of money andnotnrirtlly executed. It is not a simple agreement to deliver upmovables within a certain period, as in the case of Kandaperumalv. Kandaperumal,“ although the document in that case appears, tohave been notarially executed.
As regards section 6 of Ordinance No. 22 of 1871, it seems to meto contemplate only such instruments as are usually embodied inthe external formality and solemnity of a deed under English Law.In our system of legal procedure the nearest approach to a deed inpoint of solemnity is a notarially executed document. Bonser. C.J.in Tissera v.Tisserasaid that in this Island adeed mightbe
defined as awritingattested by a notary,anda bond asan
acknowledgment of or promise to pay a debt in an instrumentattested by a notary.
I think, therefore, that if a document purports to be stamped asan agreement executed notarially, and contains a condition for thepayment of money on the non-fulfilment of its agreed terms, thatit may well bedeemedto be a bond within themeaning of section 6,
on the principle laiddown by Bonser C.J.andassented toby
Lawrie J. in Tissera v. Tissera.
The reasoning of the Supreme Court in the case reported atpage 297 of Wendt’s Reports appears also to support the view Ihave taken. The instrument in the case of Mohamadaly Marikarv. Assen Naina Maricar3 was not notarially executed, although inits terms it described itself as a bond.
« (1896) 2 N. L. R. 288.2 (1892) 1 S. C. R. 142.
2 (1890) 1 C. h. R. 40.
( 75 )
In my opinion, therefore, the judgment of the Commissioner ofBequests must be set aside, and the case sent back to him to enterjudgment according to law.
This appeal will be allowed with costs.