Research › Browse › Judgment

Madras High Court · body

1987 DIGILAW 295 (MAD)

Gomathi Ammal v. S. Senthattia Pillai

1987-09-08

S.A.KADER

body1987
JUDGMENT: The appeal is against the judgment and decree of the Court of the Sub-Judge, Tuticorin in O.S.306 of 1978. The unsuccessful plaintiff is the appellant. 2. This is a suit on a promissory note for Rs.8,160 with subsequent- interest and costs. According to the plaintiff, the defendant borrowed from her a sum of Rs.8,160 on 1.9.1974 and executed the suit promissory note agreeing to repay the same with interest at 12 per cent per annum. The plaintiff further claimed that the suit was not barred as she believed bona fide that the defendant was entitled to the benefits of the Moratorium Laws and the period between 15.1.1975 and 15.7.1978 has to be excluded, in computing the period of limitation. 3. The defendant admitted the execution of the promissory note but pleaded that he did not borrow any sum on it from the plaintiff. He contended that the suit promissory note was only a renewal of a prior promissory note dated 1.9.1971, executed by him in favour of the plaintiff's brother Lakshmana Pillai. It is his further case that the plaintiff's father Punnavanam Pillai wanted the defendant to take assignment of two mortgages in his favour and as the defendant had no money, he executed a promissory note on 1.9.1971 for Rs.6,000 in favour of the plaintiff's brother and the mortgages were accordingly assigned in his favour. On 1.9.1974, the said Punna-vanam Pillai wanted to renew the promissory note and took the promissory note in the name of his daughter. Subsequently, the said Punnavanam Pillai demanded money for the assignment of the mortgages and the defendant paid Rs.7,000 in full quit, but due to close relationship he did not take return of the promissory note. After the death of Punnavanam Pillai, the plaintiff and her brother having obtained possession of the suit promissory note, have filed this false suit. The defendant also contended that he was a teacher paying professional tax and that he is also an agricultural income tax assessee and the plaintiff's claim that she bona fide believed that the defendant was entitled to the moratorium law is false. 4. On the above pleadings the following issues were framed for trial by the trial court- 1. Whether the suit promissory note is not supported by consideration? 2. Whether the suit promissory note is a renewal of a prior promissory note in favour of the plaintiff's brother? 3. 4. On the above pleadings the following issues were framed for trial by the trial court- 1. Whether the suit promissory note is not supported by consideration? 2. Whether the suit promissory note is a renewal of a prior promissory note in favour of the plaintiff's brother? 3. Whether the suit is in time? 4. To what relief is the plaintiff entitled? 5. The learned Subordinate Judge held on issues 1 and 2 that the suit promissory note was fully supported by consideration and that it was not a renewal of any prior promissory note. But on issue No.3, he held that the suit was out of time. Consequently he non-suited the plaintiff, but without costs. Aggrieved thereby, the plaintiff has come in appeal. 6. The only point for consideration is whether the suit claim is in time? 7. Ex.A1 is the suit promissory note dated 1.9.1974, executed by the defendant in favour of the plaintiff for Rs.8160. The suit has been instituted only on 26.8.1978 more than three years, after the execution of the suit promissory note. The contention of the plaintiff is that she bona fide believed that the defendant was entitled to the benefits of the moratorium laws, namely, the Tamil Nadu indebted Agriculturists (Temporary Relief) Act 10 of 1975 and the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act 15 of 1976 and the period between 15.1.1975 and 15.7.1978 has, therefore, to be excluded in computing the period of limitation and if the above period is so excluded, the suit is in time. Act 10 of 1975 and Act 15 of 1976 defines agriculturist thus- “2(b) ‘agriculturist’ means a person who owns an interest in agricultural land, and who, by reason of such interest, is in possession of such land or is in receipt of the rents or profits thereof and shall include a lessee; but shall not include -- (i) a firm registered under the Indian Partnership Act, 1932 (Central Act 9 of 1932 ), or a company as defined in the Companies Act, 1956 (Central Act I of 1956 ), or a corporation formed in pursuance of an Act of Parliament of the United Kingdom or of any Special Indian Law; or, (ii) any person who was assessed to income tax under the Indian Income-tax Act,1961 (Central Act 43 of 1961 ) or to agricultural income tax under the Tamil Nadu Agricultural Income-tax Act,1955 (Tamil Nadu Act V of 1955 ), or to sales tax under the Tamil Nadu General Sales-Tax Act, 1959 (Tamil Nadu Act 1 of 1959 ) or under the Central Sales Tax Act, 1956 (Central Act 74 of 1956) in any of years 1971-72, 1972-73, 1973-74.” We shall first see whether the defendant is an agriculturist within the meaning of the Act, in order to bring him within the ambit of this Act and to enable him to have the benefit of the Moratorium under S.3 of the Act, which bars the institution of any suit for the recovery of a debt or application for money against any agriculturist. There is no doubt that the defendant owns agricultural lands and the only question is whether he is assessed to income tax or agricultural income tax or sales tax. It is not the case of the defendant he is assessed to income tax or sale tax. His claim is that he is assessed to agricultural income tax and Ex.B6, certificate issued by the Agricultural Income-tax Officer, Tirunelveli dated 15.12.1978 is relied upon to show that he has been assessed to agricultural income tax. The certificate reads that the defendant Senthatti, son of Sankaralingam Pillai of Mudithandal village is an agricultural income tax assessee in the circle from the assessment year 1972-73. No doubt, the certificate has been marked in the Court below, but it has not been duly proved by examining the Officer, who issued the certificate. The certificate reads that the defendant Senthatti, son of Sankaralingam Pillai of Mudithandal village is an agricultural income tax assessee in the circle from the assessment year 1972-73. No doubt, the certificate has been marked in the Court below, but it has not been duly proved by examining the Officer, who issued the certificate. Hence the certificate is no substitute for the production of assessment orders in any of the years 1971-72, 1972-73,1973-74, 1974-75. In the absence of any assessment order, we have only to hold that the defendant has not been assessed to agricultural income tax and hence he is an agriculturist within the meaning of Act X of 1975 and XV of 1976. UnderS.3 of both these Acts, no suit could have been instituted against the defendant during the period between 15.1.1975 and 14.5.1978 and when this period is excluded the suit filed on 26.8.1978 is well in time. 8. Assuming without admitting that the defendant is not an agriculturist within the meaning of Act X of 1975 or Act XV of 1976 , on the ground that he has been assessed to income-tax, during any of the years 1971-72, 1972-73, 1973-74, 1974-75, the further question is whether the plaintiff bonafide believed that the defendant is an agriculturist entitled to the benefits of the moratorium legislations and refrained from instituting the suit.S.5 which is the same in both these Acts, reads thus- “S.5 Exclusion of time for limitation: (1) In computing the period of limitation or limit of time prescribed for a suit for the recovery of a debt or an application for the execution of a decree passed in such suit, the time during which the institution of the suit or the making of the application was barred byS.3 of this Act or during which the plaintiff or his predeces-sor-in-title believing in good faith thatS.3 of this Act applied to such suit or such application, refrained from instituting the suit or making the application, shall be excluded. Explanation: “good faith” shall have the meaning assigned to it inS.3 (22) of the General Clauses Act, 1897 (Central Act X of 1897). Explanation: “good faith” shall have the meaning assigned to it inS.3 (22) of the General Clauses Act, 1897 (Central Act X of 1897). Sub-S(2): Where in a suit or an application in which the question of the exclusion of time under sub-S(l) arises, the defendant or the respondent, or one of the defendants or respondents, with respect to whom the question is raised, would have been an agriculturist but for the fact that in the year ending 1971-72, 1972-73, 1973-74, he had been assessed to Income-tax under the income-tax Act, 1961 (Central Act XLIII of 1961 ), or to agricultural income tax under the Tamil Nadu Agricultural Income-Tax Act 1955, (Tamil Nadu Act V of 1955 ) or Sales Tax under the Tamil Nadu General Sales Tax Act, 19 (Tamil Nadu Act I of 1959 ) or under the Central Sales Tax Act, 1956 (Central Act LXXIV of 1956), it shall be-conclusively presumed that in refraining from instituting the suit or making the application, the creditor believed in good faith that such defendant or respondent was an agriculturist.‘ UnderS.5(2) of the Act, if the defendant would have been an agriculturist, but for the assessment of income tax or agricultural income-tax or sales-tax, it shall be conclusively presumed that the plaintiff in restraining from instituting the suit, believed in good faith that such defendant was an agriculturist. The case of the defendant is that he has been assessed to agricultural income-tax during the relevant years and hence he is not an agriculturist within the meaning of any of these two Acts. His case falls directly within the ambit of S.5(2) of the Act. The plaintiff must therefore be held to have restrained from instituting the suit believing in good faith that such defendant was an agriculturist. The language ofS.5(2) draws a conclusive presumption and underS.4 of the Indian Evidence Act, when one fact is declared by this Act to be conclusive proof of another fact, the Court shall, on proof of one fact, record the other as proved and shall not allow evidence to be given for the purpose of disproving it. The language ofS.5(2) draws a conclusive presumption and underS.4 of the Indian Evidence Act, when one fact is declared by this Act to be conclusive proof of another fact, the Court shall, on proof of one fact, record the other as proved and shall not allow evidence to be given for the purpose of disproving it. The fact that the defendant would be an agriculturist within the meaning of Act X of 1975 or Act XV of 1976, but for the assessment of agricultural income-tax, leads to the conclusive presumption that the plaintiff refrained from instituting the suit believing in good faith that the defendant was an agriculturist, entitled to the benefit of these two moratorium enactments. Hence, even assuming that the defendant is not an agriculturist within the meaning of those two Acts, the plaintiff must be deemed to have believed in good faith, that, he was entitled to the benefit of this Act and retrained from instituting the suit. The period between 15.1.1975 and 14.7.1978 has, therefore to be excluded. The suit filed on 26.8.1978 is in time. The point is found in favour of the appellant. 9. In the result, the appeal is allowed and the judgment and deeree of the lower Court are set aside and the suit is decreed, as prayed for, with costs throughout. R.S. ----- Appeal Allowed.