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1993 DIGILAW 713 (MAD)

Palaniraja and others v. Jayalakshmi

1993-10-29

RATNAM

body1993
Judgment :- 1. This civil revision petition has been preferred by defendants 1 and 3 to 5 in O.S.No.124 of 1988, First Additional Subordinate Judge’s Court, Pondicherry, against the finding in favour of the respondent-plaintiff in the suit relating to the preliminary issue on limitation. In the suit (O.S.No.124 of 1988) instituted by the respondent, she had prayed for the recovery of a sum of Rs.31,429 together with interest, said to be due on two promissory notes dated 18.8.1982 and 25.3.1983 for Rs.15,000 and Rs.4,100 respectively. Prior to the institution of the suit, on 13.3.1988 by a notice the respondent made a demand for the repayment of the principal amounts together with interest and since that was not complied with, the suit was instituted on 30.3.1988. Amongst others, an objection was raised by the petitioners in the written statement to the effect that the suit was barred by limitation. That issue was taken up as a preliminary issue and the court below following an unreported decision in M.IIIampuranam v. M.Balakrishnan, C.R.P.No.649 of 1983, dated 3.8.1987 found that the period of limitation of thirty years provided under Art.2262 of the French Code Civil would apply and the suit was instituted in time. Aggrieved by the finding so rendered, the petitioners, who are the first defendant and the legal representatives of the deceased second defendant have invoked the revisional jurisdiction of this Court under Sec.115, C.P.C. 2. Learned counsel for the petitioners, encouraged by a recent judgment in Kandasami Mudaliar v. Muthukrishna Moorthy, (1993)1 L.W. 574 contended that in respect of promissory notes, Art.179 of the French Code de Commerce, would apply and that provided for a period of limitation of three years and therefore, the suit instituted on 30.3.1988, was barred. In addition, it was submitted that even after coming into force of Sec.6 of the French Establishments (Application of Laws) Order, 1954, extending the applicability of the provisions of the Negotiable Instruments Act (XXVI of 1881). Art.179 of the French Code de Commerce, continued to apply, providing for a period of limitation of three years and therefore, the suit instituted by the respondent, was barred. Art.179 of the French Code de Commerce, continued to apply, providing for a period of limitation of three years and therefore, the suit instituted by the respondent, was barred. On the other hand, learned counsel for the respondent contended that after the coming into force of Scc.6 of the French Establishments (Application of Laws) Order 1954, the provisions of the Negotiable Instruments Act, 1881, were extended to Pondicherry Territory and on such extension, the provisions of French Code de Commerce ceased to have effect and therefore, Art. 179 of the French Code de Commerce and the other related provisions, had no application whatever. Learned counsel further submitted that on the extension of the provisions of the Limitation Act, 1963 to the Pondicherry territory with effect from 1.1.1964, the normal period of limitation in respect of the suits on promissory notes would only be three years, but, under Sec.29(2) of the Limitation Act, 1963, read with Sec.3 thereof, the provisions of French Code Civil prescribing a period of thirty years, would be in the nature of a special law and that has to be read into the schedule of the Limitation Act with reference to the period of limitation prescribed for the institution of suits and if so done, under Art.2262 of the French Code Civil, a period of thirty years would be available and the court below, was, therefore, right in its conclusion with regard to the question of limitation. Reliance in this connection was also placed on the decisions in Sendamarai Animal v. Vijaya Rajagopal Chettiar, (1984)1 M.L.J. 324 , Rajamannar Chettiar v. Velyauthu Chettiar, (1984)2 M.L.J. 467 and Mary Roy v. State of Kerala, A.I.R. 1986 S.C. 1011. 3. The short question that arises for consideration is whether the court below was right in the view it took regarding the question of limitation. Under Sec.6 of the French Establishments (Application of Laws) Order, 1954, unless otherwise specially provided in the Schedule, all laws in force in the French Establishments, immediately before the commencement of the order, which correspond to the enactments specified in the schedule, shall cease to have effect, save as respects things done or omitted to be done before such commencement. Serial No.2 in the schedule is the Negotiable Instruments Act, 1881 and no special provision has been made in the Schedule with reference to the provisions of that Act. Serial No.2 in the schedule is the Negotiable Instruments Act, 1881 and no special provision has been made in the Schedule with reference to the provisions of that Act. From this it would follow that the provisions of the Negotiable Instruments Act become applicable on and from 1.11.1954 and the provisions of the French Code de Commerce, particularly, Arts. 183, 184, 185 and 179 would cease to apply, in respect of the promissory notes, bills of exchange, etc., The argument of learned counsel for the petitioner that Art. 179 providing for a limitation of three years would continue to operate, unaffected by the extension of the application of the provisions of the Negotiable Instruments Act, 1881, on and from 1.11.1954, is unacceptable, for, there was a wholesale substitution of all provisions in the French Code de Commerce in relation to bills of exchange, promissory notes, etc., by extending the applicability of the provisions of the Negotiable Instruments Act. When the provisions of the Negotiable Instruments Act were extended to the Pondicherry territory, the corresponding law in the provisions of the French Code de Commerce, insofar as bills of exchange, promissory notes, etc. were concerned, ceased to have effect and though it may be that there was a provision in the French Code de Commerce in Art.179 providing for a period of limitation of three years, that provision also ceased to have effect, on the extension of the applicability of the provisions of the Negotiable Instruments Act, 1881. It may be that the provisions in the French Code de Commerce were a combination of the law relating to promissory notes, bills of exchange, etc., and also with reference to the period of limitation in respect of these instruments. However, on the extension of the provisions of the Negotiable Instruments Act, 1881, to the Pondicherry territory, all the provisions of the French Code de Commerce, in relation to bills of exchange and promissory notes, ceased to have any effect and it is further seen that there is no modification provided in the schedule, in relation to the applicability of the provisions of the Negotiable Instruments Act. Under these circumstances, all the provisions of the French Code de Commerce relating to bills of exchange, promissory notes, etc., inclusive of the provision in Art.179, providing for limitation, should be regarded as having ceased to apply. Under these circumstances, all the provisions of the French Code de Commerce relating to bills of exchange, promissory notes, etc., inclusive of the provision in Art.179, providing for limitation, should be regarded as having ceased to apply. In that view, it would follow as held in Sendamarai Animal’s case, (1984)1 M.L.J. 324 , though in relation to a suit on a mortgage, that Sec.29(2) read with Scc.3 of the Limitation Act. 1963, has the effect of preserving the period of limitation made available earlier under the French Code Civil and in view of Art.2262 of the French Code Civil, which would be a local law, within the meaning of Sec.29(2) of the Limitation Act, 1963, its provisions have to be read into the Schedule to the Limitation Act mutatis mutandis. Viewed thus, under Art.2262 of the French Code, Civil, the period of limitation is thirty years and that period would be available to the respondent for instituting the suit. Even assuming that Art.179 of the French Code de Commerce stood preserved, despite Sec.6 of the French Establishments (Application of Laws) Order, 1954, the suit instituted cannot be regarded as barred by limitation. Kandasami Mudaliar’s case, (1985)1 L.W. 574, relied on by learned counsel for the petitioner, referring to Art.179 held that the word’ maturity in relation to promissory note, could refer only to the date of demand and in this case, the demand had been made on 13.3.1988 and the suit, having been instituted on 30.3.1988, within three years from the date of demand, even as per Art.179 would be in time. 4. For the foregoing reasons, the contention put forward by learned counsel for the petitioners that the suit instituted by the respondent is barred, cannot be accepted and the court below was right in its conclusion on the preliminary issue relating to limitation. The civil revision petition is dismissed with costs.