Bathula Venkanna vs Namuduri Venkatakrishnayya and Another

Ayling and Napier, JJ.—This appeal arises out of a suit instituted by the Plaintiff to compel the first Defendant to execute a duly registered transfer in respect of a decree in a suit (Original Suit No. 364 of 1904). The first Defendant was the holder of this decree and he had by an agreement (Exhibit F) made with one Jayanti Venkayya agreed that on Jayanti Venkayya paying to him the amount of that decree, he would transfer the decree to the Plaintiff. The particular clauses of that agreement which are important are to the following effect:

The amount was to be paid within six months. The transfer in favour of the present Plaintiff was to be made as soon as the amount in respect of this razinama was paid.

It is to enforce this latter clause that this suit is brought. No point has been taken that it was not open to the Plaintiff, not a party to the contract, to bring a suit for specific performance; so we must deal with it as if that right did vest in him. The lower Appellate Court has held that the suit is primarily barred under Article 113 of the Limitation Act, but that the circumstances under which the first Defendant received the money from the second Defendant constituted him a trustee for the Plaintiff within the meaning of Section 10 of the Limitation Act, and it therefore held that the suit was not barred. Before us this contention was not relied on by the Respondent and we think rightly, for it would be quite impossible to bring this case within the language of that section. But it has been urged by the Respondent that the contract does not contain the date fixed for the performance and that therefore the second clause "when the Plaintiff has notice that performance is refused" is the starting point for limitation and that therefore the suit is not barred. For the Appellant it is contended that the date is fixed for the performance and the suit is out of time. Admittedly of course no specific date was fixed, and the question that remains is whether it is possible in these circumstances to apply the doctrine certum est quod certum reddi potest, so as to bring the case within the article. A very careful argument has been addressed to us by both sides. We have been strongly pressed with the decisions of the Privy Council in Juggomohun Ghose v. Manickchund (1859) 7 M.I.A. 263 and of the Court of Queen''s Bench in Merchant Shipping Co. v. Armitage (1873) 9 Q.B. 99 and London, Chatham and Dover Railway Co. v. South Eastern Railway Co.(1893) A.C. 429. These decisions turned on the construction of the Interest Act which is as follows:

that upon all debts or sums certain, payable at a certain time the jury on the trial of any issue may allow interest.

There is no doubt that the Privy Council in dealing with this clause have given a very restricted meaning to it, and their Lordships give their reasons for so deciding at great length. They point out that the sum may never be due and that even if due it is uncertain in amount at the time of the contract and it necessarily follows of course that the amount which will be payable for interest will be equally uncertain. They also point out that this provision is an alteration of the common law and is in its nature penal and for these reasons they construe the Act strictly.

Merchant Shipping Co. v. Armitage 3.(1873) 9 Q.B. 99 was argued before the Exchequer Chamber and the decision that there was no principal sum payable at a time certain on which interest could run was given by the court after the decision on the main question in respect of which the case is really reported. No reasons are given by the learned Judges for that decision. It appears that about the same time the opposite view was taken by the Court of Queen''s Bench in Duncombe v. Brighton Club and Norfolk Hotel Co. (1873) 10 Q.B. 371. Their Lordships did not consider the policy of the Act but confined themselves to applying the doctrine of "certum est, etc." in its entirety. They quote and follow the language of Lord Kenyon in an old case which language is reproduced as being a correct exposition of the doctrine in Broom''s Legal Maxims; vide page 479. That language certainly is in the widest terms, for it applies the maxim whether the time can be ascertained by any process of computation at the time the contract is made or whether it cannot. I will quote a few words:

That certainty need not be ascertained at the time, for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. As, if a lease be granted for 21 years, after three lives in being, though it is uncertain at first when that term will commence, because those lives are in being, yet when they die it is reduced to a certainty, and Id certum est quod certum reddi potest.

We have therefore a clear conflict on the language of the Interest Act.

Now we have not to decide this question on the construction of that Act, and we must bear in mind the essential difference between the Interest Act and the Limitation Act. As pointed out in the Privy Council case the Interest Act is penal and imposes a higher liability than was known to Common Law. It should therefore be construed strictly. On the other hand, the Limitation Act is one which operates as a bar to a claim that is legally enforceable, and it should therefore be construed as much as possible in favour of the person whose right is sought to be barred. There are indications that the courts of this country have been inclined to give a liberal application to this language in Article 113. Muhi-ud-din Ahmad Khan v. Majlis Rai I.L.R.(1884) All. 231 is one case. The decision of Mr. Justice Boddam in Pindiprolu Sooraparaju v. Pindiprolu Veerabadrudu I.L.R.(1907) Mad. 486 is another. We do not think it necessary, however, to express a final opinion on this point because in this case there is here an element which seems to us to render the doctrine inapplicable. It may be that it is right to apply the doctrine fully between the actual parties to the contract who would get the benefit and be subject to the liabilities under the contract and to whom therefore the date of payment of the money would become certain some time or other to their knowledge. But in cases where a person is entitled to bring a suit on the contract who may not and need not and very likely may not be aware of the date becoming fixed, we cannot think that the doctrine will apply. Taking this case, for instance, the second Defendant was bound to pay the amount within six months to the first Defendant, and on the date of that payment the first Defendant was bound to transfer the property to the Plaintiff. He might have paid it within two days, and the Plaintiff need not have known anything about it. He might have paid it, as in fact he did, three days after the due date and the Plaintiff might not have known anything about it. He might not have paid it till years after the due date and the first Defendant might have accepted payment and the Plaintiff might not have known anything about it. It seems to us therefore that in cases where a right to enforce specific performance rests in a third party to whom the ascertainment of the date need not necessarily be known, the doctrine certum est quod certum reddi potest, can have no application. We therefore on this narrow ground alone hold that the suit is not barred by reason of the first part of the Article 113 and that as he is within time under the second part of the article the claim is not barred. It is admitted that there is no defence on the merits. The appeal will therefore be dismissed with costs.