M. Appachi vs P. Kanniappan

Suryamurthy, J.—This is an appeal by the defendant in O.S. No. 278 of 1967 on the file of the Court of the Subordinate Judge of the

Nilgiris at Ootacamund. The suit was instituted by the respondent for recovery of Rs. 16,666.66 as damages for wrongful attachment of his lorry and for further payment of a sum of Rs. 200/- per mensem to compensate for the loss of his income from the date of suit. The suit was decreed in favour of the plaintiff for Rs. 4,000 as compensation for the loss in the value of the lorry and Rs. 3,333-33 as compensation for the loss in the income sustained by the plaintiff from 26th February, 1965 to 6th December, 1967 at the rate of Rs. 100 per mensem and proportionate costs.

Hence the defendant has preferred this appeal.

The plaintiff has filed a memorandum of cross-objections claiming enhancement of damages at the rate of Rs. 200 per mensem from 26th

February, 1965 to 6th December, 1967. The appellant filed O.S. No. 34 of 1965, O.S. No. 41 of 1965, O.S. No. 48 of 1965, O.S. No. 52 of

1965 and O.S. No. 54 of 1965 against the respondent for recovery of Rs. 4,000, Rs. 4,600, Rs. 4,320, Rs. 6,400 and Rs. 3,500 respectively,

and I.A. No. 201 of 1965 in O.S. No. 34 of 1965 for attachment before judgment and obtained an order of attachment before judgment and attached the lorry MDN 3764 belonging to the respondent. In pursuance of the attachment, appellant took possession of the lorry and was in possession of the lorry till the date of the suit. The suits were dismissed on 7th December, 1966 and the attachment was raised. Thereafter the respondent filed this suit for damages, contending that the appellant has removed all the valuable parts from the lorry and substituted them by useless parts, that the lorry was worth Rs. 12,000 at the time of the attachment and that the value of the lorry which was worth Rs. 12,000 on the date of the attachment had diminished. He filed I.A. No. 240 of 1967 for the appointment of a Commissioner to value the lorry as on the date of the subsequent suit instituted by him. The Commissioner filed a report valuing the lorry at Rs. 3,000. The plaintiff, therefore, claimed the sum of Rs.

10,000 by way of damages for the loss in the value of the lorry which was wrongfully attached. The respondent further alleged that he was getting a net income of Rs. 200 per mensem by plying his lorry and that the defendant (appellant) is liable to make good the said loss of income to him.

The defendant denied the misuse of the lorry or having removed valuable parts and substituted them by useless and worthless parts. He

contended that the lorry was used at the time of the attachment to transport granite stones from the quarry, that it was running the road at the time of the attachment, but could not be called roadworthy and that it was not worth Rs. 12,000 at the time of the attachment. He contended that the lorry was in his custody within the premises of the compound of M/s. Appaji Private Ltd. and that the plaintiff was never prevented from taking delivery of the lorry after attachment by offering security. He further contended that even if the plaintiff had made use of the lorry, he could not have earned Rs. 200 per mensem as the lorry was an old one, and was used as a private carrier to transport granite stones. He disowned his liability to pay the damages claimed. It was also contended that the suit was barred by limitation.

The learned Subordinate Judge held in favour of the plaintiff as noted above.

The liability of the defendant-appellant to pay damages has not been questioned before me. The only contention raised by the appellant in this

case is that the suit is barred by limitation. The plaintiff in his cross-objections claimed an enhanced amount by way of compensation, viz., Rs. 200

per mensem, to compensate him for the loss sustained by him due to his being deprived of the use of the lorry.

The first point to be determined is, whether the suit is barred by limitation? The contention of the learned counsel for the appellant is that as this

is a suit for compensation for wrongful seizure of movable property under legal process, the period of limitation is one year from the date of the seizure as prescribed under Art. 80 of the Limitation Act, 1963, corresponding to Art.29 of the old, Limitation Act. In support of this contention reliance is placed on a decision of this Court in Muthuswami Goundan v. Dhanushkodi Nadar (1950) 1 M.L.J. 799 wherein it has been observed that where the goods wrongfully seized from the plaintiff had been sold and thereby passed into the hands of third parties, the suit against the defendant for the loss caused to the plaintiff by such wrongful seizure and sale being the price of the goods so sold, would be governed by Art. 29

of the old Limitation Act, and it should be brought within one year from the date of seizure. But it is seen from the very same decision that where the property wrongfully seized from the plaintiff is alleged to be in the possession of the defendant, and the suit is for recovery of the suit property coupled with a prayer for the price of these articles, the Article of the Limitation Act held to be applicable was Article 49 of the Limitation Act,

1908, corresponding to Article 91 (b) of the Limitation Act, 1963.

In N.P. Krishna Ayyar v. Sudalaimuthu Pillai 1045 1 M.L.J. 265=58 L.W. 108, a Bench of this Court considered the question whether Art.49

of the old Limitation Act or Art.29 of the old Limitation Act was applicable to a case where the plaintiff sued for compensation for wrongfully taking and wrongfully causing loss to the plaintiff whose bricks in the kilns were attached, and which on redelivery were found to have been less than what were attached and removed by the defendants. In that case, the first defendant instituted a small cause suit against one Paramuthu

Kudumban and applied for attachment before judgment of two brick kilns on the allegation that they belonged to Paramuthu Kudumban. The application was granted and the attachment was effected. As it was not possible to remove the kilns, the amin left them in the custody of the first and second defendants on their entering into a security bond. The plaintiff filed a petition under O.21, R.58, of the C.P.C. objecting to the attachment on the ground that the kilns belonged to him, and filed an interlocutory application for delivery of the kilns to him. He deposited into

Court the amount of the first defendant's claim. The attachment was cancelled, and the first and second defendants were directed to deliver the kilns to plaintiff. When the delivery was effected, the plaintiff discovered that all the bricks had been removed from one kiln and a quarter of the bricks from the other kiln. Subsequently, the first defendant's suit was dismissed, and the plaintiff's petition under O.21, R.58, C.P.C. was

allowed. The plaintiff filed an execution petition to enforce the security bond to the extent of the value which he bad placed on the bricks which had been removed from the kilns. That application was dismissed on the ground that the plaintiff's remedy was by suit and not in execution

proceedings. Subsequently, the suit was instituted for recovery of the aforesaid value. On these facts, Sir Alfred Henry Lionel Leach, C.J. speaking for the Bench held that Art.29 of the old Limitation Act was not applicable and observed that:

It provides a period of limitation of one year for a suit for compensation for wrongful seizure of movable property under legal process, the year commencing from the date of the seizure. This is not a suit for compensation for wrongful seizure of movable property under legal process. As we have already said, it is a suit for compensation for wrongful removal of the bricks.

The only Articles which can possibly apply are Arts.48 and 49. Art. 48 relates to a suit for specific movable property lost or acquired by theft, or dishonest misappropriation on conversion, or for compensation for wrongfully taking or detaining the property. The period is three years from the date when the person having the right to the possession of the property first learns in whose possession it is. The suit cannot be said to fall under this Article, because it is not suggested by the plaintiff that the property is now in the possession of defendants and the claim is not made on that

basis. We are of opinion, however, that the suit fails within Art. 49. This Article relates to a suit for specific movable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the property. Here the period is three years from the date of the wrongful taking. The plaintiff says that these bricks were removed by the defendants; and if the defendants were responsible for their removal or allowed them to be removed the suit wilt lie against them and it will be in time because the wrongful removal must have taken place on the 26th January, 1936, and the suit was filed within three years of that date.

This decision has been followed inV Venugopal and Brother and Others Vs. P. Gopala Chettiar, , by Yahya Ali, J. That was a case in which the

first defendant filed the earlier suit for recovery of rent and attached before judgment a sewing machine belonging to the plaintiff. The sewing

machine, after attachment was handed over to two sureties, who were the second and third defendants. During the period when the machine was in the custody of the defendants, the vital parts of the machine were removed. The attachment was raised on an application by the plaintiff, and he applied for redelivery. When an amin was sent for the purpose of redelivery, it was found that the machine had been rendered absolutely worthless by the removal of the important parts, and it had also become rusty and unworkable. The plaintiff refused to take delivery of the same and filed the suit for return of the machine in the condition in which it was at the time of the attachment or for damages. It was contended before this Court that

Art. 29 of the old Limitation Act was applicable and that the suit was barred, because the suit was filed after the expiry of one year from the date of seizure. In support of that contention, reliance was placed on Pannaji Devi Chand v. Firm Senaji Kapur Chand 59 M.L.J. 859=31 L.W. 675,

the headnote of which has been extracted and stated as follows:--

Art.29 of the Limitation Act applies to all cases of attachment before judgment where specific movable property is actually seized and the seizure is wrongful either because the Court had no jurisdiction or because the attachment was obtained on insufficient grounds; the article applies whether the property attached belongs to a defendant in the suit or to a third party. The starting point of limitation is the date of actual seizure and the time taken in getting the seizure declared illegal either on appeal or by other means cannot be deducted.

Referring to the aforesaid decision Yahya Ali, J., has observed that,

The principle governs cases where there was an attachment which was found to have been wrongful, because the Court had no jurisdiction or because the attachment was obtained on insufficient grounds--cases which, in terms fall within the description of the suits mentioned in Art. 29. For a suit under that Article, there are no additional factors such as misappropriation/or theft or conversion of the attached property. If such complications do not exist, as they did not exist in Pannaji Devi Chand v. Firm of Senaji Kapur Chand 59 M.L.J. 859=31 L.W. 675 then Art. 29

will apply but if they do exist we will have to look for some other article in which those additional factors are present and are provided for and that article is Art.48. Art.48 refers to suits for specific moveable property lost or acquired by theft, or dishonest misappropriation, or conversion or for compensation for wrongfully taking or detaining the same. Where therefore, the suit is for compensation for wrongfully taking or detaining the property lost or acquired by theft or by dishonest misappropriation or conversion, Art.48 would be applicable and not Art.29. Even if Art.48 does not in terms apply, Art.49 which is a residuary article, would be applicable, since that article deals with suits for specific moveable property not otherwise provided for, or for compensation for wrongfully taking or injuring or for wrongfully detaining the same. The period of limitation under both Art.48 and Art.49is three years and the time is to run from the time when the person having a right to the property first learnt in whose possession it was or when the detainer's possession became unlawful.

The ratio of that decision is applicable to the instant case, because the facts are identical. This is not a suit for damages for wrongful attachment.

The suit is for compensation for the damage caused to the lorry of the plaintiff which was wrongfully attached and subsequently detained wrongfully and injured by the acts of misfeasance committed by the defendant. Hence Art.91 of the Limitation Act, 1963 is applicable, and the suit instituted within three years from the date of wrongful detention is not barred by limitation.

The next point for determination is what is the amount to which the plaintiff is entitled by way of compensation? This point arises both in the

appeal and in the cross-objections. The lorry of the plaintiff was in a running condition and was transporting granite stones and sand at the time when it was attached. The attached lorry was admittedly in the possession of the defendant since the date of the attachment. The Commissioner found that on the date of the inspection by him, the lorry was worth only Rs. 3,000. The value of the lorry according to the lower Court was Rs.

7,000 at the time of the attachment. Therefore, the Court below found that the plaintiff is entitled to damages of only Rs. 4,000. There is no acceptable evidence to come to a contrary conclusion.

The plaintiff claimed a sum of Rs. 200 per mensem as the net income he would be able to have realised by plying the lorry. The defendant

denied this claim. The plaintiff was using the lorry for the contract work done by him. He was transporting granite stones and sand in the lorry.

Exts.A8 and A9 are weekly statements submitted by the plaintiff to the defendant. They show that he was getting a net income of Rs. 200 per

mensem. The learned trial Judge held that the same income cannot be expected when the plaintiff was not doing any contract work, and therefore,

it will be just and reasonable to fix the monthly income at Rs. 100 I see no reason to take a different view. Hence, the judgment and decree of the trial Court are confirmed, and the appeal and the memorandum of cross-objections are dismissed with no order as to costs.