Defendants absence from India cannot be excluded for computing period of limitation.

1. The defendant who suffered a decree before the Court below has filed the above second appeal.

2. The appellant/defendant borrowed 2000 Singapore dollars from one R.S. Sundaram at Singapore on 9.11.1975 promising to repay the same on demand to him or to his order with interest at 18% per annum and executed a promissory note therefor under Ex.A5. The said Sundaram filed a case before the District and Magistrate Court, Singapore against the defendant but it was struck off. According to the plaintiff/respondent, the defendant continues to reside in Singapore and on 3.7.1979, under Ex.A1 the said promissory note was assigned in favour of the plaintiff, and the plaintiff issued a notice on 11.7.1979 intimating the said assignment in his favour and demanding the payment of the entire dues to him, from the defendant. Since the amount was not paid, the plaintiff filed the suit in O.S.No. 8 of 1980 on the file of the Sub-Court, Devakottai, which was re-transferred to the District Munsif Court, Devakottai and numbered as O.S.No. 37 of 1984, for recovery of the sum of Rs. 13, 885.75 with subsequent interest on the principal sum of Rs. 6, 700. It is stated in the plaint that since the defendant has been and is absent from India, the whole of the period has to be excluded in computing limitation as provided for in Section 15(5) of the Indian Limitation Act read with Section 11 thereof with the result that the suit instituted is well within time. It is also stated that Ariyakudi is the permanent place of residence of the defendant, which is situated within the limits of the jurisdiction of District Munsif Court, Devakottai in which the suit was filed.

3. The appellant/defendant contested the suit by filing written statement. The defendant denied the said borrowing of 2000 dollars from one R.S. Sundaram at Singapore and so the suit document was not supported by consideration. It is also stated by the appellant that the benefits given under the Tamil Nadu Act 4 of 1938 or Act 40 of 1979, and at the time of the assignment of the said promissory note dated 3.7.1979, it was barred by limitation and so the same could not be assigned and could not be enforced. According to the defendant. Section 15(5) of the Indian Limitation Act is not applicable to the facts of this case.

4. The trial Court, after considering the oral and documentary evidence, decreed the suit. On Appeal by the defendant in A.S.No. 19 of 1987 on the file of the Sub-Court, Devakottai, the lower appellate Court confirmed the judgment and decree of the lower Court and dismissed the appeal. Hence, the defendant has filed the above second appeal.

5. Both the Courts below have found that the appellant/defendant has borrowed the said 2000 Singapore dollars from the said Sundaram, that the assignment was valid, that the suit is maintainable in law, and that in view of Section 15(5) of the Indian Limitation Act, the suit is filed well within the period of limitation.

6. The learned counsel appearing for the appellant/defendant has submitted that in view of the proceedings taken by the said Sundaram in Singapore to enforce the said promissory note the respondent/plaintiff is estopped from filing the present suit. In the plaint, the plaintiff has come forward with the specific plea that the said Sundaram filed DC Summons 1980 of 1975 against the defendant in the District and Magistrate Court, Singapore, but it is struck off. Quoting certain provisions, it is stated that there is no bar to file fresh suit. When the plaintiff has come forward with such specific plea, the defendant has not established that the said suit was dismissed on merits, and so the said Sundaram cannot assign the said promissory note in favour of the plaintiff so as to enable the plaintiff to file the present suit. The Courts below have factually found on the basis of Exs.A15 and A 15 that the plaintiff is not barred from prosecuting the suit. In view of the said concurrent findings and also in the absence