SUPPRAMANIAPILLAI v. KALIKUTTY.

 

Present: Mr. Justice Middleton.

 

SUPPRAMANIAPILLAI v. KALIKUTTY.

 

C. R ., Batticaloa, 12,626.

 

    " Bond," meaning of-Prescription-Agreement to deliver movable property-Ordinance No. 22 of 1871.
 
    Where the defendant having borrowed a certain quantity of paddy from the plaintiff agreed by a notarially attested document, stamped as an agreement, to return the said quantity of paddy, together with an additional quantity by way of profit, and in default of such delivery, to pay the value thereof,-
 
    Held, that the said agreement was a " bond " within the meaning of section 6 of the Prescription Ordinance (No. 22 of 1871), and was prescribed in ten years.

Tissera v. Tissera 1 followed.
 

THE  plaintiff  sued  the  defendant  to  recover  a  sum of  Rs. 260 and interest alleged to be due on an agreement, which was as follows: -

 

?The 2nd day of August 1900. I, Sinnetamby Kalikutty of Mangentoduvai in Manmunai pattu, Batticaloa, have justly and truly borrowed and received from Settiyar Suppramaniapillai of Arappattai, in the said pattu, a quantity of ten amunams of paddy. Its present value is rupees one hundred. To this ten amunams of paddy of this value, adding, five amunams of paddy, being profit at the rate of 50 per cent. per annum, the total quantity of principal and profit fifteen amunams of paddy, free of damage, chaff, and cheenatty, measuring with a marakal exactly holding seven peers, I shall deliver to the said Suppramaniapillai or to his legal heirs, &c., in one instalment within the month of June, 1901, next ensuing, at the threshing-floor of Natkaranvely, and defray the expenses of removing the same by cart to Vadankaraiturai, cause endorsement be made in this and redeem this deed. In default, adding the profit mentioned herein for the said term with further profit on the said principal quantity of ten amunams of paddy at the aforesaid rate of 50 per cent. per annum from the date of default till recovery, he may sue me at law for the value of the total quantity of principal and accrued profit paddy, calculating value at the rate paddy may be selling at Puliyantivu at the time of action, and recover the same from me and from all the property whatsoever belonging to me. Hereby renouncing the benefit of contesting that I did not measure and receive the said paddy I set my signature to this and grant this deed.

 

" (Signed) S. KALIKUTY.

   " (Signed) N. D. N. SINNETAMBY,

" Notary Public."

1 (1896) 2  N. L. R. 238.

 

            The   agreement  was  dated  August   2,   1900,   and  the   action  was  instituted on August 1, 1907. The defendant pleaded that the plaintiff's claim was prescribed under section 7 of Ordinance No. 22 of 1871.
 

The Commissioner of requests (G. W. Woodhouse, Esq.) held as follows (October 3,  1907): -

 

?This is an action on a notarially attested instrument whereby defendant agrees to deliver certain paddy to the plaintiff in June, 1901. The defendant pleads prescription. The question is whether the plaintiff's claim falls under section 6 or under section 7 of Ordinance No. 23 of 1871. If it falls under section 6, of course the claim is not prescribed, and plaintiff would be entitled to judgment. The authority quoted by Mr. Kadramer (1 S. C. R. 142) was an action on a notarially attested document, a dowry deed, where the defendants undertook to deliver certain movables by a certain date. The defendants (in that case) having failed to deliver some of the goods on the appointed date, the donees instituted an action.

 

" It was held in appeal that as ' section 6 applies to what are technically called bonds, either mortgage bond or bonds conditioned for the payment of money or the performance of an agreement, the deed in question does not fall under either of these heads. It is a simple promise to deliver certain movable property within a given time. That being so,

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