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SAIBO et al. v. ABUTHAHIR et al
NLR37V319
1935 Present
: Koch J. and Soertsz
A.J.
SAIBO et al. v. ABUTHAHIR et al.
83-D. C. Badulla, 5,569.
Res judicata-Bond-Separate covenants as regards principal and interest -Action
for interest-Subsequent action for principal-Civil Procedure Code, s. 34.
Where it was stipulated by bond that the principal sum shall be payable on
demand, and that the interest shall be payable for a period of four years once
in six months and thereafter monthly,-
Held, that the covenants regarding the payment of principal and interest were
separate and independent, and that an action to recover interest was no bar to a
subsequent action to recover the principal.
APPEAL from a judgment of the District Judge of Badulla.
Keuneman (with him Theagarajah), for defendants, appellants.
H. V. Perera, for plaintiff-respondent and petitioner in Revision.
Cur. adv. vult.
October 3, 1935. SOERTSZ A.J.-
the plaintiffs-respondents sued the defendants-appellants to recover a sum of
Rs. 1,500 the principal amount due on the document P 1 and a sum of Rs. 195 as
interest due for a certain period. They also claimed a sum of Rs. 69.10 the cost
of two deeds of transfer executed by them in favour of the defendants.
The plaintiffs had on three prior occasions sued the defendants to recover
certain amounts which they alleged were owing at the dates of the institution of
those cases for interest payable on the bond, and had obtained judgments for the
amounts claimed.
In the present case, when they filed their plaint to recover the principal
amount and balance interest due, they averred that although by the terms of the
bond P 1 the principal amount was payable on demand, there was a subsequent
agreement (document P 2) by which they undertook not to demand from the
defendants the said principal sum until they had executed certain transfers in
favour of the defendants. They had now executed those transfers and therefore
claimed the principal sum. This averment was apparently made by way of
explanation and justification for their not suing for the principal in the
earlier cases. The defendants, however, in their answer pleaded inter alia "
that as a matter of law the plaintiffs are estopped from bringing this action by
virtue of decrees in cases No. 4,645 and No. 5,225 of this Court which operate
as res judicata". This was the question really debated on appeal. Before going
on to examine it, it is necessary to get a clear view of the two documents P 1
and P 2. P 1 is dated December 16, 1925. By it the defendants and their deceased
father of whose estate the first defendant is the administrator declared
themselves " jointly and severally held and firmly bound unto " the two
plaintiffs " jointly and severally in the sum of Rs. 1,500 being value of shop
goods and furniture bought and received by the defendants from the plaintiffs
which said sum we jointly and severally do hereby engage and bind ourselves and
our and each of our heirs, &c, to pay the said obligees jointly and severally,
their heirs, &c., on demand together with interest thereon at the rate of 16f
per cent, per annum computed from the date hereof for a period of four years,
and thereafter at the rate of 18 per cent, per annum, the said interest to be
payable half yearly for the first four years (the first of such payments to be
made on or before the 5th day of May, 1926), and thereafter monthly".
P 2 was executed six days later, the 22nd of December, 1925. By it the first
plaintiff alone " stated" that he would not " demand payment to me of the sum of
rupees one thousand five hundred (Rs. 1,500) due to me on bond No. 903 dated
December 16, 1925 . . . . from the obligees (should be obligors) mentioned in the
said bond until I transfer and assign", &c.
The first question that arises for consideration is whether the terms of the
bond P 1 show the existence of two separate and independent
covenants as regards payment of inter
