Sockalingam Chettiar V. Munasinghe Et Al.,

1939     Present: Soertsz A.C.J. and de Kretser J.

SOCKALINGAM CHETTIAR v. MUNASINGHE et al.

285-D. C. Chilaw, 11,192. 

Prescription-Mortgage bond-Payment of interest in advance-Date of pay­ment-Interruption of prescription-Ordinance No. 22 of 1871, s. 6.

Plaintiff lent the defendants money on a mortgage bond dated Novem­ber 14, 1927, which required them to pay interest once in four months in advance. The first four months' interest was accordingly deducted when the bond was executed. No other interest was paid. Plaintiff brought the present action to recover the money due on the bond on March 11, 1938. The defendant pleaded prescription.

Held, that the action was prescribed under section 6 of the Prescription  Ordinance, No. 22 of 1871.

The payment of interest in advance cannot be regarded as a payment made on the date the interest became due for the purpose of interrupting prescription.

APPEAL from a judgment of the District Judge of Chilaw.

H. V. Perera, K.C. (with him H. W. Thambiah), for plaintiff, appellant.

N. E. Weerasooria K.C. (with him A. E. R. Corea) for defendants, respondents. 

Cur adv vult. 

March 31, 1939. SOERTSZ A.C.J.-

The plaintiff in this case sues on a mortgage bond dated November 14, 1927. He instituted this action on March 11, 1938, that is more than ten years after the date of the bond, but he relies on what occurred on the day on which the bond was executed to save it from the statute of limitations.

Admittedly, on that date the mortgagee retained a sum of Rs. 105 out of the amount he was lending " by way of interest for the first four months ".

The plaintiff contends that by virtue of that arrangement, a sum of money sufficient to make good the interest due for four months was deposited with the mortgagee, so that he might apply it as interest fell due, and that, in that way, March 13, 1938, must be regarded as the last date of interest on which there was a payment due on the bond.

The plaintiff bases this contention on the proposition that interest is an amount paid by the borrower to the lender as consideration for his being allowed to have the use of the latter's money and that, therefore, no obligation arises for the borrower to pay interest till he has had use of the money, and that it cannot be said that there was a " payment" of the interest due for March, 1938, in November 1937. In short his contention, as X, understand it, is that the word " pay" in its proper legal conno­tation in a case like this, means the giving of money to discharge an existing obligation, and, in this case he says that there was no obligation in November, 1937, to " pay " interest for March. In this view of the matter all that happened on the execution of the bond was that the borrower left a sum of money with the lender which became a " payment" as it came to be appropriated from day to day, or perhaps, from moment to moment as the interest fell due. In that way the last "payment" took place with the last appro

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