Authored By : Arthur Wilson, O Kinealy

Arthur Wilson and O Kinealy, JJ.

1. The facts found by the learned Judge of the Small CauseCourt are not, we think, sufficient to enable us to say from what date theperiod of limitation should be reckoned. What is found is that, on the 15thNovember 1882, the plaintiff paid the price of a consignment of goods which hehad ordered from the defendants, and that on the 22nd November the case,purporting to contain the goods ordered, was opened and certain of the goodsfound to be missing. And we are asked whether limitation in respect of a suitto recover back the sum overpaid is to be reckoned from the 15th or the 22ndNovember. We can only say, assuming, as is probably correct, that article 62applies to such a case, not necessarily from either. The money paid by theplaintiff was not, at the time he parted with it, received by the defendantsfor his use but for their own. It was when the consideration failed that, byoperation of law, the money became money received to his use, and that, wethink, is the date from which in such a case limitation runs. The considerationfailed when the short delivery took place; and as the date of delivery is notfound the material date is wanting, and we cannot answer the first question.

2. The second question is one of considerable importance.The facts bearing upon it are thus found:

Mr. H.J. Joakim was general agent for the defendants inCalcutta, that is to say, he would receive orders in the form of indents fromconstituents in Calcutta, forward them to the defendants, who would ship thegoods, which would eventually come to Mr. Joakims godowns. The defendants J.Lyon and A. P. Lyon carry on business under the style of Jeremiah Lyon &Co., at 4, Lombard Court, Grace church Street, London. Both defendants had attimes visited Calcutta and were known to Joakim, but neither had been inCalcutta since the 2nd May 1882, the date the order was given. They did notcarry on business here personally, their visits being only temporary with aview to look after their own interests. In consequence of the defendants notbeing in Calcutta, leave was, before suit was instituted, obtained by theplaintiff to sue in this Court. "The cause of action arose either whollyor in part in Calcutta. The question we are asked is " Is the suit barredby limitation under Section 13 of the Indian Limitation Article 1877

3. Section 13 says : "In computing the period oflimitation prescribed for any suit, the time during which the defendant hasbeen absent from British India shall be excluded." This section occurs inPart III of the Article, which deals with the computation of the period oflimitation, and the language of the section corresponds to its position. It hasto do not with the persons for or against whom limitation shall run but withthe calculation of the time. In the present case the question is whether,between the accruing of the cause of action and the filing of the suit, thedefendants were absent from British India. They were certainly not present inBritish India, and therefore it would seem they must have been absent, forapparently there can be nothing intermediate between presence and absence. Butit has been contended that the word "absence" should be understood asapplicable only to such persons as have been present, or would ordinarily bepresent, or may be expected to return. Thus the learned Judge of the SmallCause Court thinks that "absence implies some previous presence, andhaving regard to the general purport of the Act some presence after the timethat limitation began to run." In argument before us various otherrestrictions upon the meaning of the word "absence" were suggested;that it should be held applicable only to persons who ordinarily reside inIndia; or, again, to persons who are temporarily absent and intend to return.

4. But the section in question is not intended to define thepersons for or against whom limitation shall run but to direct the mode ofcomputing time. And if we were to attempt to restrict the meaning of"absent" in such ways as are contended for, there is probably nolimit to the number of suggestions that might be made and, as far as we cansee, no reason for accepting one suggestion in preference to another. It may beworth noticing that the case, to which alone the learned Judge of the SmallCause Court would limit the operation of the section, is the precise case towhich it was once held that it did not apply-Narronji Bhimji v. MagniramChandaji 6 B. 108. though that case may be considered as overruled; Beake v.Davis 4 A. 530; Hanmantram Sahdhurain Pety v. Bowles 8 B. 561.

5. The decisions upon corresponding sections in English Actsstrongly support the broader construction. The Statute 21 Jas. I.C. 16 Section7, dealing with the case of plaintiffs, and 4 and 5 Anne, c. 3, Section 19(revised Statutes), provided that, if the one or the other was "beyond theseas" when the cause of action accrued, an action might be brought withinthe limited period after the "return from beyond seas" of the one orthe other as the case might be. The word " return" used in those Actsafforded at least as strong ground for some restriction upon the operation ofthe sections as anything in the Act now before us. But it was never held thatthat word imported a previous presence and departure. For this it is enough torefer to the decision of the Privy Council in Ruckmaboye v. LulloboyeMottichund 5 M.I.A. 234.

6. That was an appeal from the Supreme Court of Bombay andwas decided on demurrer, so that the facts as alleged in pleading must be takento be correct. The plaint described the plaintiff as "of Malwa," andalleged a conversion of her goods by the defendant in Bombay. The defendantpleaded limitation, relying on the Statute of James. To this there was areplication that, at the time when the cause of action accrued and till withinsix years before suit, she was residing in Malwa, outside the territoriessubject to the East India Company, and outside the jurisdiction of the Court.The Privy Council having first held that the Statute of James did apply to asuit in the Supreme Court, and that Malwa was within the meaning of thetechnical phrase "beyond seas," went on to decide that thereplication was good. They thus applied the saving clause to a person residentin a foreign State, who was in foreign territory when and for years after the causeof action accrued. Another case was cited during the argument to which we thinkit right to refer that of Harrington v. Gonesh Roy 10 C. 440. In that caselimitation was pleaded, and in reply the plaintiff relied on Section 13 of theLimitation Article, on the ground that the defendant had been in England eversince the cause of action accrued. Nottingham and Norris, JJ., who heard thecase, held that Section 13 did not apply, on the ground, if we understand thedecision aright, that "it seems, however, that Mr. Harrington (thedefendant) is represented in this country by Mr. Crowdy, who, in the firstinstance, was made a defendant in the case as manager and mukhtear of theBhagwan-pore Factory." That case does not bear directly upon the present,for the learned Judge of the Small Cause Court finds that "there isnothing to show whether Joakims position was such that a summons could havebeen served upon him." But the case does bear upon the method ofconstruction to be applied to the section. And we think that, if the questionthere dealt with should arise again, that decision may have to be reconsidered.The case was not argued for the respondent. Attention does not seem to havebeen drawn to the fact that the words in the corresponding section of Act IX of1871 (as in earlier Acts)-"unless service of a summons to appear andanswer in the suit can, during such absence, be made under the Code of CivilProcedure" have been omitted in the present section; and the judgment ofthe Privy Council, in the case already cited, does not appear to have beenreferred to. In that case, to the replication of absence from British India,there was a rejoinder to the effect that, throughout the period in question,the plaintiff had carried on trade in Bombay, having a shop or house ofbusiness there under a munim or gumastha. Their Lordships held that rejoinderto be no answer, and it is not easy to see why the reasons given for soholding, at page 260 of the report, should not apply to the case of a defendantunder the present Article.

7. It was pointed out in argument that, according to theconstruction which we place upon the Article, a man who was in England when acause of action against him accrued, and has remained there ever since, may beliable after an indefinite time to be sued in a Calcutta Court. And it wascontended that this was something absurd, something that the Legislature couldnot have intended, and that we ought to adopt some construction which wouldavoid it. The answer given by the Privy Council to a somewhat similar objectionin the case already cited is sufficient. The words of the section are express,and the case is within them. Moreover there is no more hardship than in theconverse case of a man resident in Calcutta, who there incurs a liability toanother person resident in Calcutta, who remains in Calcutta long enough forany suit against him to be barred by the law prevailing in Calcutta as well asordinarily in England, who then goes to England and finds himself liable to besued there any time within six years. And this is exactly what happened underthe Statute of Anne in Williams v. Jones 13 East. 439.

8. We answer the second question in the negative. Theremaining questions it is unnecessary to answer.

9. Attorneys for the defendants: Messrs. Dignam and Co.

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Atul Kristo Bose vs.Lyon and Co. (17.03.1887 - CALHC)