In the case of Roshan Lal Vs. Chaudhari Bashir Ahmad MANU/UP/0069/1924 : AIR 1925 ALLAHABAD 138, the issue was regarding the starting point of limitation. The principal amount was payable within three years and interest was payable every six months according to the Hindi Calender and if any interest remain unpaid the mortgagee would be entitled to enforce his bond without waiting for three years' time. It was observed - The true principle seems to be this. If the starting point is to be calculated, as so many months or so many years from a particular date, that point was be calculated according to the Gregorian calender. On the other hand, if the starting point is otherwise fixed by the stipulation itself, the Court cannot apply section 25 of the Limitation Act.
15. The deed exhibit-27 provides for period of five years as compulsory period for refund of amount and obtaining reconveyance. The subsequent period of five years was discretionary. The terms clearly indicate that the amount was to be repaid by the end of the Phalgun month. It also states that within a period of five years, [during the period of five years, when there would be no standing crop).
16. Article 61 of the Limitation Act, 1963 reads as follows:
ARTICLE 61
17. The period of fixed five years has been vaguely stated and the specific time is by the end of Phalgun, which is year end of Hindu Calendar. The word (within five years) clearly indicates that the period provided was not more than five years. It was for the period of five years, but by the end of Phalgun month from the date of document, as rightly suggested by learned Advocate.
18. The reliance in the present case is on the words 'till the end of month of Phalgun.' Ms. Kulkarni placed reliance on section 24 of Limitation Act, which reads as follows:
24. Computation of time mentioned in instruments - All instruments shall for the purposes of this Act be deemed to be made with reference to the Gregorian calender.
The illustration shows that where a promissory note shall execute deed showing native date payable four months after that date, it was held that the period of limitation applicable to a suit on the note runs from the expiration of four months after date computed as per the Gregorian calender year.
19. In the present case, issue is not about the calculation of the period, but determination of the starting point. The right to redemption was existing and accrued to the plaintiff by the end of deed. Right to redeem is co-extensive with right of foreclosure. As per Article 63 of right of foreclosure accrues when the money secured by the mortgage becomes due. In the present case, the money was due and payable within five years at the end of Phalgun month from the year 1964. Thus, the initial payment became due by the end of Phalgun of 1969.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Second Appeal No. 122 of 2018 and Civil Application No. 1875 of 2018
Decided On: 04.12.2018
Gulabchand Vs. Indubai Pundalik Jape and Ors.
Hon'ble Judges/Coram:
A.M. Dhavale, J.
Citation: 2019(3) MHLJ 829
