l%6 March J I VASMI I A I H S , M l J N U t . I l i M I'l I I I » S, JJ | C H R I S f O I X ) U l OS C HRISTODUHIO1· 'APAGFORGHIOl'. ippi llant-lh (emlaiif. PAPAniORtiHHlt, I> AUOMS I HARAI WIIIOLS A D O M S t ΙΙΛ I A L A M B O U S Respotnlent- Plaint iff {('nil Appeal Contratf l \4 ) Bond m (inioman h mi I In \i>itit>n MS and tin l.inn'auon Conlunl Λο. 45"""Μ· Law < tip of Aitwns I (/» ( (//' I *> flic under ιIK soul the debtor of α ΜΙΙΊ paid b\ htm (iiimianlor) to the a -ditoi in settlement of the afoie- said xmn aula d ileht Scttion se< lion IS ( I ) Bond ]4l) {*•)) Guaranlt t Guarantor's of t lomi atiii n\t debt ')S of the Commit \\hethci tins dami bv lie guainntor Low lap ba.s been statnti- baned b\ \utue of (be pious ons of nations S and 10 (
- d)of the Limitation Or ptoustons Law of ·\ιΐιοη\ app'.nabk I.mutation of tut tons .ί/w tin law foim Period Si tt ion "Ϊ ( ' ) ((') "/ Cap l-W h I'pon opaatton is m\i\tetl to bintii an tutiott against the dibtor is \uhu,i been - Ίherefme, datm is not statiite-bamd. within the fifteen uars to i.ilcr ali.i. with //κ, ii^h: sup- the debt, thai stub to the proMsmns of It j allows sution tase action haunt* pet tod prescribed τ> ( I ) (a), t'w/j though aflei Pa\~ to mo\ei in the ptesent th Inn stub ρα\·ικ·η! 3 ( I ) ((/). /list in the same iwn as the aiditoi's lime o, (\iipu) of seaion % >>,'tin pim: thus into the shoes of tl ι 11editor of the ^uaiaiiioi 1^ ο bond m tustomen t foim Gwtiantor unaranioi, Cap ibe In ι lam, is not statute-hart < d Homl. in t'lshnnan \eais of the debt uiuhi the italifoi. datm whetha \ ( I ) ((/) of the said l mvni id the debt h\ tin Cotttnttt 15 lieu below Hitton fifteat Guaiantee Cup ate those of seition Cap 15 in whuh See, also I m. the e.\ptr\ datm the would ynaiantoi's been ms'ituted by the said ••eaion of the shorter pcih>d\ presmhed by sections 5 and 10 ((/) of the same Law·, ι e the Limitation of At turns Law, Cap Hand in <tnfomar\ fonn IS I'ertod of limitation fijteen sett ton "Ϊ ( I ) (
- a)<>l Cap. 15 \ n p r j Guarantee inula of stub hand I he said >< nod Π, \ear.s urder of tin presiripfton-and at hi not '*"*' ^ ar CJIRISTODOULOS PAI-AOEORGHIOU the shorter ones provided in sections 5 and 10 (
- d)of the Lawis applicable also to the datm of the guarantor against the debtor in the case where the former paid off the said i s o af,ove. a debt—See n. ADONIS CHARAIAMBOUS Guurunlcec--Payment of the debt by the guarantor—Claims and ^ · against the debtor—Section 98 of the ri Us ()f (he K u a r w U o r Contract Surety- 149—Period of limitation of such claim with regard to the creditor's claim—See, Law, Cap. is that prescribed also, above. Payment of debt by the surety—claim the debtor — Period of limitation—See by the latter against above. 1 he respondent-plaintiff by an action brought on the I6ih November. 1964 sued ιhe appellant-defendant for £75.bcing llic sum paid by him (respondent) on the 22.1.55 as the surely of the appellant-defendant on a bond in customary form, dated 31.10.53. which had matured on the 1.11.53. The appellant-defendant contended that the action was statute-barred by virtue of the provisions of sections 5 and 10 (
- d)of the Limitation ol' Actions Law C a p . 15. The trial Court found that by virtue of section 98 of the Contract Law. Cap. 149. the relevant provisions of the Limitation of Actions Law, C a p . 15 which applied were not sections 5 and 10 (
- d)but were the provisions of section 3 ( I ) (
- a)and, therefore, ihe action was not statute-barred and thus gave judg ment for the respondent-plaintiff. The relevant legislative pro visions are fully set out in the judgment of the Court, post. The Supreme Court in dismissing the appeal held per M u n i r , J., Vassiliades Λ Josephides, JJ. concurring : Held. (I) wc have given careful consideration to the sub missions made by learned counsel for appellant-defendant but we cannot agree with him that it is section 5 of C a p . 15 which is the section which is applicable to this case.
(2)Clearly, one of the rights with which the surety, " u p o n payment or performance of all that he is liable f o r " , is invested under the said section 98, is the right to bring an action to recover the tlebi and we arc, therefore, of the opi nion that, by virlure of the operation of section 98 of the Contract Law, Cap. 149, the g u a r a n t o r stepping, as he did, into the shoes of the creditor, is entitled to have the benefit of the provisions of section 3 (I) (a) of the Limitation of 132 Anions Law Cap IS just Μ the same way .is the ueditoi would have had. andih.it it is thepiovisions of section "ϊ
(1)(
- a)which ate applicable to ihis LUSC andnot sections 5 ,\ni} 10 (
- d)thueof 196ί« March 3 CHRISTODOUIOS I'APAr.FORGHlOL Ο tppcai dismissed with IOSIS ADOMS ( IKPALAMBOLS Appeal. Appeal against the [Lidgminl Ί the Uislnct Court ol Nico sia (sitting at M o i p h o u ) (IMsil ides, D J ) dated the 8thDcccinbei, 1965,(Action N o 10 4/64) whcieby the defendant v\as adjudged to pa\ to the piinititt the sum ol £73 being .ι sum paid by him «is the suic> o f the defendant on a hond in customaiv form Λ/ A\pitiiiunt, t o i the .t| pellanl L Oils sν os, lai the icspmuknt Mi VASSIIIAIUS I I he lirst |idgnicnt will be dehveied b\ Ju-iicc M t i n n MUMII, J IIns i^ An ,ip|cat horn a judgment ol the Distt let ( oui l ol Nicosia sit ιin*' at M o r p h o u , whu h wa1· delivered on the8th Deccnibei, 1%5,and in which judgment was given toi the iespondent-pl untifl toi the sumol L/5and f3? 600 mils uisis I In. a p p i l l int-defendanl has now appealed against tin said judgment I he lespondent-plaintill hv ilns action claimed l i o n . ihe appellant defendant the sum ο 175, being the sum p u db\ the respondent-plainlill as the s t u d y .of the appellant defen dant t n i a bond in custom.nv l o i m , dated the 31st Oetobei 1953, ν Inch had maimed on h«_ tallowing da\, the 1st ol Novembet, 1053 At the heaimg at the action hv the District Couit counsel lai the appellant-defendant Iwd admitted that the ie-pondenl-plaintiM had paid l a l l v u e d i t a r of the a p p t l h n t defendaut, on the 2?nd Janiury, 1955,the sum o f £75, in respect of the capital and inteiist an (he said bond, tagethu with costs I h e o n h defence at the appellant-defend m l at the hearing h-Taie the Oisinel Court wa^ that the aclnm was slatule barred by virtue <l the piovisioiis o f scetiaii "> and 10 ( d ) at the Limitation a| Aelions l a w , Cap 13 and the ease was decided an this w i c alone 1 He leai ιΐιJ t n i l Judge came , l a th- eaikli-aon t i n t , I n virtue o f sect.an °<° Ι Λ 1966 March 3 CHKISTODOUIUS I'AI'AGFORC.HIOU υ ADOMS CHARAI AMROUS of the Contract Law, Cap 149, the relevant provisions of the Limitation of Actions Law, Cap 15, which applied were not sections 5 and 10 (
- d)as submitted by counsel for appellantdefendant, but were the piovisions of section 3
(1)(a) and, therefore, found that the action was not statute—barred and gave judgment for the lespondent-plaintiff Counsel for appellant-defendant has again submitted, on appeal, that the section of the Limitation of Actions Law, Cap 15, which is applicable to the facts of this Case is section 5, which pro vides that— " No action shall be brought upon, for, or in respect of, any cause of action not expressly provided for in this Law, or expressly exempted from the operation of this Law, after the expiration of six years from the date when such cause of action accrued" He based his argument on the contention that the action has not been brought upon, for or in respect of, a bond in customary form, and that, therefore, the provisions of section 3
(1)(a) of Cap 15 did not apply We have given caieful consideration to the submissions made by learned counsel for appellant-defendant but we cannot agiee with him that it is section 5 of Cap 15 which is the section which is applicable to this case We did not consider it necessary to call upon counsel for lespondent-plaintiff to address the Court, exept to ask him whether he could cite any authorities on the point which might assist the Court in this case He informed us that he was not aware of any Cyprus or otherauthority which would be of any assistance in deciding the issue now before the Court We are of the opinion that the way to approach this matter is to take as the starling point the provisions ol section 98 of the Contract Law, Cap 149, which reads as follows 11 Where a guaranteed debt has become due, or de fault of the principal debtor to perform a guaranteed duty has taken place, the surety, upon payment or per formance of all that he is liable for, is invested with all the rights which the creditor had against the pimcipal debtor " Clearly, one of the rights with which the surety, "upon pay ment or performance of all that he is liable for", is invested 134 undci the said section 98, is the tight to bring an action to rccovei the debt and wc are, theielore, ol the opinion that, by virtue ol theoperation of section 98 of the Contract I aw, Cap 149, the guarantor stepping, as he did, into the shoes ot the cieditor, is entitled to have thebenefit of the provisions of section 3
(1)(a) of the Lin nation of Actions Law ( aρ 15, just in thesame wayas thecieditor would have hadand that it is the provisions of sect on 3
(1)(a) which aic appli cable to this case andnot . u l n its 5 and 10 (d)thereo! 1966 1IX ( mmi'ijmui's PMAOIOK(.HIUJ Section 3
(1)(a)ol Cap 15 u\uls as follows ' Subject to the piavisi >ns of this Law, no action shall be brought upon, tor or in respect of(a) any bond in eusta'naiy foim οι any moitgagc alter the expiration of htleen years from the dale an winch the cause of action accrued , We, theietaic, agicc with the conclusion ι cached bv the trial Judge in his judgment th.i theaction, which is the sub leet-maltet ol this ippeal, is uai statute-barred I his appeal c.innal, theieloie succeed and must bedismissed VASSII I M H S , J Josi I'liini s I I agiee I also ag ce VASSII I A D I S , J In the result, t h e a p p e a l tails a n d is dismissed with easts \ppeal dismissal Is with m\ts ο A DOS IS ( M A R A . V\ Κ L '