Gopala Mannadiar vs Tulasi Ammal and Others

M.M. Pareed Pillay, J.—Plaintiff is the appellant. Plaintiffs suit on the strength of a promissory note was decreed by the trial Court and reversed by the lower appellate Court. The promissory note is alleged to have been executed by the 1st defendant and his deceased wife Kaliyammal Koundachi in favour of the plaintiff. Kaliyammal Koundachi''s legal heirs are the other defendants. Defendants 1 and 6 filed written statement supporting the suit claim. Defendants 2 to 5 filed written statement denying the execution of the promissory note. Besides Ext. A-2 acknowledgment plaintiff relied on the endorsement in Ext. A-1 promissory note to save limitation. The trial Court held that the evidence regarding the endorsement hay not been satisfactorily proved. Despite that finding the trial Court decreed the suit on the basis of the averments in Ext. A-2 will executed by Kaliammal Koundachi acknowledging the promissory note. The finding that the endorsement in the pronote has not been satisfactorily proved has become final as the plaintiff did not file any cross-objection when the contesting defendants filed A.S. 80 of 1980 before the Sub-Court, Palghat. The Sub Judge held that the recitals in Ext. A-2 will not save limitation and accordingly dismissed the suit.

Whether the recitals in Ext. A-2 of the liability under Ext. A-l pronote will amount to acknowledgment to save the period of limitation is the moot point to be considered The term acknowledgment in Section 18 of the Limitation Act connotes:

(i) an acknowledgment of liability;

(ii) it must relate to some existing debt or other obligation to some property or right;

(iii) the aforesaid liability must be existing on the date of acknowledgment;

(iv) it must be in writing and signed by the person against whom such property or right is claimed or by some person through whom he derives his title or liability:

(v) the acknowledgment must be made before the expiry of the period prescribed for a suit or application in respect of such property or right.

The acknowledgment may well be a recital in a document executed in favour of a stranger. It need not necessarily be addressed to the creditor or the person entitled to sue. It is necessary that the acknowledgment must relate to an existing liability. The jural relationship between the debtor and creditor must be clear and the acknowledgment, should have been made with the intention of admitting the jural relationship. The recitals in Ext. A-2 of the liability to pay the debt due under the promissory note certainly amounts to an acknowledgment.

The promissory note is dt. 5-2-1973. As there is acknowledgment evidenced by Ext. A2 before the expiry of the period of limitation to institute the suit the Sub Judge was not justified in dismissing the suit. The judgment and decree of the Sub-Judge are set aside. Second appeal is allowed with costs throughout. Judgment and decree of the trial Court stand confirmed.