Musunuri Anjaneyulu and Another vs Koona Lakshmi

The judgment and decree of the learned Sub-Judge in S.C.No.4 of 1996 dated 21-2-1997 are challenged in this revision petition.

The pelilioners are the defendants in the suit and the respondent is the plaintiff. The suit was filed on the basis of a pronote for recovery of Rs.5,000/- with interest and costs. The defendants pleaded to have discharged the pronote on payment of Rs.7,293/- on 18-4-1994 but in spite of the payment, the pronote was not returned by the plaintiff. They also contended that the purported signatures to the endorsement dated 5-11-1994 upon which the suit was based for the purpose of limitation had been forged. Afler trial, the learned sub-Judge rejected the defence as above and decreed the suit.

In addition to the grounds raised in the petition, Mr. Vallum, the learned advocate for the petitioners contended that the finding of the learned Sub-Judge is opposed to the evidence on record and patently an error. In regard to the discharge of the pronote, he has pointed out that the learned Sub-Judge except referring that DW2 stated in his presence that he paid Rs.7,923/-, no reasons are given to state whether it is accepted or rejected and therefore, there is a legal error amounting to legal lacuna which cannot be supported. This Court is unable lo agree with the contention, the reason being that the evidence of the discharge of pronote based merely on the sworn testimony of DWs. 1 and 2 is not supported by any documentary evidence and does not find any supporting material or probability. They even took a sland that in spite of the demand made to the plaintiff to return the pronote after discharge of the amount, it was not returned. The only supporting material is the reply notice Ex. A4 to the notice Ex.A3. When such a stand is taken, such a conduct should also enforce itself to the probability. The amount discharged was quite a heavy one. For a lesser amount borrowed under the pronote, a document has come into existence but for a larger amount discharged, no document has come into existence. Possibly, the intrinsic reasoning of the learned Judge on such material merely based upon the testimony did not judicially convince itself that the plea of discharge was established. At any rate, this Court has supplemented that reasoning with the material.

The next contention of Mr. Valluru regarding forgery pleaded by the defendants about the endorsement on Ex. A2, the learned Sub-Judge himself stated that the scribe was not examined and that itself is a lacuna No law says that the scribe of an endorsement should be examined as it is not one of the documents required by law to be attested or scribed. Endorsement can be written by the parties themselves. There is oath against oath in this regard. The learned Sub-Judge has accepted the proof of Ex.A2. This Court should not find its own reasons to reject it. The law is also clear that a judgment in a small cause suit need not contain more points for determination and the decision thereon in view of Order 20 Rule 4(1) CPC which this Court cannot alter, and if some reasons are given unless they are absurd, the High Court in revision u/s 115 C.P.C. cannot supplement its reasons contrary to the finding. Therefore, this contention also cannot be accepted. In so far as the proof of suit debt is concerned, and the liability of the respondents to pay it, the findings of the learned Sub-Judge cannot be disturbed.

A serious ground raised by the learned advocate for the petitioners is that the suit is barred by limitation on failure to prove Ex,A2, the endorsement on the suit pronote. As a matter of fact, such a finding is confirmed as above as regards the proof of Ex.A2. Ex.A1, the suit pronote is dated 10-4-1994. Ex.A2, the endorsement is dated 5-11-1994. The suit was filed on 2-2-1996. The period of limitation for a suit based on a pronote is 3 years from the date of promissory note as per Article 35 of the Limitation Act. Normally, the period would have expired on 10-11-1997. But, in view of the endorsement Ex, A2, the period of limitation is sought to be extended by three more years from 5-11-1994 and if that is correct, the suit will be within the period of limitation.

The learned advocate for the respondent relied upon Sections 18 and 20 of the Limitation Act (for short ''the Act'') to get the benefit of extension of the period of limitation both for the payment on account of the debt and also by virtue of the acknowledgment of the debt. It is true that what Mrs. Malleswari says relying upon such provisions is correct, if she is able to demonstrate that the facts of this case confoim to the implications of the provisions. But Mr. Vallum, the learned advocate for the petitioners points out that Ex. A2 is signed by Defendant No.2 only and not by Defendant No.l and the case being one of joint debtors, the payment or acknowledgment of one of them will not tantamount to acknowledgment of the debt or payment towards the debt either by one or both of them or atleast it may not bind Defendant No.2. The learned advocate Mrs. Malleswari has contended to the contrary that the acknowledgment or payment of debt by one of (hem among the joint debtors will not bind both to get the extension of period of limitation under the said provisions. Therefore, the only question remains to be considered is whether the part payment of the debt or the acknowledgment of the debt by one of the co-debtors extend the period of limitation either u/s 18 or Section 20 of the Limitation Act. Both the learned advocates have strived deep into the question by even presenting some of the precedents in support of their respective contentions.

Section 19 deals with the effect of payment on account of debt or of interest on legacy and Section 20 deals with the effect of acknowledgment or payment by another person. Although with luxury, the provisions may be repealed.

"Section 19. Effect of payment on account of debt or of interest on legacy :-Where payment on account of a debt or of interest on a legacy is made, the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made. Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment."

Section 20. Effect of acknowledgment or payment by another person :--(1) The expression "agent duly authorised in this behalf'' in Sections 18 and 19 shall, in the case of a person under disability, include his lawful guardian committee or manager or an agent duly authorised by such guardian, committee or manager to sign the acknowledgment or make the payment.

(2) Nothing in the said sections renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed by, or of a payment made by, or by the agent of, any other or others of them.

(3) For the purposes of the said sections :

(a) an acknowledgment signed or a payment made in respect of any liability by, or by the duly authorised agent of, any limited owner of property who is governed by Hindu law, shall be a valid acknowledgment or payment, as the case may be against a reversioner succeeding to such liability and

(b) where a liability has been incurred by, or on behalf of a Hindu undivided family as such, an acknowledgment or payment made by, or by the duly authorised agent of, the manager of the family for the time being, shall be deemed to have been made on behalf of the whole family.''''

In case of acknowledgment of a debt before the expiry of the period of limitation prescribed in the schedule of the Act, a fresh period of limitation shall be computed from the time when the acknowledgment was made. Similarly, the payment towards the debt extends the period of limitation by virtue of Section 20 of the Act. Section 20 has got the legal effect of payment or acknowledgment towards the debt by another person than the debtor or the person who is liable in regard to certain mailers. Insofar as the acknowledgment of the debt by one or both to extend the period of limitation are concerned, there cannot be any doubt in the legal result under the provisions particularly when Sections 18, 19 and 20 are read together. But the question has remained to be answered only in case where one of the debtors or one of the co-debtors or one of the persons mentioned in Section 20(2) to pay. sign or acknowledge the debt and that has happened in this case. When defendant No. 1 has alone signed Ex.A2 whereby the endorsement is proved, the question would be whether the period of limitation would extend in this case.

Sections 18 and 19 are very specific about the payment by a person or acknowledgment by a person, to mean that the period of limitation extends in so far a person, pays or acknowledges the debt. The question is whether the expression ''person'' used in the two provisions should be read as ''persons''. In cognate and contextual expression, the person should include persons to mean that to extend the period of limitation, the person or all the persons should pay or acknowledge. But the expression used therein is the person and that is being considered to know the legal effect.

The precedents in favour of answering positive to the above question are of the High Court of Madras in Dev Shanker Dolia Vs. M.H. Fernandez and Another, (on facts) and of our High Court in M.A.Qadeer v. Azamatullah Khan 1974 (1) AW.R. 98 and the precedents which are in favour of answering the question is negative are of our High Court in Tirupagari Tayaramma and Others Vs. Sri Ramanjaneya Merchantile Co., Eluru, . Distinguishing both the cases of High Court of Madras and A.P. and the decision of the Punjab High Court in Federal Bank of India (Punjab) Ltd. Vs. Som Dev Grover and Others, wherein the views of other High Courts are also expressed the other two pronouncements depended upon by the learned advocates are A. Venku Dikshitulu Vs. Gundu Subbayya Setti and Another, and the judgment of the Calcutta High Court in Achola Sundari v. Doman Sundari, AIR 1926 Calcutta 150. They neither apply to the facts of this case nor the principle which is being examined.

The judgment in Venku Dikshilulu''s case (supra) deals with the question whether an acknowledgment by a receiver will extend the period of limitation and the Calcutta High Court in Achola Sundari''s case (supra) dealt with altogether a different question than the one involved in this case.

Since our High Court has already taken a clear view in Tayaramrms'' case (supra) distinguishing the earlier decisions in M,A. Qadeer''s case (supra) and Dev Shonker ''s case (supra), unless for justifiable reasons and with a precedent of a Larger Bench, such a view cannot be departed as a rule of judicial discipline and consistency in the law making process. In M. A. Qadeer''s case (supra) the question involved was whether an acknowledgment of a part payment by one of several co-heirs was held sufficient to save limitation in regard to all the heirs of a deceased promisor. The acknowledgment by one of the co-heirs was representing the other heirs and therefore that question was covered by Sections 18 or 19 of the Act as the case may be and therefore, it was distinguished in Tayarammas'' case (supra) in clear terms. The question was considered in the latter case taking recourse to Section 20(2) of the Act as rightly pointed out by Mr. Vallum, the learned advocate where the question would be whether the acknowledgment by one of the joint contractors would extend the period of limitation and in view of the specific provision it did not extend the period of limitation.

A careful reading of Section 20(2) of the Act makes it certain that the provision is not confined to only joint contractors but it also concerns other similar persons like partners, executors or mortgagers chargeable by reason of the acknowledgment or the payment which, includes the executors of a document like promissory note also. The expression ''executor'' used in the provision need not be confined to the executor or a propounder of a document like will. It has got a larger import and the purport. Therefore, the law which is settled in Tayaramma ''s case (supra) following Section 20(2) of the Act is to the effect that acknowledgment of the debt by payment by one of the joint contractors not extending the period of limitation would equally apply to such a situation by one of the joint debtors in the case of a pronote also. Such a view has a clear support from the decision of the Punjab High Court in Federal Bank of India''s case (supra) which was rendered quite prior to the decision in Tayaramma''s case (supra) which in the opinion of this Court is very much convincing and within the clear scope of Sections 18 - 20 of the Act read together. On assessment of the conspectus of the question, it was clearly held that the acknowledgment or payment by a debtor does not extend the period of limitation against the surety, the logic being extended on the general ground that it will not apply to the co-debtors also. There is a direct decision of the High Court of Patna also in this regard in Madholal Vs. Shamlal and Others, dealing with the question which fully supports the view stated above and under the circumstances the decision of the Madras High Court (supra) cannot be followed or atleast distinguished.

The reasoning of the pro-precedent in regard to the question has been in view of the clear provisions of Sections 18 - 20, to summarise, the acknowledgment of a liability in respect of a property or right should be made in writing, signed by the party against whom such property or right is claimed. To mean that, it must be by the person who is liable to answer in regard to such a right or to discharge the liability and secondly the expression in Section 19 that the payment on account of a debt by the person liable to pay the debt means that such a payment to have the benefit of extension of period of limitation should be in regard to the very person who makes the payment and not to any other person except a duly authorised agent mentioned therein within the meaning of Section 20(1) of the Act.

Thus, on a proper application of the correct legal decisions enunciated above, this Court should conclude that acknowledgment of a debt by one of the co-debtors or payment by one of them does not extend the period of limitation either under Sections 18 or 19 of the Act. In this case, clearly Ex.A2 did not give Ihe benefit to the plaintiff to seek the extension of period of limitation as against the 2nd defendant. The learned Sub-Judge was either not called upon to decide these questions in detail nor he has done it and therefore, this Court having examined the question in detail and in the light of the facts of this case, proposes to set aside the decree of the learned Sub-Judge as against Defendant No.2

The petition is partly allowed. The judgment and decree of the learned Sub-Judge is set aside only in regard to defendant No.2 and confirmed in regard to defendant No.l. There shall be no order as to costs against Defendant No.2 in the trial Court and no order as to costs in this revision petition in regard to anybody.