Puliyath Govinda Nair vs Parekalathil Achutan Nair

Abdur Rahman, J.—A suit was instituted by the petitioner for the recovery of Rs. 288 and odd, being the price of paddy alleged to have

been due by the respondent''s brother and verbally agreed to be paid by the respondent. The lower Court found in favour of the agreement but

refused to give effect to it as it was held to be without consideration. The plaintiff has consequently come up in, revision.

It may not be quite correct to say that the agreement between the parties to the suit was without any consideration. The agreement by the

plaintiff to release the defendant''s brother from liability - if it was legally enforceable at the time when the agreement was said to have been

reached - was quite a good consideration for the new agreement between the parties to the suit. But if ""the plaintiff''s claim against the defendant''s

brother was barred by limitation on the date on which this agreement was arrived at and the contract was not reduced to writing as required by

Section 25(3) of the Indian Contract Act, it would remain unenforceable. Mr. Govinda Menon contends, however, that this section has no

application to an agreement which was entered into between the parties to the present suit but must be confined in its operation to the agreement

arrived at between the original parties thereto, if attempted to be enforced by the original creditor against the original debtor. Section 25 of the

Indian Contract Act, so far as it is relevant to the present case, reads as follows:

An agreement made without consideration is void unless it is a promise made in writing and signed by the person to be charged therewith, or by his

agent generally or specially authorised on that behalf, to pay, wholly or in part, a debt of which the creditor might have enforced payment but for

the law for the limitation of suits.

The words ""by the person to be charged therewith"" are wide enough to cover the case of a person who agrees to become liable for the payment

of a debt due by another and need not be limited to the person who was indebted from the beginning. This difficulty seems to have been

recognised on behalf of the plaintiff and a letter Exhibit C was produced by him at the trial. This was written by the defendant on the 20th May,

1933, to the plaintiff asking him to come and receive 50 paras of paddy ""towards what was to be given to"" him. A perusal of this letter shows that

although it contained a definite request to receive 50 paras of paddy, yet there was nothing in it which could be said to disclose an express promise

to deliver the remaining paddy; and in the absence of an express promise, this letter cannot be held to comply with the requirements of the section.

The promise referred to in Section 25, Sub-clause 3 of the Indian Contract Act must be an express one and cannot be held to be sufficient if the

intention to pay is unexpressed and has to be gathered from a number of circumstances. In other words there must be a distinct promise to pay

before the document can be said to fall within the provisions of this section. See Ramaswami Pillai v. Kuppuswami Pillai (1910) M.W.N. 547,

Gobind Das v. Sarju Das I.L.R.(1908) All. 268, Maniram Seth v. Seth Rupchand (1906) 16 M.L.J. 300 : L.R. 33 IndAp 165 : ILR 33 Cal. 1047

and Mukhi Lal v. Gul Muhammad AIR 1933 Lah. 209. Reliance was placed by the learned Counsel for the petitioner on Appa Rao v.

Suryaprakasa Rao (1889) 9 M.L.J. 330 : ILR 23 Mad. 94 and Maidens Hotel, Delhi v. Willnott AIR 1935 Lah. 984, but they do not bear out his

contention. It was Held in the first case that a document sufficiently complies with Section 25 of the Contract Act if an intention to pay a debt

wholly or in part has been expressed therein in such a way as to constitute a promise and the debt is sufficiently identifiable although the amount

promised to have been paid remained unstated. This is not the same thing as saying that the promise to pay the debt need not have been expressed

or that an implied promise was enough for the purposes of this section. The Lahore case lays down nothing more than that a letter containing a

promise to pay a debt which was barred by the law of limitation is itself an agreement enforceable in law. This follows directly from the language of

the section but renders no assistance to the petitioner''s case.

It was then urged by Mr. Govinda Menon that the express promise to pay a portion of the debt due was quite enough to bring the case within

Section 25(3) and that after such a promise not only could the portion of the debt so promised be sued for, but that it provided a good cause of

action even in Regard to the portion for which there was no express promise in the document. The contention that if a person promises to pay a

part of the debt, he should be taken to have promised to pay the whole of the debt has, in my opinion, no substance. If a person promises to pay a

portion of a barred debt, he can only be sued for that portion alone and not for the whole debt. If, on the other hand, he promises to pay the whole

of the barred debt in writing he could be sued for the whole of the debt. Illustration (e) given in the section would show what the Legislature really

meant by the use of the words ""wholly or in part of the debt."" If the contention raised by Mr. Govinda Menon were accepted it would lead to

startling results. If a person promises to pay only a portion of the debt which is barred by limitation, he would according to Mr. Govinda Menon''s

construction of the section become liable to pay the balance of the debt as well which he had not promised to pay and which apparently he had no

intention to pay. This could never have been intended by the Legislature and this would be the inevitable conclusion if this contention were

accepted. It must therefore be held that inasmuch as the letter Ex. C contains no express promise to pay the portion of the debt now sued for, it is

of no value to the plaintiff in this suit.

In the end it was contended that there was no proof on the record that the debt in regard to which the defendant had made a promise was

barred by limitation. But the plaintiff''s own statement, if read in extenso, leaves no room for doubt that it was.

The result is that this revision fails and is dismissed. But having regard to the fact that the plea in regard to Section 25(3) was not raised on

behalf of the defendant specifically I will leave the parties to bear their own costs throughout.