Ramprabha Ojha vs Bishunath Ojha

Dhavle, J.—This is an application in revision by a plaintiff whose suit for recovery of money due en a hand note has been dismissed as barred by limitation. The defendant had set up a plea of payment also, which was disbelieved by the lower Court. As regards limitation, the position was that the hand note was executed on Kuar 29, 1340 and that on Jeth 30, 1341, the defendant took a fresh loan of Rs. 3 and had eight annas credited in his favour on account of the price of a katahal (jack fruit) previously supplied by him to the plaintiff, and had signed as correct the account that was made up on that date between the parties. The defendant''s endorsement on the account was "Sahi Bishunath Ojha (defendant) hisab mokable bhail se sahi." The lower Court held that the account signed by defendant No. 1 must be shown by the plaintiff to be "an acknowledgment with promise to pay" before the plaintiff could succeed and that "liability to pay cannot in express and clear terms be inferred from the accounting." The learned Small Cause Court Judge accordingly held that there was no sufficient acknowledgment within s 19, limitation Act. It has been contended on behalf of the plaintiff-petitioner that the view of the lower Court on this point is erroneous, and the contention is supported by authority. In Maniram Seth v. Seth Rupchand 33 C. 1047 : 33 I.A. 165 : 2 N.L.R. 130 : 4 C.L.J. 94 : 10 C.W.N. 874. Sir Arthur Wilson delivering the opinion of the Judicial Committee observed:

An unconditional acknowledgment has always been held to imply a promise to pay, because that in the natural inference, if nothing is said to the contrary. It is what every honest man would mean to do.

There are several Madras cases in which it has been pointed out that an acknowledgment for the purposes of Section 19, Limitation Act, need not necessarily contain a promise to pay, or amount to a promise to pay. The endorsement made by the defendant in the present case acknowledged the correctness of an account which showed him a debtor to the extent stated. There is thus a clear acknowledgment of the debt, with the ordinary implication of a promise to pay, and this is sufficient for the purposes of Section 19, Limitation Act. There is no dispute that the acknowledgment was made on a date which saves the suit from being time-barred.

There was also another contention advanced on behalf of the plaintiff-petitioner as regards the saving of limitation which was overruled by the trial Court. This was the accounting of the eight annas in respect of the price of the jack fruit previously supplied to the plaintiff. The lower Court took it that the payment must be taken to have been made on the date the katahal was delivered to the plaintiff: but the delivery of the katahal had originally nothing to do with the loan so far as one can find, and it was only on the date of the accounting that it appears to have been agreed between the parties that the katahal should be treated as worth eight annas to be credited to the defendant in the account. In Marina Ammayi Vs. (Changanti) Sundayya and Others, , it was held that though an actual payment is made on a previous date, if the parties on a later date agree to treat it as a payment of interest, a fresh period of limitation will begin to run u/s 20, Limitation Act, from the latter date, that it is unnecessary under the section that money should actually pass, as a settlement of account may be as effectual as a real payment and that, therefore, a transaction whereby the parties agree that an amount previously due by the creditor to the debtor shall be treated as amount paid by he latter to the former, is in substance identically with a transaction where the debtor receives actual payment and pays the amount back to the creditor. It follows, therefore, that the price of the katahal which was settled on the date of the accounting and entered in the account to the credit of defendant, operates as a payment to the plaintiff on that date, and thus u/s 20, Limitation Act, saves the suit for limitation.

The learned Advocate for the opposite party has endeavoured to assail the whole from the ground that it was based not on the hand note but on the acknowledgment and must therefore fail. He has cited Bal Krishna and Others Vs. Deb Sing , in support. But that was a case where the learned Judges considered it necessary to have the plaint amended on this ground as against those defendants only who had not signed the hand note. In the present case it was the defendant himself who executed the hand note. The suit is, morever, clearly based on the hand note, though Paragraph 3 of the plaint is somewhat clumsily expressed and dates the cause of action not on the date of the hand note but on the date of the acknowledgment in order to take the case out of limititation. The ;earned Advocate has also urged that if the acknowledgment was the basis of the suit, it should have been stamped, and that in default of a stamp, it is not admissible on evidence. As was held in Magham Chinna Subbaroyudu and Others Vs. Vangala Narasimha Reddi and Another, , however an acknowledgment of the correctness of the account does not require a stamp to be valid. The plaint was undoubtedly inartistically drafted, but we must not lose sight of the essence of the matter.

The defendants plea of payment has failed entirely, and his defence of limitation, which was accepted by the lower Court, has already been shown to be entirely unsound in law; this application u/s 25, Provincial Small Cause Courts Act, must therefore, be allowed and the suit decreed with costs in both Courts; hearing fee in this Court one gold mohur.