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Pandurang Shivram Pardeshi Vs. Maruti Niloba Khamkar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 759 of 1926
Judge
Reported in(1928)30BOMLR688
AppellantPandurang Shivram Pardeshi
RespondentMaruti Niloba Khamkar
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), section 19-acknowledgment-letter by defendant to plaintiffs brother.;the defendant, who was indebted to the plaintiff in a sum of money, wrote a letter to the plaintiff's brother, in which he said: 'there is no use creating unnecessary hitch because 1 would pay and you would receive the balance':-;that the letter was an acknowledgment within the meaning of section 19 of the indian limitation act 1908.;maniram v. seth rupchand (1906) l.r. 33 i.a. 165, s.c. 8 bom. l.r. 501 followed. - .....receive the balance. paying and dying cannot be avoided.' then he stated that instead of filing a suit, the accounts should be settled, and if anything was due by him, ho would pay, and if anything remained due to him, it should be paid to him. then he referred to a previous letter in which he admitted his liability to pay off the balance by performing service. it is urged on behalf of the appellant that this letter is not a sufficient acknowledgment within the meaning of section 19 of the indian limitation act, and reliance is placed on andiappa chetty v. alasinga naidu i.l.r (1911) mad. 69 madhavrav v. gidahbhai i.l.r (1898) bom. 177; and jogeshwar roy v. raj narain mitter i.l.r (1903) cal 195. in andiappa chetty v. alasinga naidu, there was i no acknowledgment of any liability but.....
Judgment:

Patkar, J.

1. In this suit the plaintiff sued to recover a sum of Rs. 1,100 from the defendant due on accounts from 1915 to 1921. The plaintiff's contention was that the defendant was an agriculturist. The defendant, however, denied that he was an agriculturist. An issue was raised in the first Court, 'Does the plaintiff prove that the defendant is an agriculturist'? The learned Subordinate Judge held that he was not an agriculturist. On appeal, the learned Assistant Judge held that the defendant must be considered to be an agriculturist, maintaining himself by agricultural income. The first item in the accounts, according to the learned Assistant Judge, is on November 5, 1918, and if the defendant is an agriculturist, the claim would be within time under Section 72 of the Dekkhan Agriculturists' Relief Act, if it was proved that the defendant was an agriculturist at the time when the cause of action arose. It is urged on behalf of the appellant that the finding that the defendant was an agriculturist at the date of the suit is not sufficient for the application of Section 72, and that it must be proved that the defendant was an agriculturist at the time when the cause of action arose.

2. In both the lower Courts the proper issue was not raised. If it had been necessary in this case to find whether the defendant was an agriculturist at the time when the cause of action arose within the meaning of Section 72, it would have been necessary to send down an issue to the lower Court. But apart from the question whether the suit is within time under Section 72 of the Dekkhan Agriculturists' Relief Act, we think that the suit is within time on account of the acknowledgment in the letter of the defendant dated September 20, 1922. That letter was addressed by the defendant to the plaintiff's brother. Under Section 19 of the Indian Limitation Act, it is not necessary that it must be addressed to the creditor. It has been signed by the defendant. It contains an acknowledgment of his liability in ease the accounts showed that he was liable to pay any amount and he agreed to pay the;, balance. He says in the letter : 'There is no use creating un-,' necessary hitch, because I would pay and you would receive the balance. Paying and dying cannot be avoided.' Then he stated that instead of filing a suit, the accounts should be settled, and if anything was due by him, ho would pay, and if anything remained due to him, it should be paid to him. Then he referred to a previous letter in which he admitted his liability to pay off the balance by performing service. It is urged on behalf of the appellant that this letter is not a sufficient acknowledgment within the meaning of Section 19 of the Indian Limitation Act, and reliance is placed on Andiappa Chetty v. Alasinga Naidu I.L.R (1911) Mad. 69 Madhavrav v. Gidahbhai I.L.R (1898) Bom. 177; and Jogeshwar Roy v. Raj Narain Mitter I.L.R (1903) Cal 195. In Andiappa Chetty v. Alasinga Naidu, there was I no acknowledgment of any liability but only a demand for accounts. The letter in Madhavrav v. Gulabbhai was marked 'without prejudice', and the only acknowledgment which could be spelt out from the letter was an agreement to pay Rs. 30. In Jogeshwar Roy v. Raj Naraiti Mitter the debtor asked for an account in order to see what was due, and it was held that the writing was not an acknowledgment of liability. The present ease resembles the case dealt with by the Privy Council in Maniram, v. Seth Rupohand (1906) L.R. 33 IndAp 165 : 8 Bom. L.R. 501 in which it was hold that an acknowledgment of liability, should the balance turn out to bo against the person making it, is a sufficient acknowledgment under g. 19 of the Indian Limitation Act, and there is no distinction in this respect between the English and the Indian law. The Privy Council approved of the decision in Sitayya v. Rangareddi I.L.R (1887) Mad. 259 in which it was held that an acknowledgment of the plaintiff's right to have accounts taken and of the defendant's liability to pay any balance if such there should be against him was held to satisfy Section 19 of the Indian Limitation Act. Applying the principles laid down by the Privy Council in that case we think that the letter of September 20, 1922, was a sufficient acknowledgment within the meaning of Section 19 of the Indian Limitation Act.

3. It would, therefore, follow that all the items after September 20, 1919, would be within time as the suit was brought on October 24, 1924. It is urged on behalf of the respondent that the whole claim in this suit would be within time, for the amount which has been awarded against the defendant would cover the items from September 20, 1919. This contention on behalf of the respondent, we think, is clear from the accounts and has not been challenged by the other side.

4. We, therefore, hold that the claim is within time on account of the acknowledgment in the letter of September 20, 1922, and, therefore, the decree of the lower Court is right. In this view, it is not necessary to consider whether the suit is also within time under Section 72 of the Dekkhan Agriculturists' Relief Act.

5. For these reasons, we would dismiss the appeal with costs.

Baker, J.

6. I agree. I have no doubt that the letter of September 20, 1922, by the defendant to the plaintiff a brother constitutes an acknowledgment in view of the ruling of the Privy Council in Maniram v. Seth Rupchand (1906) L.R. 33 IndAp 165: 8 Bom. L.R. 501. It contains in clear terms an acknowledgment to pay the balance found due on taking accounts and further states that if the defendant is unable to pay, he would render service to the plaintiff by way of payment. In I these circumstances, the finding of the lower appellate Court appears to be correct, and I agree that the appeal should be dismissed with costs.


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