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Maganlal Harjibhai Vs. Amichand Gulabji - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberFirst Appeal No. 245 of 1925
Judge
Reported inAIR1928Bom319; (1928)30BOMLR733
AppellantMaganlal Harjibhai
RespondentAmichand Gulabji
DispositionAppeal dismissed
Excerpt:
.....section 19, 6-acknowledgment passed beyond period of limitation-plaintiff entitled to sue owing to disability-acknowledgment passed during such extended period is ineffectual-ruzu khata passed beyond period of limitation cannot form the basis of a suit-indian contract act (ix of l872), section 25(3).;under section 19 of the indian limitation act 1908, an acknowledgment of liability must be made before the expiration of the period prescribed for the suit. an acknowledgment made after the expiry of the period prescribed for the suit, bufc during the period when the minor plaintiff could have sued by virtue of section 6 of the act, is not a valid acknowledgment under section 19.;bai hemkore v. masamalli (1902) i.l.r. 26 bom. 782, s.c. 4 bom. l.r. 608. followed.;visram v. tabaji (1912) 15..........defendants nos. 1 and 4 are the debtors of the plaintiffs' family and passed ruzu khatas from time to time from the year 1898. the plaintiffs' father died in the year 1904. it is necessary to mention only the recent khatas. exhibit 5s was passed on march 21, 1912. the subsequent khatas were exhibit 56, dated december 20, 1914, exhibit 57, dated january 4, 1918, and the last exhibit 48, dated december 28, 1920. the suit was brought on december 22, 1923. the first plaintiff attained majority on july 26, 1916, and plaintiff no. 2 attained majority in 1921. if each of the ruzu khatas had been passed regularly within three years of the preceding one, the suit would have been within time. but exhibit 57, dated january 4, 1918, corresponding to magear vad 7th 1924, was more than three;.....
Judgment:

Patkar, J.

1. The plaintiffs in this case sued to recover Rs. 5,697-13-6 as principal and Rs. 1,027-2-6 as interest from defendants Nos. 1 and 4 personally and from the joint family property of the defendants. The suit was brought on December 22, 1923, on a Khata, Exhibit 48, dated December 28, 1920. Defendants Nos. 1 and 4 are the debtors of the plaintiffs' family and passed ruzu khatas from time to time from the year 1898. The plaintiffs' father died in the year 1904. It is necessary to mention only the recent Khatas. Exhibit 5S was passed on March 21, 1912. The subsequent Khatas were Exhibit 56, dated December 20, 1914, Exhibit 57, dated January 4, 1918, and the last Exhibit 48, dated December 28, 1920. The suit was brought on December 22, 1923. The first plaintiff attained majority on July 26, 1916, and plaintiff No. 2 attained majority in 1921. If each of the ruzu khatas had been passed regularly within three years of the preceding one, the suit would have been within time. But Exhibit 57, dated January 4, 1918, corresponding to Magear Vad 7th 1924, was more than three; years from Exhibit 56, dated December 20, 1914, corresponding to Paush Sud 3rd, 1971. Exhibit 57, according to the Gregorian calendar, was passed more than three years after the date of Exhibit 56. Though according to the Hindu calendar, Exhibit 57 would be within three years of the preceding Khata, Exhibit 56, we must, for the purposes of limitation, take the Gregorian calendar, which governs limitation according to Section 25 of the Indian Limitation Act.

2. The learned Subordinate Judge held that Section 6 of the Indian Limitation Act provided for cases of persons affected by legal disability and extended in their case the period of limitation only for purposes of instituting a suit or making an application for the execution of a decree, and that acknowledgments taken for the purpose of starting a fresh period of limitation under Section 19 of the Act did not fall within the purview of Section 6. He therefore, hold that the present claim was not within time, and that the suit could not be based on the Khata, Exhibit 48 dated December 28, 1920.

3. In this appeal, it is urged on the authority of Yenkataramay-yar v. Kothandaramayyar I.L.R.(1889) Mad. 135 that plaintiff' No. 1 who attained majority on July 26, 1916, could have brought a suit on or before July 26, 1919, and therefore the ruzu khata, Exhibit 57, taken on January 4, 19.18, i. e., before the expiration of the period for bringing the suit, was valid under Section 19 of the Indian Limitation Act, and the suit Khata, Exhibit 43, which was within throe years of the passing of the Khata, Exhibit 57, gave a further starting point of limitation and the present suit was within time. It is further urged that if the acknowledgments, Exhibit 57 and Exhibit, 46, were of no avail to bring the suit within time, the plaintiff could bring a suit on Khata, Exhibit 48, according to the decision of the Privy Council in Maniram v. Seth Rupchand (1906) L.R. 33 IndAp 165: 8 Bom. L.R. 501. It is urged that an acknowledgment implied an unconditional promise to pay and the plaintiff could, therefore, bring a suit on the Khata, Exhibit 48, and reliance was placed on the cases of Ghunilal v. Laxtnan Govind I.L.R. (1921) Bom. 24: 23 Bom. L.R. 606 and Narayan v. Chapsi Dosa I.L.R. (1921) Bom. 419: Bom. L.R. 1186.

4. Under Section 6 of the Indian Limitation Act, plaintiff No. 1 could have brought a suit on or before July 26, 1919, within three years of his attaining majority on the authority of the case of Venkataramayyar v. Kothandaramayyar. Under Section 19, the acknowledgment of liability must be made in writing before the expiration of the period prescribed for a suit, The period prescribed must refer to the period prescribed in the third column of the first schedule of the Indian Limitation Act, which would be three years under Article 59 of the Indian Limitation Act. The first acknowledgment must, therefore, be made within three years of the loan, and a fresh period of limitation shall be computed from the time when the acknowledgment is made. The Subsequent acknowledgments must be within three years of the preceding ones. According to Section 19, the acknowledgment must be made before the expiration of the period prescribed for a suit, and not before the expiration of the period within which a suit may be brought. Under Section 6, a minor may institute the suit and make an application within the same period after the disability has ceased as he would otherwise have been allowed from the time prescribed there for in the third column of the first schedule. The time prescribed there for in the third column of the first schedule is different from the extended period within which a minor may bring a suit after the disability has ceased. The acknowledgment of liability must, therefore, under Section 19, be given before the expiration of the period prescribed there for in the third column of the first schedule and not before the expiration of the period within which a minor racy bring the suit. The period prescribed by the first schedule and the period within which a suit may be brought are distinct and the difference is clear from the language oi Section 3 of the Indian Limitation Act.

5. This view is in accordance with the view taken in Bai Hemkore v. Masamalli (1902) I.L.R. 26 Bom. 782, s.c. 4 Bom. L.R. 608 where an acknowledgment was given after the period of limitation prescribed by the Indian Limitation Act but before the period within which the plaintiff could bring a suit under Section 5 of the Indian Limitation Act of 1877, corresponding to Section 4 of the present Act, it was held that the suit was barred, as the acknowledgment was passed after the three years had expired, although the right to sue might have been subsisting on the date of the acknowledgment owing to the intervention of the vacation under Section 5 of the Indian Limitation Act. Dealing with a similar contention in that case, Sir Lawrence Jenkins said (p. 784):-

But Section 19 of the Limitation Act requires that an acknowledgment should be given before the expiration of the period prescribed for the suit. That period is determined by schedule II of the Act; and though in this case the right of suit may have been subsisting on October 28, 1897, in the sense that the suit could under the circumstances have been instituted on October 29, 1897, that was not because the period of limitation proscribed for the suit had not expired, but because notwithstanding the expiration of that period, there is a special right under the provisions of Section 5 to institute the suit on the day on which the Court reopened.

6. We follow the case of Bai Hernkore v. Masamalli in preference to the view of Beaman J. in the case of Viaram v. Tabaji (1912) 15 Bom. L.R. 348. Though Exhibit 57, the ruzu khata, dated January 4, 1918, might have been passed by the defendants before the plaintiffs' right to bring the suit was subsisting on account of the minority under Section 6, it was not within the period prescribed for bringing the suit within the meaning of Section 19. The acknowledgment, Exhibit 57, therefore, is not a valid acknowledgment, and Exhibit 48, which was a subsequent acknowledgment would not save limitation. The plaintiffs' claim, therefore, is, in our opinion, barred by limitation.

7. On the question whether the plaintiffs could bring a suit on Exhibit 48, the ruzu khata, dated December 28, 1920, reliance placed on the Privy Council decision in Maniram v. Seth Rupchand and the case of Chunilal v. Laxman, dissenting from I the decision in Shankar v. Mukta I.L.R. (1896) Bom. 513. The Privy Council decision : in Maniram v. Seth Rupchand related to the validity of; an acknowledgment which was passed within the prescribed, period of limitation and laid down that an unconditional acknowledgment implied a promise to pay. In Chunilal v. Laxman Govind, it was hold that where an acknowledgment, made before the limitation period expired, implied an unconditional promise to pay, there was no reason why it should not form the basis of a suit. In Chunilal v. Laxman Govind the acknowledgment was within the period of limitation. In Narayan v. Chapsi Dosa I.L.R. (1921) Bom. 419, s.c. 23 Bom. L.R. 1186 the learned Chief Justice restricted the scope of the ruling in Chunilal v. Laxman Govind to an acknowledgment passed within the period of limitation, and did not express any opinion on the question whether an acknowledgment, given after the period of limitation had expired, was sufficient to form the basis of a new action on the ground that it implied a promise to pay.

8. In the present ease acknowledgment Exhibit 48 does not contain an express promise to pay. The words baki deva, i. e., balance due, at the foot of a Gujarati account are held not to amount to a promise. See lianohhoddas Nathubhai v. Jeychand Khushal Chand I.L.R. (1884) Bom. 405 and Ramji v. Dharma. I.L.R. (1882) Bom. 683 Under Section 25, Clause (3), of the Indian Contract Act, an agreement without consideration is void unless it is a promise made in writing 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. If there is an express promise to pay, made in writing and signed by the person to be charged, therewith to pay a time-barred debt, it may be made the basis of a suit, but we think that an implied promise to pay to be inferred from an acknowledgment which contains no express promise to pay a time-barred debt, cannot be made the basis of a suit.

9. In Gobind Dos v. Sarju Das I.L.R. (1908) All 268 referring to the passage in Maniram v. Seth Rupchand I.L.R. (1906) Call. 1047: 8 Bom. L.R. 501. relating to the inference by implication of a promise to pay, from an unconditional acknowledgment, it was said (p. 270):-

If we were to give to this passage the wide meaning contended for and hold whenever there is a clear acknowledgment; of a debt, whether time barred or not, that is equivalent to u promise upon which a suit may be maintained, the result would be that the effect of the opening words of Section 19 would be nullified. That section renders it necessary that the acknowledgment referred to therein must be made before the expiration of the period prescribed for the suit. It is evident that in the case cited their Lordships had no intention of in any way departing from the clear meaning of the language of Section 19.

10. In Ram Bahadur Singh v. Damodar Parsed Singh (1921) 6 p.l.j. 121 it is held that although the English law makes no distinction between an acknowledgment or promise which is sufficient to extend time in the case of a debt which is not yet barred, and an acknowledgment or promise which is sufficient to create a new contract where the debt hag already become barred by lapse of time, in India a distinction has always been drawn between an acknowledgment which is sufficient to extend time under Section 19 of the X Indian Limitation Act, and a promise to pay a barred debt under f Section 25(3) of the Indian Contract Act, and that a mere acknowledgement of' the debt without a promise to pay is insufficient to create a new contract to pay.

11. We think, therefore, that Exhibit 48, which is an invalid acknowledgment and does not contain an express promise to pay, cannot be made the basis of a suit. We think, therefore, that the plaintiffs' suit must.

12. We would, therefore, dismiss the appeal with costs.

Baker, J.

13. There is no dispute as to the facts in this appeal. The plaintiffs sued to recover Rs. 5,697-13-6 as principal and Rs. 1,027-2-6 as interest with future interest and costs from the defendants on a Samadaskat Khata dated Magshar Shud 3s Sam vat 1977, corresponding with December 28, 1920.

14. The dealing commenced from, the time of the plaintiffs' father and various acknowledgments were taken in order to keep the claim within limitation. Admittedly Exhibit 57, which is the acknowledgment preceding the one on which the suit is brought, was beyond time, being more than three years from the preceding acknowledgment Exhibit 56. Exhibit 56 is dated December 20, 1914, arid Exhibit 57 is dated January 4, 1918, which is more than three years after Exhibit 57.

15. The plaintiffs' father died long before that date, when the plaintiffs were minors. Plaintiff No. 1 attained majority on July 26, 1916, and took an acknowledgment on January 4, 1918, Exhibit 57, and another Exhibit 48 on December 28, 1920, the suit being brought within three years of Exhibit 48. The suit would appear, therefore, prima facie time-barred as not having been brought within three years of the plaintiffs' attaining majority, It is contended tbat he having attained majority on July 26, 1916, and the acknowledgment, Exhibit 57, having been taken on January 4, 1918, within three years from his attain ing majority limitation is saved.

16. Under Section 6 of the Indian Limitation Act a minor may institute a suit within the same period after attaining majority as would otherwise have been allowed from the time prescribed for the suit in the third column of the first schedule attached to the Indian Limitation Act, and if at the time of the plaintiffs' father's death the suit was within time, no doubt plaintiff would have three years in which to sue after attaining majority, whether any acknowledgment had been taken during his minority or not. The present case, however, is different. The plaintiff No. 1 did not bring the suit within three years after attaining majority, but he claims to have revived the debt by taking an acknowledgment within three years from the date of attaining his majority. I am of opinion that under Section 6 of the Indian Limitation Act a minor plaintiff on attaining majority must sue within three years and this period cannot be extended by taking an acknowledgment in respect of the debt which would be time-barred but for the operation of Section 6. The learned Counsel for the appellants has relied upon Halsbury's Laws of England, Vol. XIX, pp. 56-57, in support of his contention. There ia no case exactly on all fours with the present, but in Bai HemJcore v. Masamalli I.L.R. (1902) Bom. 782 COM DOTEN 334 Bom. L.R. 608 it was held that Section 19 of the Indian Limitation Act requires that an acknowledgment should be given before the expiration of the period prescribed for the suit. That period is determined by schedule II of the Act; and though in this case the right of suit may have been subsisting on October 28, 1897, in the sense that the suit could under the circumstances have been instituted on October 29, 1897, that was not because the period of limitation prescribed for the suit had not expired, but because notwithstanding the expiration of that period, there was a special right under the provisions of Section 5 to institute the suit on the day on which the Court re-opened.

17. Section 19 of the Indian Limitation Act provides that an acknowledgment must be within the period of limitation and the fact that the plaintiff had a right under Section 6 to bring his suit within three years of his attaining majority does not affect this condition imposed under Section 19.

18. In Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakski Mahapmtrulu Garu I.L.R. (1901) Mad. 387: 3 Bom. L.R. 303, p.c. it was held by the Privy Council that the proviso governing Section 7 of the Indian Limitation Act of Ib77 is that the time allowed after the period during disability shall not in any case extend over more than three years from the date when the disability ceased. This proviso is Section 8 of the present Act.

19. The case quoted by the learned Counsel for the appellant, Venkataramayyar v. Kothandaramayyar I.L.R.(1889) Mad. 135 does not cover the facts of the present case as there the plaintiff brought the suit within two years of his attaining majority, which is not the case here. I am, therefore, of opinion that the period during which an acknowledgment could be taken having expired the plaintiff' could not save limitation by means of an acknowledgment and his only remedy was to bring the suit within three years of his attaining majority, As he did not do so the suit is barred by limitation.

20. As regards the second point, it is contended that even if the acknowledgment doss not save limitation the plaintiff' is entitled to base his suit on Exhibit 48, the acknowledgment of December 28, 1920. This is a point which came before me in the last year on the Original Side in Suit No. 2538 of 1926, Thakkar Hansraj Parshottam v. Thakkar Govind Shamji, and I see no reason to differ from the view which I held in that case, that an acknowledgment cannot form the basis of a suit.

21. The acknowledgment in the present case does not contain a distinct promise to pay. It is argued that Chunilal v. Laxman : (1921)23BOMLR606 has overruled the decision in Shankar v. Mulda I.L.R. (1896) Bom. 513. In Chunilal v. Laxman the acknowledgment was within the period of limitation, and the question whether an acknowledgment even after the period of limitation has expired, is sufficient to form the basis for a new action on the ground that it implies a promise to pay, was left open as is quite clear from a later judgment of Sir Norman Macleod in Narayan v. Chaps : (1921)23BOMLR1186 in which he says (p. 1190) : -

The question is still open...and...that we would be going further if we hold that even if it [the acknowledgment is signed after the period of limitation, it would skill afford the basis for a fresh action.

22. It has, therefore, not been decided by this Court that a Khata signed after the period of limitation will afford the basis for an action.

23. The Privy Council case of Manimm Seth v. Seth Rupchand refers to an acknowledgment under Section 19 of the Indian Limitation Act and does not cover the point at issue in the present case. Section 25, Clause (3), of the Indian Contract Act, refers to a promise to pay a time-barred debt, but it has been held that a Khata or account stated is a mere acknowledgment as distinguished from a promise to pay under Section 20(Jelhibui v. Putlibai (1912) 14 Bom. L.R. 1920. So also a bare statement of an account is not a promise within the meaning of this section (Ramji v. Dharma I.L.R. (1882) Bom. 683. The words 'baki deva' (balance due) at the foot of a Gujarati account were held not to amount to a promise in Ranchhoddas Nathubhai v. Jeychand Khushal Chand I.L.R.(1884) Bom. 405.

24. The present Khata does not contain any promise to pay, and I am of opinion that a suit cannot be based upon it, The result is that the appeal must be dismissed with costs.


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