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Tenumal Bishamal Singhi Vs. Amar Mohandas Sindhi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 998 of 1969
Judge
Reported inAIR1973Bom84; (1972)74BOMLR644; 1972MhLJ946
ActsLimitation Act, 1908 - Sections 18
AppellantTenumal Bishamal Singhi
RespondentAmar Mohandas Sindhi and ors.
Appellant AdvocateM.G. Choudhari, Adv.
Respondent AdvocateK.F. Wadhwa, Adv.
Excerpt:
.....to that claim.;courts lean in favour of a liberal construction of statements on which a plea of acknowledgment of debt is based, though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning.;it is sufficient if the statement on which a plea of acknowledgment is based relates to a present subsisting liability though the exact nature or the specific character of the said liability is not indicated in words. all that is necessary is that the words used in acknowledgment must indicate the existence of jural relationship between the parties such as that of..........was agreed that the amount would be repaid by me by easy instalments. accordingly i have paid from time to time some amount to your client towards these dues, but your client has not deducted the amount paid to him by me. you will please ask your client to send me account of the amounts paid by me to him from time to time. after deducting the amounts paid by me, the balance will be paid by installments as agreed.' thus the above letter contains a clear admission in the first instance that defendant no.1 had borrowed rs. 700/- from the plaintiff. no doubt, the defendant no.1 has in this reply also stated that he had repaid some amount from time to time but at the same time he has also acknowledged that after deducting the payments made by him the balance was still payable by him. as has.....
Judgment:
ORDER

1. This is a revision petition by the original plaintiff against that part of the decree passed by the Joint Civil Judge, Junior Division, sitting on the small cause side, by which the learned Judge dismissed plaintiff's claim to the extent of Rs. 395/-.

2. Plaintiff's case was that respondent No. 1, original defendant No.1 Amar Mohandas Sindhi, borrowed from him Rs. 700/- on October 5, 1964, promising to repay the same by monthly instalments of Rs. 25/-. Defendant No.1 was alleged to have executed the bond (Exh. 18) to that effect. It was alleged that respondent No.2, original defendant No.2, stood surety for defendant No. 1. Plaintiff further averred that after the execution of the bond, defendant No.1 repaid in all Rs. 75/- only and therefore, on September 27, 1967, he issued a notice to the defendants to pay the balance. To this notice, defendant No.1 gave a reply on 11-12-1967 acknowledging his liability. It was, however, stated that neither of the defendants paid the balance. Plaintiff therefore instituted the present suit on the small cause side for recovery of Rs. 625/- as principal and Rs. 112/- on account of interest.

3. Defendant No.1 admitted execution of the bond but pleaded that he had repaid Rs. 400/-. Defendant No.2 denied that he had signed the bond as a surety. He stated that he signed the bond as a witness. A plea of limitation was also raised by these defendants. It was further contended that as there was no agreement to pay interest, the defendants were not liable to pay interest on the account due.

4. The trial Court held that defendant No.2 had signed the bond, Exh. 18, merely as an attesting witness and not as a surety and therefore he was not liable for the suit claim. It further held that the 1st defendant had repaid Rs. 100/- and not Rs. 400/- as contended by him. In other words, according to the learned trial Judge, the first four instalments after the execution of the bond were paid by the 1st defendant and out of the remaining 24 instalments, those that became due prior to 3 years before the institution of the suit, that is to say, prior to February 1966, were barred by limitation and the rest were within limitation. The trial Court therefore held that Rs. 300/- were payable by defendant No.1 on account of principal and Rs. 42/- on account of interest from the date of notice till the institution of the suit. Plaintiff's claim to the extent of Rs. 342/- with interest at 4 percent per annum on the principal amount of Rs. 300/- from the date of suit till realisation was therefore decreed. Plaintiff has now come in revision challenging the correctness of the aforesaid decree passed by the trial Court.

5. There is no substance in plaintiff's contention that defendant No.2 had stood surety for defendant No.1 to repay the debt. The bond (Exh. 18) clearly shows that defendant No.2 had signed it as an attesting witness and not as a surety. The dismissal of plaintiff's claim against defendant No.2 has, therefore, to be upheld.

6. The next question that arises for considerations whether the view taken by the trial Court that the reply, Exh. 22, does not amount to an acknowledgment of debt and hence instalments that fell due prior to February 1966 were barred by limitation is correct. On going through the reply dated 11-12-1967 at Exh. 22, it is difficult to agree with the trial Court. The material portion of the reply reads thus :

'I have borrowed Rs. 700/- from your client and it was agreed that the amount would be repaid by me by easy instalments. Accordingly I have paid from time to time some amount to your client towards these dues, but your client has not deducted the amount paid to him by me.

You will please ask your client to send me account of the amounts paid by me to him from time to time. After deducting the amounts paid by me, the balance will be paid by installments as agreed.'

Thus the above letter contains a clear admission in the first instance that defendant No.1 had borrowed Rs. 700/- from the plaintiff. No doubt, the defendant No.1 has in this reply also stated that he had repaid some amount from time to time but at the same time he has also acknowledged that after deducting the payments made by him the balance was still payable by him. As has been observed by Fry. L. J., in Green v. Humphreys, (1884) 26 Ch D 474 , an acknowledgment is an admission by the writer that there is a debt owing by him, either to the receiver of the letter or to some other person on whose behalf the letter is received but it is not enough that he refers to a debt as being due from somebody. In order to take the case out of the statute there must upon the fair construction of the letter, read in the light of the surrounding circumstances, be an admission that the writer owes the debt. It is not necessary that the exact amount due must have been mentioned in an acknowledgment.

7. In Megh Raj v. Mathura Das, ILR (1913) All 437, it has been observed that a liberal construction should be placed upon documents purporting to be acknowledgments. It is sufficient if the statement on which a plea of acknowledgment is based relates to a present subsisting liability though the exact nature or the specific character of the said liability is not indicated in words. All that is necessary is that the words used in acknowledgment must indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication fro the nature of the admission, and need not be expression in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission need not be express but must be made in circumstances and in words from which the Court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. Stated generally, courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. As the law of limitation restricts a man from enforcing his rights it must receive strict construction, and if there be any doubt, the interpretation placed upon the law should be in favour of the right to proceed. As has been stated in Anantram v. Inayat Ali Khan, AIR 1920 Lah 447, the tenor of the section is certainly strongly against a narrow interpretation of what constitutes an acknowledgment. A narrow interpretation should not be put on what constitutes an acknowledgment under Section 18. It is but just and reasonable that the section should be construed, so as to afford every possible support to a just and lawful claim, against an unjust and unconscionable resistance to that claim.

8. Turning to the wording of the present acknowledgment, it is clear that defendant No.1 has in unambiguous and unequivocal terms admitted his subsisting liability to pay the balance of the debt after deducting whatever amounts were paid by him. Now defendant No.1 contended that he had paid Rs. 400/-; he was able to establish that he had repaid only Rs.100/-. It is, therefore, clear that after deducting this payment, whatever remained due has been acknowledged by defendant No.1. In the circumstances, in my view, the reply at Exh. 22 clearly contains an acknowledgment of subsisting liability to pay whatever balance that remained due after deducting the payments already made. If that be so, then all the 12 instalments which have been held by the trial Court to be barred by limitation will be in time.

9. Thus, the plaintiff has succeeded in establishing that after deducting the repayment of Rs. 100, Rs.600/- are still due to him on account of principal and Rs. 84/- by way of interest prior to the institution of suit. Plaintiff's claim to that extent, therefore, must be decreed.

10. Incidentally it is also necessary to point out that the view taken by the trial Court that the plaint does not show as to how 12 instalments were saved from the bar of limitation, is not correct. In fact, in para 2 of the plaint the plaintiff has referred to the reply dated 11-12-1967 as containing an acknowledgment of debt. It is sufficient for the purposes of Order 7, Rule 6 of the Civil Procedure Code that the facts on which exemptions are claimed are set out in the plaint.

11. In the result, the revision petition succeeds. The rule is made absolute, the decree passed by the trial Court is modified by substituting the figure '684/-' in place of the figure '342/-' in the second para of the operative order and 'Rs. 600/-' in place of Rs. 300/-' in the same paragraph. Defendant No.1 to pay the costs of this petition to the petitioner. Since the heirs of respondent No.2 have not appeared to contest this petition, no order as to their costs.

12. Petition allowed.


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