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Nivajkhan Nathankhan Vs. Dadabhai Musse Valli - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case Number Civil Extraordinary Application No. 183 of 1910
Judge
Reported inAIR1916Bom125(1); (1916)18BOMLR973
AppellantNivajkhan Nathankhan
RespondentDadabhai Musse Valli
Excerpt:
limitation act (ix of 1908), section 20 - part-payment-entry must appear in debtor's handwriting-mere signature not enough.;the part-payment of a debt must, for the purposes of section 20 of the .indian limitation act, appear recorded is the hand writing of the debtor his mere signature to the record of it by another is not sufficient. - - if, then, the fact of payment recorded is not in the hand-writing of the person making the payment, the provisions of the section are not satisfied. so it is unnecessary to consider the cases which have allowed as a good acknowledgment a mere signature or a mark, where it is proved that the person paying was able to do no more in the way of recording the payment......the part payments were recorded by endorsements which the plaintiff admitted were in his hand-writing, but he contended that the endorsement being signed by the defendant was a sufficient acknowledgment within section 20 of the indian limitation act. that section provides that ' a fresh period of limitation shall be computed from the time when the payment was made, provided that in the case of part-payment of the principal of a debt. the fact of the payment appears in the hand-writing of the person making the same.' now, in these endorsements, the fact of the payment appears in the hand-writing of the plaintiff, the person receiving, and not the person making it, and it has been held by the calcutta high court in santishwar mahanta v. lakhikanta mahanta i.l.r. (1908) cal. 813.....
Judgment:

Basil Scott, Kt., C.J.

1. The plaintiff sued the defendant to recover Rs. 219-14-0 as due upon two rent-notes, dated respectively the 27th June, 1909 and the 10th July, 1910, the dates fixed for payment of the rent being the 13^ March 1910 and the and March 1911, respectively. The suit was not brought until the year 1915, but the plaintiff alleged that part payments of Rs. 15 had been made by the defendant. The part payments were recorded by endorsements which the plaintiff admitted were in his hand-writing, but he contended that the endorsement being signed by the defendant was a sufficient acknowledgment within Section 20 of the Indian Limitation Act. That section provides that ' a fresh period of limitation shall be computed from the time when the payment was made, provided that in the case of part-payment of the principal of a debt. the fact of the payment appears in the hand-writing of the person making the same.' Now, in these endorsements, the fact of the payment appears in the hand-writing of the plaintiff, the person receiving, and not the person making it, and it has been held by the Calcutta High Court in Santishwar Mahanta v. Lakhikanta Mahanta I.L.R. (1908) Cal. 813 that a mere signature to an assertion of payment is not sufficient to bring the case within the proviso to Section 20 of the Indian Limitation Act. In that conclusion we concur. Otherwise it is difficult to understand what is meant by the stipulation that the fact of payment should appear in a particular hand-writing. A mere signature is not a statement of a payment, and it is meaningless without something in writing to which it is appended which will record the fact of payment. If, then, the fact of payment recorded is not in the hand-writing of the person making the payment, the provisions of the section are not satisfied. It is not alleged here, much less proved, that the person making the payment could do nothing more than sign his name. So it is unnecessary to consider the cases which have allowed as a good acknowledgment a mere signature or a mark, where it is proved that the person paying was able to do no more in the way of recording the payment. We set aside the decree of the lower Court and dismiss the suit with costs throughout.


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