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Tayerali Mahamadali Vs. Garabad Sadu - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 78 of 1938
Judge
Reported in(1939)41BOMLR455
AppellantTayerali Mahamadali
RespondentGarabad Sadu
Excerpt:
.....operates as part payment of principal or interest-effect of endorsement.;sections 19 and 20 of the indian limitation act, 1908, are independent of such other. there may be an acknowledgment of liability, which comes within section 19, unaccompanied by any, part payment, or there may be an acknowledgment of liability coupled with a part payment which complies with the terms of section 20, in which case the debt is saved from limitation both under sections 19 and 20. where there is a part payment which does not comply with the terms of section 20, the document may still operate as an acknowledgment within section 19 of the act.;venkatakrishniah v. subbarayudu (1916) i.l.r. 40 mad. 698, followed.;on april 13, 1933, defendant passed a promissory note in favour of plaintiff. on october 4,..........out of time, unless the plaintiff can bring his case within one of the exceptions contained in the indian limitation act. he relies upon a document endorsed on the promissory note on october 4, 1934, and the question is whether that document saves limitation under section 19 or section 20 of the indian limitation act. the document states that the debtor has given certain bajri of the value of rs. 54 towards vasul, which means towards payment. that is credited. and then again at the bottom of the document it is stated ' rs. 54 paid as vasul'. so that what it comes to is that there is a payment of rs. 54 on account of the debt, which must mean the debt secured by the document on which this endorsement was made.2. the plaintiff in framing his claim treated the rs. 54 as having been paid on.....
Judgment:

John Beaumont, Kt., C.J.

1. This revisional application raises a short point on the law of limitation. The defendant executed a promissory note in favour of the plaintiff on April 13, 1933, and the suit was filed on November 10, 1936, so that the suit is out of time, unless the plaintiff can bring his case within one of the exceptions contained in the Indian Limitation Act. He relies upon a document endorsed on the promissory note on October 4, 1934, and the question is whether that document saves limitation under Section 19 or Section 20 of the Indian Limitation Act. The document states that the debtor has given certain Bajri of the value of Rs. 54 towards vasul, which means towards payment. That is credited. And then again at the bottom of the document it is stated ' Rs. 54 paid as vasul'. So that what it comes to is that there is a payment of Rs. 54 on account of the debt, which must mean the debt secured by the document on which this endorsement was made.

2. The plaintiff in framing his claim treated the Rs. 54 as having been paid on account of interest, but according to the terms of the endorsement it was not paid expressly as interest, and was not therefore a payment of interest as such within the meaning of Section 20 of the Indian Limitation Act. So that the position which arises is that payment was made to the creditor without any appropriation being made by the debtor, and the creditor subsequently appropriated the payment to interest. In such circumstances it was held by a full bench of the Allahabad High Court in Udaypal Singh v. Lakhmi Chand I.L.R. (1935) All. 261. that the payment would not amount to a payment of interest as such, and the view was expressed by this Court in Havabu v. Isup Musa : AIR1938Bom467 that such payment could not be treated either as a payment of interest as such or as a part payment of principal within the meaning of Section 20 of the Indian Limitation Act. I desire to reserve my opinion as to the legal effect of such a payment because it is not necessary for me to consider the point in the present case. In my judgment this document amounts to an acknowledgment within Section 19 of the Indian Limitation Act. I agree with the view expressed by the High Court of Madras in Vmkatakrishniah v. Subbmayudu I.L.R. (1916) Mad. 698 that Sections 19 and 20 of the Indian Limitation Act are independent of each other. You may have an acknowledgment of liability, which comes within Section 19, unaccompanied by any part payment; or you may have an acknowledgment of liability coupled with a part payment, which complies with the terms of Section 20, in which case the debt is saved from limitation both under Section 19 and under Section 20 ; but if there is a part payment which does not comply with the terms of Section 20, it seems to me that that cannot prevent the document operating as an acknowledgment within Section 19. As I read the decision of the full bench of the Allahabad High Court, so far as it relates to Section 19, the learned Judges held that the document before them did not amount to an acknowledgment. The document with which I have to deal is in different terms and states that the payment is towards payment of the debt, i.e. the debt secured by the promissory note. All that is required under Section 19 is an acknowledgment of liability in respect of the right, and in my opinion this document is an acknowledgment of the liability to pay the debt to which the plaintiff has a right.

3. In my opinion, the plaintiff's suit was in time and the case, therefore, must be remanded to the lower Court to be dealt with on the merits. The petitioner to get the costs of this application.


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