1. This is an appeal from the decision of the First Class Subordinate Judge of Dhulia dismissing the plaintiff's suit, on two promissory notes, passed by the defendant, on the ground that they are time barred. The only question in this appeal is whether the purshis given by the plaintiff's pleader in the previous suit No. 482 of 1923, filed by the present defendant against the present plaintiff, operates as an acknowledgment under Section 19 of the Indian Limitation Act so as to save limitation.
2. The facts are simple. The promissory notes which were passed or alleged to have been passed by the defendant in favour of the plaintiff are dated, March 17, 1921, and January 6, 1922. The suit is brought on January 19, 1926, and would, therefore, be barred by limitation. But it appears that in a previous suit for accounts by the present defendant against the plaintiff, which is suit No. 482 of 1923, the plaintiff put in an application, Exh. 19 in this suit, saying that as it was not desirable to file a suit on the promissory note of 1921 because the accounts have not been made up, a definite explanation might be obtained from the plaintiff (the present defendant) as to whether she does or does not admit having passed the said and other promissory notes to the defendant, That purshis was put in on March 13, 1924. In reply to it two purshises have been put in by the present defendant, who was then plaintiff. One, Exh. 18, dated March 15, 1924, is to this effect :
The plaintiff admits that the signature on the promissory note dated March 17, 1921, is plaintiff's signature, but she disputes its consideration.
3. The second purshis, Exh. 20, is to the following effect :
The plaintiff admits execution of the promissory notes produced by the defendant. But as the consideration thereof has not been received by the plaintiff she does not admit the same. The account produced by the defendant purporting to be the plaintiff's khata is false and fabricated and the plaintiff does not admit the same. The defendant has withheld the true accounts.
4. The learned Subordinate Judge held that these two purshises did not amount to an acknowledgment under Section 19 of the Indian Limitation Act, on the grounds, firstly, that they are not signed by the defendant herself but by her gumasta and pleader, who has not been proved to be authorised to sign the acknowledgment, and, secondly, that they do not amount to an acknowledgment under Section 19 of the Indian Limitation Act because they do not contain any acknowledgment of liability but on the contrary show that the liability was either expressly denied or was disputed. The suit was accordingly dismissed as barred by limitation. The plaintiff appeals.
5. So far as regards the first point, viz., the signature, Section 19 of the Indian Limitation Act requires that an acknowledgment should be signed either personally or by an agent duly authorised in this behalf. The gumasta is not shown to have power to sign on behalf of the plaintiff (present defendant). But in the ordinary course of his duties a pleader has authority to bind his client by admissions of fact provided such admissions are made during the actual progress of litigation. There are numerous cases quoted at p. 15 of Mulla's Civil Procedure Code, and the simple question would be whether, after the signing of these purshises by the then plaintiff's pleader, it would have been necessary to prove the execution of the promissory notes. Obviously it would not. As to whether these purshises amount to an acknowledgment or not the learned Subordinate Judge has dealt with the cases relied on by the appellant in the lower Court, viz., Sukhamoni Chowdhrani v. Ishan Chunder Roy I.L.R. (1898) Cal. 844 Rungo Lall Lohea v. Wilson I.L.R. (1898) Cal. 204 and Ganesh v. Dattrataya I.L.R. (1922) Bom. 144 He has given the facts of those cases and has distinguished them. The cases quoted on the other 'side in the lower Court were Lallu Mal v. Reoti Ram I.L.R. (1923) All. 679 Rangaswami Chetti v. Thangavelu Chetti I.L.R. (1919) Mad. 637 and Narain Rao Kalia v. Manni Kunwar I.L.R. (1922) All. 546
6. Now in matters of this character each case only deals with the terms of the acknowledgment with which it is concerned, and it is not possible to deduce a general proposition on the question of an interpretation of a particular acknowledgment. The execution of the promissory notes has been admitted in that suit by the then plaintiff (the present defendant), but that is coupled with a denial of liability, and therefore, in my opinion, there is no acknowledgment of the debt. The learned Counsel for the appellant has relied particularly on Maniram Seth v. Seth Rupchand I.L.R. (1906) Cal. 1047 : 8 Bom. L.R. 501 where it was held that-
an acknowledgment of liability, should the balance turn out to be against the person making it, is a sufficient acknowledgment under Section 19 of the Limitation Act (XV of 1877), and there is no distinction in this respect between the English and the Indian Law.
7. Now the facts of that case were very different from those in the present. The main question in that case was whether the defendants were liable to the adoptive father of the plaintiff, and the defendant was examined in the proceedings in probate, and he stated therein that-
the applicant (meaning himself ) had open and current accounts with the deceased for the last five years and that the alleged indebtedness would not affect his right to apply for probate.
8. It was held by the Privy Council that this statement operated as an acknowledgment inasmuch as there was an admission (p. 1057)
that there were open and current accounts between the parties at the death of Motiram. The legal consequence would be that at that date either of them had a right as against the other to an account. It follows equally that, whoever on the account should be shown to be the debtor to the other, was bound to pay his debt to the other, and it appears to their Lordships that the inevitable deduction from this admission is that the respondent acknowledged his liability to pay his debt to Motiram or his representative, if the balance should be ascertained to be against him.
9. It would be seen from this that the words 'If the balance turn out to be against him' are not the words of the applicant but the words of the Privy Council. What the applicant said was :-'For the last five years he had open and current accounts with the deceased.' He never said that he did not owe anything to the deceased and therefore this was held to be an acknowledgment of liability. The amount of the liability was of course dependent on the amount which would be found due from him to the deceased on taking accounts. That is a different case to the present where the present defendant denies consideration and therefore repudiates her liability altogether. The argument of the learned Counsel that the acknowledgment of the execution of the promissory notes is an acknowledgment subject to proof of consideration, does not really correctly represent what the defendant said. The defendant does not say that she is willing to pay or liable to pay on proof of the consideration She denies that there was any consideration and says that the accounts are false and therefore she is under no liability whatsoever. In these circum-stances I am of opinion that a distinction can be drawn between this case and the Privy Council case which might be expressed by saying that in the Privy Council case the acknowledgment amounted to this that 'in certain circumstances if the balance turns out to be against me I should be liable,' whereas in the present case the debt was altogether disputed by the defendant and there was a total denial of liability. This seems to me to be sufficient to dispose of the appeal. I do not think it necessary to quote the other cases. I have already said that every case of this class must be considered on its own circumstance as the acknowledgment is peculiar to each case. There is no admission in the present case that anything would be due by the respondent to the appellant in respect of the promissory notes. I hold, therefore, that this is not such an admission as would save limitation under Section 19 of the Indian Limitation Act, assuming that the signature of the pleader is sufficient to meet the requirements of that section, as I think it is.
10. The result is that the appeal will be dismissed with costs.
N.J. Wadia, J.
11. I agree. In my opinion, the purshis given on behalf of the defendant by her pleader in suit No. 482 of 1923 must be held to bind the defendant since the admissions were made by the pleader in the usual course of litigation and under the general authority of a pleader. With regard to the main question as to whether the admissions made in those two purshises amount to an admission of liability within the meaning of Section 19 of the Indian Limitation Act, I am clearly of opinion that they do not amount to such an admission. The learned Counsel for the appellant relies on Explanation 1 to that section for showing that the admission made in the suit of 1923 amounted to an admission of liability. The Explanation says that for the purposes of the section an acknowledgment may be sufficient though it is accompanied by a refusal to pay. The language of the two purshises was clear that only the execution of the promissory notes was admitted and consideration was expressly denied in both cases. In the case relied on for the appellant, Maniram Seth v. Seth Rupchand I.L.R. (1906) Cal. 1047 : 8 Bom. L.R. 501 their Lordships of the Privy Council held that an acknowledgment of liability, should the balance turn out to be against the person making it, was a sufficient acknowledgment under Section 19 of the Indian Limitation Act. It is clear that the admission in that case went very much further than the admission in the present case. In that case the fact that there was an open and current account between the parties was admitted, and it was a natural and legitimate inference from the admission that if on such accounts there was an adverse balance against the person making the admission, he was liable to pay it. It was pointed out in Kandasami Reddi v. Suppammal I.L.R. (1921) Mad. 443 in which the decision of he Privy Council in Maniram Seth v. Rupchand was discussed that, (p. 447):
If defendant [In that case] had been in a position to say that the account [between him and the deceased Motiram] had been settled.he would certainly have said so; for this would have been a much better answer to plaintiff's objection. As he did not say so, the inference that the accounts [had] still remained unsettled is natural and obvious.
12. In that case, therefore, there was a clear admission of the possibility of liability. In the present case there is not merely no such implied admission, but a clear and express denial of the receipt of consideration and therefore of any liability. It cannot possibly be said that the two purshises admitting execution amounted to an admission of liability subject to consideration being proved, when the consideration was expressly denied. That case, therefore, does not support the appellant. The other cases on which the appellant relies have been sufficiently dealt with in the judgment of the lower Court and I entirely agree with the view taken that they do not support the appellant's contention. The two purshises do not amount to an admission of liability for the purpose of Section 19 of the Indian Limitation Act. I agree, therefore, that the appeal must be dismissed with costs.