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Dev Chand Chatraji Vs. Jamsedji Shahpurji - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in74Ind.Cas.302
AppellantDev Chand Chatraji
RespondentJamsedji Shahpurji
Excerpt:
limitation act (ix of 1908), sections 19, 20, 21 - joint debt--part payment recorded by one defendant and signed by other--acknowledgment. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - in my opinion, that clearly amounted to an acknowledgement that the liability was continuing......case, however, jamsedji authorised the 2nd defendant to make payments towards the reduction of the joint debt, and signified that not only by being present when the payment was made but by signing underneath. in my opinion, that clearly amounted to an acknowledgement that the liability was continuing.3. section 19 provides for an acknowledgement in writing. section 20 provides other means by which a debt can be kept alive. but those acts which are mentioned therein, which, if done by a debtor will starts fresh period of limitation, are acts, which in effect constitute an acknowledgment of the liability.4. i think, therefore, that the rule must be made absolute and there must be a decree against the 1st defendant also with costs throughout.crump, j.5. i agree. upon the facts of this case.....
Judgment:

Norman Macleod C.J.

1. One Sorabji Rustomji and Jamsedji Shahpurji signed an entry in the plaintiff's book to the effect that they had borrowed Rs. 5.39 which the promised to pay. Payments were made of account which appeared in the handwriting of Sorabji, with the signature of Jamsedj Shahpurji added. The plaintiff relied upon these entries as saving limitation under Section 20 of the Limitation Act. The learned Judge held that the claim a rains Jamsedji, the 1st defendant in the suit was time barred; and that, although he was present at the time when the payment were made, still as he had not himself writ-tea the fact that he made the payment the payment could be of no use against him as part payment in his own hand. It that view were correct then it would be, in my opinion,, a very startling interpretation of the law. Where two persons are liable on a debt embodied in a khata and they make payments towards satisfaction of the debt, then it would be absurd to suppose that the law required that it would be necessary that both persons should make entries in the creditor's book. Section 20 of the Limitation Act prescribes that when part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorised in this behalf, a new 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 handwriting of the person making the same. By Section 21(2) nothing in sections 19 and 20 renders one, of several joint contractors chargeable by reason only of a written acknowledgment signed, or of a payment made by, or by the agent of, any other or others of them. The effect of that is that if one of two joint contractors has done anything Which starts a new period of limitation then that new period starts only as against him, riot as against his joint contractor.

2. In this case, however, Jamsedji authorised the 2nd defendant to make payments towards the reduction of the joint debt, and signified that not only by being present when the payment was made but by signing underneath. In my opinion, that clearly amounted to an acknowledgement that the liability was continuing.

3. Section 19 provides for an acknowledgement in writing. Section 20 provides other means by which a debt can be kept alive. But those acts which are mentioned therein, which, if done by a debtor will starts fresh period of limitation, are acts, which in effect constitute an acknowledgment of the liability.

4. I think, therefore, that the Rule must be made absolute and there must be a decree against the 1st defendant also with costs throughout.

Crump, J.

5. I agree. Upon the facts of this case I have no hesitation in holding that when defendant No. 2 paid the sum of Rs. 10 on Ashad Sud the 6th, he made that payment as the agent of defendant No. i. That defendant No. 1 authorised him in that behalf is cleat from the circumstances that he himself was present at the time and that he affixed his signature below that of Sorabij. It follows, therefore, that as regards defendant No. 1, there was a payment made by an agent duly authorised by him, and further that the fact of that payment appears in the handwriting of the person making, it, that is to say the agent of defendant No. 1. Therefore, a fresh period of limitation starts as against defendant No. 1 as from that date. I find nothing in Section 21, which has been invoked in argument, to militate against that view. I agree, therefore, with the order proposed.


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