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Jagan Nath and anr. Vs. Kunwar Girwar Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All368
AppellantJagan Nath and anr.
RespondentKunwar Girwar Singh
Excerpt:
.....2. the court of first instance dismissed the plaintiff's suit, holding that the promissory note in suit was not admissible in evidence and that the plaintiff' failed to establish his right to recover the sum claimed by other evidence. the lower appellate court took a contrary view and decreed the plaintiff's suit, holding that on a consideration of all the circumstances of the case, including the defendant's written statement, the promissory note in suit was really a renewal of the old debt of 1922, and that the suit may well be considered to be one for enforcement of liability under the latter. 4. in other words if the acknowledgment of the liability is capable of being identified with the liability sought to be enforced in the suit by adducing independent evidence, the..........was that the defendant had borrowed rs. 1,680 in cash on the date he executed the promissory note in suit. in defence it was pleaded that no cash advance had been made on 5th august 1925, that the defendant had executed a ruqqa on 6th august 1922, and that the promissory note in suit related to what was due under the previous ruqqa after relinquishment of rs. 29 by the plaintiff. it should be mentioned that the promissory note dated 5th august 1925 on which the suit was founded bore a stamp of one anna only. it should have borne stamp of two annas. it was pleaded by the defendant that the promissory note in suit was not admissible in evidence for want of proper stamp duty. this plea was unanswerable, and its force was recognized both by the trial court and by the plaintiff in the.....
Judgment:

Niamatullah, J.

1. This is a defendant's appeal arising out of a suit brought by the plaintiff-respondent for recovery of Rs. 1,841-12-0 being principal and interest alleged to be due under a promissory note dated 5th August 1925 admittedly executed by the defendant-appellant for Rs. 1,680. The plaintiff's case as set forth in the plaint was that the defendant had borrowed Rs. 1,680 in cash on the date he executed the promissory note in suit. In defence it was pleaded that no cash advance had been made on 5th August 1925, that the defendant had executed a ruqqa on 6th August 1922, and that the promissory note in suit related to what was due under the previous ruqqa after relinquishment of Rs. 29 by the plaintiff. It should be mentioned that the promissory note dated 5th August 1925 on which the suit was founded bore a stamp of one anna only. It should have borne stamp of two annas. It was pleaded by the defendant that the promissory note in suit was not admissible in evidence for want of proper stamp duty. This plea was unanswerable, and its force was recognized both by the trial Court and by the plaintiff in the initial stages of the suit. The plaintiff was, however, allowed to establish his right to recover the sum claimed by him by proving the existence of the debt by other evidence, the promissory note being altogether excluded from consideration. The promissory note in suit was accompanied by a receipt simultaneously executed by the defendant. It recites that

the executant has executed a ruqqa or promissory note in lieu of Rs. 1680, duly received by him for which this receipt is executed,

2. The Court of first instance dismissed the plaintiff's suit, holding that the promissory note in suit was not admissible in evidence and that the plaintiff' failed to establish his right to recover the sum claimed by other evidence. The lower appellate Court took a contrary view and decreed the plaintiff's suit, holding that on a consideration of all the circumstances of the case, including the defendant's written statement, the promissory note in suit was really a renewal of the old debt of 1922, and that the suit may well be considered to be one for enforcement of liability under the latter. As regards the question of limitation it held that the receipt dated 5th August 1925 furnished an acknowledgment within the meaning of Section 19, Lim. Act, and made the suit which is within three years, from the date of the receipt within limitation. The plaintiff's suit was accordingly decreed. The defendant has preferred the present second appeal.

3. The learned advocate for the appellants has contended that there is nothing in the receipt to indicate that the previous debt due under the promissory note of 1922 was acknowledged by the receipt of 5th August 1925 and that therefore it cannot be construed as an acknowledgment within the meaning of Section 19, Lim. Act. We are unable to give effect to this contention. The receipt does not state whether the sum of Rs. 1,680 acknowledged thereunder was advanced in cash on its date or was due under the earlier loan transaction. It is consistent with either of the two alternatives. The defendant insisted in para. 2 of his written statement on the promissory note and the receipt dated 5th August 1925 evidencing not a cash advance but money due under the earlier loan transaction. The lower appellate Court has found as a fact that the defendant's story is the correct one, and rejected the plaintiff's version that cash had been lent on 5th August 1925. It is not argued before us that the learned Subordinate Judge was not justified in allowing the plaintiff to succeed on foot of the promissory note dated 6th August 1922. The only argument with which we are concerned is whether receipt dated 5th August 1925 is a sufficient acknowledgment to save limitation, assuming that the plaintiff's claim is based on the promissory note dated 6th August 1922, as to which no flaw is suggested. Explanation 1 Section 19, Lim. Act, provides that

for the purpose of this section an acknowledgment may be sufficient though it omits to specify the exact nature of the... right

alleged to have been acknowledged.

4. In other words if the acknowledgment of the liability is capable of being identified with the liability sought to be enforced in the suit by adducing independent evidence, the acknowledgment should be regarded as a good acknowledgment for the purpose of saving limitation. In the case before us the contents of the receipt have been admitted by the defendant appellant himself to refer to the money due under the earlier promissory note dated 6th August 1922. It follows that the liability acknowledged by the receipt to which the defendant was subject on its date was the liability enforceable under the promissory note dated 6th August 1922. For these reasons we think that the lower appellate Court was justified in decreeing the plaintiff's claim on foot of the promissory note dated 6th August 1922, In this view the appeal must fail and is accordingly dismissed with costs.


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