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ishri Prasad Kishun Tewari Vs. Chandrabhan Prasad Kishun Tiwari - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1939All177
Appellantishri Prasad Kishun Tewari
RespondentChandrabhan Prasad Kishun Tiwari
Excerpt:
- - 25 which was endorsed on the promissory note under date 2nd may 1931. the trial court held that this sum of money had not been paid towards interest as such and therefore limitation was not saved under section 20, limitation act, but the learned munsif found that the endorsement amounted to an acknowledgment of payment by the defendant within the meaning of section 19 of the act and that the suit was therefore within time. 22 on 15th december 1931 which was said to have been endorsed on the bend in the handwriting of the defendant. in my opinion the words used in this case clearly contained an acknowledgment that rs. 381-12-0 on 21st april 1916. on 6th november 1916 the defendant endorsed the three previous payments on the promissory note and added them up and signed the total;.....executed by the defendant in favour of the plaintiff who is his brother in renewal of an earlier promissory note dated 27th december 1929. the defendant admitted execution but pleaded that the plaintiff had no cause of action inasmuch as the money had been advanced not by the plaintiff, but by the mother of the parties mt. chhabraji in the plaintiff's name and that 21/2 years before the suit mt. chhabraji had remitted the debt and had handed over the promissory note and the receipt to the defendant, but it had somehow or other fallen into the possession of the plaintiff. it was also pleaded that the suit was barred by limitation. the trial court found that the plaintiff was the real owner of the promissory note in suit and that there was no remission of the debt as alleged by the.....
Judgment:

Collister, J.

1. This is a plaintiff's second appeal. The suit was for recovery of Rupees 4096-9-9 on the foot of a promissory note dated 29th December 1930 which, was alleged to have been executed by the defendant in favour of the plaintiff who is his brother in renewal of an earlier promissory note dated 27th December 1929. The defendant admitted execution but pleaded that the plaintiff had no cause of action Inasmuch as the money had been advanced not by the plaintiff, but by the mother of the parties Mt. Chhabraji in the plaintiff's name and that 21/2 years before the suit Mt. Chhabraji had remitted the debt and had handed over the promissory note and the receipt to the defendant, but it had somehow or other fallen into the possession of the plaintiff. It was also pleaded that the suit was barred by limitation. The trial Court found that the plaintiff was the real owner of the promissory note in suit and that there was no remission of the debt as alleged by the defendant. The plea of limitation was based upon a payment of Rs. 25 which was endorsed on the promissory note under date 2nd May 1931. The trial Court held that this sum of money had not been paid towards interest as such and therefore limitation was not saved under Section 20, Limitation Act, but the learned Munsif found that the endorsement amounted to an acknowledgment of payment by the defendant within the meaning of Section 19 of the Act and that the suit was therefore within time. The suit was accordingly decreed. The lower Appellate Court disagreed with the finding of the Munsif as regards Section 19, Limitation Act. The learned Judge held that the endorsement of 2nd May 1931 on the promissory note in suit did not amount to an acknowledgment within the meaning of the aforesaid Section and the decree of the trial Court was accordingly set aside and the suit was dismissed.

2. The point which is taken before us by learned Counsel for the plaintiff-appellant is that the view taken by the learned Judge of the lower Appellate Court is erroneous and that the endorsement amounted to an acknowledgment under Section 19, Limitation Act. The actual words of this endorsement are as follows:

Dastkhatt Chandrabhan Prasad Kishun Tiwari babat pronote haza he mahajan ko mublig 35 rupiya diya. Tarikh 2nd May 1931, baqalam khas.

3. It is for us to determine whether these words can be interpreted as implying an acknowledgment of liability in respect of the balance due under the promissory note. We have been referred to various authorities by learned counsel, some of which have been mentioned by the learned Judge of the lower Appellate Court. The first case is that in Ram Prasad v. Binaek Shukul : AIR1933All453 decided by Niamat Ullah and Rachhpal Singh JJ. It was alleged there that limitation was saved by payment of a sum of Rs. 40 on 7th February 1918 and by subsequent payments. At page 933 Niamat Ullah J. who delivered the judgment, after dealing with Section 20, Limitation Act, observed:

It was also contended that each payment amounted to an acknowledgment of liability within the meaning of Section 19. It is said that payments were noted by the defendant on each occasion on a certain copy book which the plaintiff's peon used to take round to the debtors. This copy book was produced in the lower Courts. It has not come up with the record of the case. We declined to adjourn the case as the entries on that copy book were not relied on in either of the two Courts below as containing acknowledgments under Section 19, Limitation Act. The fact of payment which is not disputed was also relied on as acknowledgment under Section 19. Where a debtor pays a certain sum of money to his creditor, there may be an implied acknowledgment of the liability to the extent of the amount paid. It cannot however be said that the remaining liability shown by evidence aliunde should be deemed to have also been acknowledged. In this view the payment of Rs. 40 on 7th February 1918 cannot amount to an acknowledgment under Section 19, Limitation Act.

4. The next case is that in Kirpa Ram v. Balak Ram : AIR1935All47 . It is a single Judge case decided by Niamat Ullah J. who referred to and followed the decision in Ram Prasad v. Binaek Shukul : AIR1933All453 . A suit had been instituted more than three years from the date of execution of a bend, but it was contended that limitation was saved by reason of a payment of the defendant of Rs. 22 on 15th December 1931 which was said to have been endorsed on the bend in the handwriting of the defendant. The learned Judge first considered Section 20, Limitation Act, and then at p. 26 he observed:

Lastly, the learned advocate relied upon the endorsement in respect of the payment of Rs. 20 said to be in the handwriting of the defendant as acknowledgment. It is in these terms received Rs. 20 in respect of this bend'; these words do not imply any subsisting liability in respect of any debt remaining due after the payment of Rs. 20. They are consistent with Rs. 20 being the only sum due under the bend which was paid in final satisfaction thereof. In my opinion the endorsement is not such acknowledgment as would save limitation.

5. The question as regards the proper interpretation of Section 20, Limitation Act, came before a Full Bench of five Judges in Udeypal Singh v. Lakshmi Chand : AIR1935All946 . The Court also considered the question of acknowledgment and at p. 1034 Sulaiman C.J. observed:

It is equally obvious that where a payment is made without any specification and the debtor does not signify whether he is making the payment of interest as such or of part payment of the principal, there is really no admission on his part that any further sum is still due from him, and there is therefore no acknowledgment of liability on his part He merely pays a lump sum of money and by no means admits that the debt is not fully discharged. There is an admission no doubt that there was a liability on him to the extent of the amount so paid, but there is no acknowledgment of any further liability.

6. At page 1041 Thorn J. (as he then was) said:

It was contended by the applicant that the endorsement of the payment on the bend by the debtor amounted to an acknowledgment of liability within the meaning of Section 19, Limitation Act. For the reasons given by the learned Chief Justice, I agree, that this contention is unsound.

7. Bajpai J. similarly said:

I agree with the learned Chief Justice, for the-reasons given by him, that the writing on the back of the bend does not operate as an acknowledgment under Section 19, Limitation Act.

8. Niamat Ullah J. by necessary implication took the same view, adhering to the previous decisions in Ram Prasad v. Binaek Shukul : AIR1933All453 and Kirpa Ram v. Balak Ram : AIR1935All47 . In the Full Bench case there was an endorsement on the bend in, suit to the effect that Rs. 50 had been deposited on 17th August 1930. In an un-reported case of this Court, Civil Revision No. 26 of 1935, there was an endorsement, under the defendants' signature on the bend, in these terms: Is dastawez men 10 rupiya wasul dekar dastawez par likh dihal Ki joon par ham awe.' Sulaiman C.J. translated these words as follows: 'Having paid Rs. 10 towards the amount due on the document I have made this endorsement.' He thus interpreted the words 'dastawez men' as 'towards payment' or 'in part payment.' He says:

In my opinion the words used in this case clearly contained an acknowledgment that Rs. 1O were being paid as part payment of the amount due on the bend, which necessarily implied that something more remained over. This would therefore be an acknowledgment in writing of the liability under this bend.

9. In the case before us, as we have already shown, the words used are 'babat pronote haza ke' and not 'pronote men.' We are next referred by learned Counsel for the plaintiff-appellant to a Madras case in Venkatakrishniah v. Subbarayadu (1917) 4 A.I.R. Mad. 805. In that case there was an endorsement signed by the debtor in the following words 'Rs. 378 - 13th July 1905. Rupees 378 only have been paid, towards this document by Subbarayudu.' It was held by a Bench of the Madras High Court that this endorsement amounted to an acknowledgment of liability within the meaning of Section 19, Limitation Act. It will be observed that in that case the words used were 'towards this document.' Finally we are referred to a decision of the Bombay High Court in Genesh Narhar v. Dattraya Pandurang (1923) 10 A.I.R. Bom. 239. In that case the plaintiff sued upon a promissory note for Rs. 1500 dated 12th November 1913. Payments were made of Rs. 90 on 2nd February 1915, Rs. 200 on 11th January 1916 and Rs. 381-12-0 on 21st April 1916. On 6th November 1916 the defendant endorsed the three previous payments on the promissory note and added them up and signed the total; and it was hold by a Bench that this was an endorsement whereby the defendant admitted his liability to pay the balance. The learned Judges relied upon a previous decision and we observe that in that earlier case the words used were 'towards the amount due on the bend.' It also appears that the learned Judges in the case of Genesh Narhar v. Dattraya Pandurang (1923) 10 A.I.R. Bom. 239 were guided, to some extent at least, by the Common law of England. Learned Counsel for the plaintiff-appellant pleads that the endorsement on the promissory note in suit amounts to a clear acknowledgment of liability for the balance and that limitation is therefore saved under Section 19, Limitation Act. He also contends that we should take into consideration the fact that in his written statement the defendant admitted execution of this promissory note and that he has not anywhere pleaded payment of any other sum of money in satisfaction thereof - in as much as in his written statement he pleaded that the debt had been remitted by his mother who was the real owner of the promissory note. Now the literal translation of the endorsement is as follows:

Signature of Chandrabhan Prasad Kishen Tewuri, Rs. 25 paid to the mahajan in respect to (or relating to) this promissory note. Date 2nd May 1931 by his own pen.

10. It seems to us that the question whether any particular endorsement amounts to an acknowledgment or not within the meaning of Section 19 of the Act must depend on the actual words which have been employed; we cannot go beyond these words for the purposes of this Section. The Section requires that in order that limitation may be saved there must be an acknowledgment of liability in writing and signed by the party against whom the right is claimed. The endorsement itself must contain the acknowledgment, either express or implied. The endorsement on the promissory note in suit cannot mean that Rs. 25 were being paid in respect to or relating to the promissory note in suit; it neither imports nor implies any acknowledgment whatsoever in respect to anything beyond the amount which was then being paid. The plaintiff will only be entitled to an extension of time if he can show that there has been an acknowledgment in writing by the defendant of his liability and we think it is obvious in the present case that the endorsement carries with it no such acknowledgment. We do not think that the pleadings or any extrinsic circumstances can be looked at, as requested by learned Counsel for the plaintiff-appellant, in order to explain the endorsement and in order to ascertain whether the defendant can be held to have acknowledged anything more than the endorsement itself purported to acknowledge. Learned counsel's request really means that we should ascertain that the liability existed and so infer that the defendant acknowledged it by his endorsement. For reasons already given we are of opinion that the determination of the question depends on the inference to be drawn from the endorsement itself. In the result we dismiss this appeal with costs.


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