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Gobind Das and ors. Vs. Sabju Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All268
AppellantGobind Das and ors.
RespondentSabju Das
Excerpt:
.....made in writing and signed by the person to be charged therewith to pay a barred debt is a good consideration, but there must be a distinct promise and not a mere acknowledgment......recover the amount due under this document. the defendant pleaded that the document sued on was a mere acknowledgment and was not a promise to pay a time-barred debt, and that the suit was not maintainable on the mere acknowledgment.3. the court of first instance came to the conclusion, on a consideration of the language of the document which is the basis of the suit, that it was not a mere acknowledgment of a debt, but that it contained a promise to pay the debt without interest. on appeal, the learned district judge held that, there being no clearly expressed promise in the sarkhat, the plaintiffs were not entitled to succeed, and dismissed the suit. the plaintiffs come here in second appeal.4. the first plea is that the sarkhat in question contains an express promise to pay the debt......
Judgment:

Aikman and Karamat Husein, JJ.

1. The plaintiffs, who are appellants here, come into Court on the allegation that the defendant respondent, on the 2nd November 1899, executed a document, described as a sarkhat, in favour of the plaintiffs' firm in respect of an old debt of Rs. 995-10-0 due by him to the firm, and that in this document he promised to pay the aforesaid sum without interest.

2. The plaint sets forth that again on the 24th of October 1902, a similar document was executed by the defendant promising to pay the aforesaid debt without interest. The plaintiff sued to recover the amount due under this document. The defendant pleaded that the document sued on was a mere acknowledgment and was not a promise to pay a time-barred debt, and that the suit was not maintainable on the mere acknowledgment.

3. The Court of first instance came to the conclusion, on a consideration of the language of the document which is the basis of the suit, that it was not a mere acknowledgment of a debt, but that it contained a promise to pay the debt without interest. On appeal, the learned District Judge held that, there being no clearly expressed promise in the sarkhat, the plaintiffs were not entitled to succeed, and dismissed the suit. The plaintiffs come here in second appeal.

4. The first plea is that the sarkhat in question contains an express promise to pay the debt. We have carefully considered the language of the document, and we cannot find in it any promise to pay. The document no doubt states that up to a certain date so much is due without interest, and it refers to the deposit of the title deeds of a house in lieu of the debt (badlemen).

5. The next plea in the memorandum of appeal is that so long as the intention to pay a time-barred debt is clearly deducible from the language of a document, the creditor can maintain a suit, and it is not necessary that it should contain an express promise to pay. We cannot accept this plea. It is probable that when the defendant executed the document he fully intended to pay the debt due from him, but a suit cannot be based upon an unexpressed intention.

6. The learned advocate for the appellants relied strongly upon an expression in the judgment of their Lordships of the Privy Council in Maniram Seth v. Seth Rupchand (1906) I.L.R. 33 Calc. 1047, at p. 1058 where their Lordships say: 'An unconditional acknowledgment has always been held to imply a promise to pay because that is the natural inference, if nothing is said to the contrary. It is what every honest man would mean to do.'

7. If we were to give to this passage the wide meaning contended for and hold that whenever there is a clear acknowledgment of a debt, whether time-barred or not, that is equivalent to a promise upon which a suit may be maintained, the result would be that the effect of the opening words of Section 19 would be nullified. That section renders it necessary that the acknowledgment referred to therein must be made before the expiration of the period prescribed for the suit. It is evident that in the case cited their Lordships had no intention of in any way departing from the clear meaning of the language of Section 19. In the case before them, the acknowledgment was made before the statutory period had run out and their Lordships say: 'Thus one requisite of Section 19 is complied with.' Under Section 25, Sub-section 3 of the Indian Contract Act, a promise made in writing and signed by the person to be charged therewith to pay a barred debt is a good consideration, but there must be a distinct promise and not a mere acknowledgment.

8. In our opinion, the decision of the Court below is right. We dismiss the appeal with costs.


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