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Abdul Hamid and ors. Vs. A. Curlender and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in(1921)ILR43All216
AppellantAbdul Hamid and ors.
RespondentA. Curlender and ors.
Excerpt:
act ix of 1908 (indian limitation act), section 19 and 20 - acknowledgment of liability--part payment of principal. - - 4. we have examined the letter sent by the defendants to the plaintiff land the memorandum of account enclosed therein, and we find that the account clearly shows that on the 17th of january, 1913, rs. it is not disputed that the letter and the accounts were signed by the defendants and sent to the plaintiff, it is true that the defendants do not in express terms admit that they are liable to pay any further amount to the plaintiff, but nonetheless the account clearly shows that on that particular date, namely, the 17th of january, 1913, rs. from another point of view also this suit is clearly -within time......the plaintiff from the defendants' firm. the defenlants had also dealings in bones with the muslim bone company, limited, of benares. the plaintiff's father was the manager of this company and, after his death, the plaintiff was elected the manager of the company. the plaintiff's allegation is that his firm, abdul hamid and sons, had nothing whatever to do with the muslim bone company, limited, yet the defendants debited the plaintiff' with a sum of rs. 1,497-7-6 alleged to have been due to the defendants from the aforesaid company and, deducting the amount from rs. 1,654, due to the plaintiff, sent him rs. 156-8-6 in payment of his claim on the 17th of january, 1913. the defendants had no justification for doing so and hence the plaintiff's claim for rs. 1,497-7-6, with interest by way.....
Judgment:

Piggott and Gokul Prasad, JJ.

1. The circumstances under which the present appeal has arisen are as follows:

2. The plaintiff is the proprietor of a firm of bone dealers in Benares, called Abdul Hamid and Sons. The defendants Garry on a business in bones which goes by the name of 'The Bengal Bone Mills' in Calcutta. It appears that there hurl been dealings between the parties for some years, and in January, 1913, according to the plaintiff, his 1,654 were due to the plaintiff from the defendants' firm. The defenlants had also dealings in bones with the Muslim Bone Company, Limited, of Benares. The plaintiff's father was the manager of this company and, after his death, the plaintiff was elected the manager of the company. The plaintiff's allegation is that his firm, Abdul Hamid and Sons, had nothing whatever to do with the Muslim Bone Company, Limited, yet the defendants debited the plaintiff' with a sum of Rs. 1,497-7-6 alleged to have been due to the defendants from the aforesaid company and, deducting the amount from Rs. 1,654, due to the plaintiff, sent him Rs. 156-8-6 in payment of his claim on the 17th of January, 1913. The defendants had no justification for doing so and hence the plaintiff's claim for Rs. 1,497-7-6, with interest by way of damages. The present suit was instituted on the 14th of January, 1016. The only pleas in defence with which we are concerned in this appeal are (1), that the plaintiff was only an agent of the Muslim Bone Company and supplied their goods to the appellants and therefore nothing was due to him and (2), that the suit was barred by limitation. The first court came to the conclusion that the bones were really sent by the plaintiff as the manager of the Muslim Bone Company and not as a representative of a distinct firm known by the name of Abdul Hamid and Sons, and consequently the defendants very rightly debited the plaintiff with the amount due to them from the company. On the second plea it came to the conclusion that the items claimed are up to the 13th of January, 1913, that, 'no payment had been made by the defendants acknowledging their liability to the plaintiff within the period of three years under Section 19 of Act No. IX of 1908, the suit is barred by the three years' limitation.

3. It further held that the payment of Rs. 156-8-6 did not amount to an acknowledgment under Section 19 of Act No. IX of 1908 and therefore the suit was barred by time. It accordingly dismissed the suit. On appeal by the plaintiff the learned Judge of the lower appellate court came to the conclusion that the two firms Abdul Hamid and Sons and the Muslim Bene Company, Limited, were separate and 'the defendants had no power to dictate to Abdul Hamid and Sons and tell them that they were the fame thing as Muslim Bone Company, Limited.' He does not seem to have considered the question of limitation of any importance. In the result he decreed the plaintiff's claim, The defendants come here in second appeal. The question of agency was not seriously pressed an 1 in fact could not be so pressed having regular to the distinct finding of the lower appellate court mentioned above. The point of limitation, however, has been strenuously argued by the learned Counsel and the learned vakil, respectively, who appeared on behalf of the parties. It was contended that the letter of the 17th of January, 1913, forwarding Rs. 156-8-6 to the plaintiff, in full satisfaction of the amount due to them did not amount either to an acknowledgment of a right under Section 19 of the Limitation Act, nor did it amount to a part payment of the principal within the meaning of Section 20 of the said Act and could not therefore operate to give a fresh start to the period of limitation which had, at the latest, commenced to run on the 13th of January, 1913, when the last item was received. If this contention of the defendants is correct, it is quite clear that the present suit is barrel by limitation.

4. We have examined the letter sent by the defendants to the plaintiff land the memorandum of account enclosed therein, and we find that the account clearly shows that on the 17th of January, 1913, Rs. 1,654 were as a matter of fact due to the plaintiff on that date, and the defendants squared the account on that date by debiting the plaintiff's account with the sum of Rs. 1,497-7-6 due to the defendants from the Muslim Bone Company, Limited, and remitting the balance of Rs. 156-8-0 to the defendants. It is not disputed that the letter and the accounts were signed by the defendants and sent to the plaintiff, It is true that the defendants do not in express terms admit that they are liable to pay any further amount to the plaintiff, but nonetheless the account clearly shows that on that particular date, namely, the 17th of January, 1913, Rs. 1,654 were due to the plaintiff. The mere fact that the defendants in the same account say that they have on that day appropriated a part of the amount due towards satisfaction of a claim due to them from a third party and have remitted the balance to the plaintiff, does not alter the fact that on that day Rs. 1,654 were as a matter of fact due to the plaintiff before the alleged appropriation was made. This is in our opinion an acknowledgment of right within the meaning of Section 19 of the Limitation Act. From another point of view also this suit is clearly -within time. Rs. 156-8-6 were sent to the plaintiff by the defendants on that day under the covering letter mentioned above. No interest was payable to the plaintiff from the defendants on that day, so that no question of any payment of interest arises in this connection. The payment of Rs. 156-8-6 aforesaid could be and was as a matter of fact in payment of the principal sum due. It has, however, been contended on behalf of the defendants appellants that the endorsement of part payment of principal must appear in the handwriting of the debtor under section in of the Limitation Act, that is to say, that the writing must show that the payment is made in part payment of the principal, or to put it in other words, the same conditions attach to the part payment of principal which have been expressly laid down in case of payment of interest. To put it in short, the words 'as such' should be read into the latter portion of Sub-section (1) of the section. In our opinion this contention is not sound. What the section provides is 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.' The law does not require that the words 'part payment of the principal' should appear in the entry. It is 'the fact of the payment which should appear in the handwriting of the person making the same. This is so in the present case, as a reference to the letter, dated the 17th of January, 1913, and the account sent along with it would show. This view of ours is supported by the case of In the matter of-Ambrose Summers (1896) I.L.R. 23 Calc. 592 (598) with which we are in full accord. See also the case of Sakharam Manchand v. Keval Padamsi (1919) I.L.R. 44 Bom. 392. We are, therefore, of opinion that from no point of view the present suit is barred by time. The result is that the appeal fails and is dismissed with costs. Nothing has been said to us on any of the remaining grounds taken in appeal nor have the respondents addressed any arguments to us in support of their cross objection. We, therefore, dismiss it with costs.


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