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Jyoti Prasad Vs. Ram Chandra - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 391 of 1960
Judge
Reported inAIR1963All579
ActsLimitation Act, 1908 - Sections 19
AppellantJyoti Prasad
RespondentRam Chandra
Appellant AdvocateSatish Chandra, Adv.
Respondent AdvocateShanti Bhushan, Adv.
DispositionRevision allowed
Excerpt:
limitation - acknowledgement - section 19 of limitation act, 1908 - endorsement of back of pronote - acknowledgement towards payment of interest - amounts to an admission that some principal was also due - held, fresh start of limitation. - - the lower appellate court endorsed the view of the trial court......'as towards payment or in part of the debt'and therefore were considered to be an acknowledgment within the meaning of section 19 of the limitationact. the instant case is much stronger than theaforesaid unreported decision as here there was aspecific mention that the payment of rs. 10/- wastowards interest. even if no interest in fact waspaid, the endorsement on the back of the pronotebeing in the handwriting of the debtor and signedby him would, in my judgment amount to anacknowledgment of liability, so as to give a freshstarting point of limitation, and i hold accordingly. 10. the revision is accordingly allowed, theorders of the lower courts are directed to be setaside and the suit is decreed with costs throughout.
Judgment:

S.C. Manchanda, J.

1. This is a revision against the order of the Civil Judge Bijnor dated 18-1-1962, holding that the suit filed by the plaintiff applicant was barred by the law of limitation.

2. The material facts briefly are that the plaintiff had filed a suit for the recovery of Rs. 812/1/6 on the basis of the pronote, admittedly, executed by the opposite party on the 7th of November 1948, The principal amount was Rs. 500/- carrying a rate of interest of 1 1/4% per month. On the back of the pronote there were two endorsements of payment admittedly made by the respondent himself. The first endorsement was about a payment of Rs. 225/- on 12-10-1951 and the second in respect of a payment of Rs. 10/- towards interest on 12-9-1954. The latter endorsement, the effect of which is in dispute, was entirely in the handwriting of the opposite party on the back of the pronote itself. The plaintiff claimed that this latter endorsement amounted to an acknowledgment within the meaning of Sections 19 and 20 of the Indian Limitation Act, hereinafter referred to as the Act. The opposite party on the other hand claimed that the principal amount had been paid off and in any case the sum of Rs. 10/- acknowledged by the endorsement dated 12-9-1954 was not in fact paid.

3. Two main issues were struck:

(1) Whether the amount of pronote in suit had been paid up in full?

(2) Whether the claim is barred by time.

4. On the first issue it was held that there was no evidence on the record to show that the defendant had paid the amount in full. This issue was therefore decided in the negative and against the defendant opposite party. On the question of limitation, however, it was held that the endorsement dated 12-9-1954, did not amount to an acknowledgment within the meaning of Section 19 of the Indian Limitation Act. The suit was accordingly dismissed. The Lower appellate Court endorsed the view of the trial Court.

5. The short question which falls for consideration is whether the lower appellate Court had misdirected itself in construing the endorsement dated 12-9-1954, as not amounting to an acknowledgment in order to determine the question it is necessary to set out the endorsement which was made on the back of the pronote itself. It reads as follows:

'Aj batarikh 12-9-1954 Iswi ko mublig 10/- babat Sub jama kiye gaye'.

It is signed by the defendant and the entire endorsement has been found to be in the handwriting of the defendant. The lower appellate Court has found that Rs. 10/- in fact was not paid but that the endorsement was in the handwriting of the debtor opposite party and was signed by him. The payment as such not having been proved the question will obviously not fall to be considered in the light of the provisions of Section 20 of the Indian Limitation Act but only Under Section 19.

6. There cannot be any doubt in view of the aforesaid endorsement that the acknowledgment or demand was towards the payment of interest. Whenever it is acknowledged that interest is being paid, whether in part or in whole, it would impliedly amount to an admission that some principal was also due as set out in the pronote itself on the back of which the endorsement was made.

7. Reliance was placed by Mr. Satish Chandralearned counsel for the petitioner on the Full Benchdecision of this Court in the case of Udeypal Singhv. Lakshmi Chand : AIR1935All946 and in particular on the observations of Sulaiman, C. J. whereit was observed:

'Now if one examines the implications of these two provisions it becomes at once obvious that they in a way implied an acknowledgment of a liability to pay a further amount that may be due. When Interest is paid as interest that is professedly an interest and not towards principal. Then there is an indirect admission that there is some principal sum due on which the interest has accrued due and that principal is not being paid, but only interest thereon is being paid.'

In other words it was laid down that where interest is paid as interest it would give a fresh starting point for limitation, as it would amount to an acknowledgment.

8. In the present case, there was undoubtedly an endorsement on the back of the pronote to the effect that some interest was being paid, though in fact no interest was paid, nevertheless in view of the observations of Sulaiman C. J. such an endorsement would amount to an indirect admission that the principal sum on which the interest had accrued was still due and as such there is no reason why it should not be treated as an acknowledgment within the meaning of Section 19 of the Indian Limitation Act.

9. It is ho doubt true, as contended by Mr. Shanti Bhushan for the opposite party that these observations of Sulaiman C. J. were merely obiter as the Full Bench was not concerned with the provisions of Section 19 of the Indian Limitation Act but only with Section 20. But even the obiter dicta of a Full Bench are entitled to great weight. That this is so, is clear from the fact that in another case Ishri Prasad Kishun Tewari v. Chandrabhan Prasad Kishun Tiwari : AIR1939All177 , Collister and Hunter JJ. relied upon some other obiter dicta of Sulaiman C. J. in the said case for coming to the conclusion that the particular endorsement in that case did not amount to an acknowledgment within the meaning of Section 19 of the Limitation Act. The passage relied upon by them was a continuation of the passage quoted herein above which dealt with the third category of cases as illustrated by Sulaiman C. J. That dicta was to the effect that where merely a lumpsum money is paid by the debtor and it is not signified whether the payment is made towards interest or principal it will not amount to an admission or an acknowledgment. Ishri Prasad Kishun Tewari's case : AIR1939All177 which was relied upon by Mr. Shanti Bhushan, is however distinguishable on facts as there the endorsement merely was that Rs. 25/- was being paid towards pronote, without specifying whether it was towards interest or principal. In that case, reference has been made by the learned Judges to another unreported decision in Civil Revision No. 26 of 1935 decided by Sulaiman C. J. after the judgment given by him in the said Full Bench case and where there was an endorsement in thesa words:

'Is dastavez men 10/- vasul dekar dastavezpar likh dihal ki joon par kam awe.'

These words were interpreted by Sulaiman C. J. tosignify 'as towards payment or in part of the debt'and therefore were considered to be an acknowledgment within the meaning of Section 19 of the LimitationAct. The instant case is much stronger than theaforesaid unreported decision as here there was aspecific mention that the payment of Rs. 10/- wastowards interest. Even if no interest in fact waspaid, the endorsement on the back of the pronotebeing in the handwriting of the debtor and signedby him Would, in my judgment amount to anacknowledgment of liability, so as to give a freshstarting point of limitation, and I hold accordingly.

10. The revision is accordingly allowed, theorders of the lower Courts are directed to be setaside and the suit is decreed with costs throughout.


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