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Raghubar Dayal Vs. Banwari Lal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1933All352
AppellantRaghubar Dayal
RespondentBanwari Lal
Cases ReferredLallu Mal v. Reoti Ram A.I.R.
Excerpt:
- .....plea of limitation had been met by the proof of an acknowledgment of indebtedness contained in a written statement filed by the defendant in a suit on the other promissory note. the first point taken in argument before me was that the present suit was barred by the provisions of clause (2), order 2, rule 2, civil p.c. the argument is to the effect that the plaintiff might' have sued in the other suit for the consolidated sum due on account of both promissory notes, and that as he had then only sued on one, he was not now entitled to sue on the other. it will be observed that this argument depends on proof of the alleged compromise of 8th november 1929, and if it be held that there was no such compromise the argument based on order 2, rule 2 has no meaning, because the position then is.....
Judgment:
ORDER

Kendall, J.

1. This is an application for the revision of an order of the Judge of the Small Cause Court of Pilibhit, decreeing the plaintiff's claim which was based on a promissory note. The defence was that the defendant had executed on different dates two promissory notes in the plaintiff's favour out of which was the one' in suit, but that there had been an agreement between the parties on 8th November 1929 by which the plaintiff agreed to accept Rs. 700 as the amount due' to him on both the promissory notes, and of this amount the defendant claimed to have paid all but Rs. 150. Apart from this the defence was also raised that the claim on the promissory note in suit was barred by limitation. The finding of the Court below amounts to this, that there was no compromise between the parties on 8th November 1929, and that the plea of limitation had been met by the proof of an acknowledgment of indebtedness contained in a written statement filed by the defendant in a suit on the other promissory note. The first point taken in argument before me was that the present suit was barred by the provisions of Clause (2), Order 2, Rule 2, Civil P.C. The argument is to the effect that the plaintiff might' have sued in the other suit for the consolidated sum due on account of both promissory notes, and that as he had then only sued on one, he was not now entitled to sue on the other. It will be observed that this argument depends on proof of the alleged compromise of 8th November 1929, and if it be held that there was no such compromise the argument based on Order 2, Rule 2 has no meaning, because the position then is that the plaintiff is the owner of the two promissory notes, each of which may form the basis of a separate action.

2. As regards this alleged compromise in revision of the original contract, the Court has not said in so many words that it has not been proved in the present suit, but it is clear enough that that is the meaning of the whole of the judgment. The Judge has remarked:

The alleged contract having been hold not to have been established, the plaintiff can fall back on the original promissory note.

3. The documentary evidence in favour of the existence of the contract is said to have been two receipts, and the history of these receipts is given at the end of the judgment of the trial Court. The originals were filed in Court, and the Court believing them to have been forged directed the prosecution of the defendant. The defendant however succeeded in obtaining the originals back and filed certified copies in their place, and consequently it is a certified copy which is on the file of the present suit. Now, this certified copy on which the defendant relies to prove alleged contract is obviously not a copy of a deed of agreement or a bond, but it is merely a copy of a receipt executed on a one-anna stamp, and this receipt has been held by the Court to be a forgery. Consequently it cannot be held that the Court below was wrong in holding that the contract had not been proved.

4. As regards the question of limitation, I am asked to hold that the Court was wrong in deciding that the written statement amounts to an acknowledgment of liability that would save limitation. The written statement on which the Court has relied is briefly to this effect:

Whatever is due to the plaintiff from the defendant on the two documents, the parties have agreed on 8th November 1929 that the sum is Rs. 700, of which Rs. 450 were paid to the plaintiff on the date of the execution of the agreement and Rs. 250 remained due, of which Rs. 100 were paid on 1st January 1930 through a cousin of the defendant and consequently only Rs. 150 remain due.

5. Now if the finding of the Court that there was no compromise between the parties, and no fresh agreement, on 8th November 1929, is correct, the facts alleged in this written statement are untrue, but nevertheless the statement does contain a clear acknowledgment that a sum of money was due to the plaintiff from the defendant on two documents, and the Court below has held that this amounts to an acknowledgment -of the debt that will save limitation. Mr. Sinha has asked me to hold that the document is not sufficiently definite to amount to an acknowledgment, and he has referred to the case ofLallu Mal v. Reoti Ram A.I.R. 1924 All 70; but in that case the1 document that was relied on as an acknowledgment was merely an admission of the execution of a promissory note, and was not an acknowledgment at all. Explanation 1 to Section 19, Limitation Act. shows that for the purposes of that section an acknowledgment is sufficient though it omits to specify the exact nature of the property or right, and I cannot conclude that the learned Judge was wrong in accepting the written statement as a sufficient acknowledgment of the debt in this case. The result is that the application fails and is dismissed with costs.


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