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Nageshar Misir Vs. Mt. Batuka Kunwari - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1935All605
AppellantNageshar Misir
RespondentMt. Batuka Kunwari
Excerpt:
- - 5. as we have indicated above, the plaintiff has failed to prove an agreement to pay interest. 221. costs will be in proportion, to success and failure here and in the court below......are two endorsements upon the back of the 'sarkhat' relating to payments to account made by the debtor. one endorsement is dated 17th april 1931. the payment, acknowledged by the debtor upon this date is for rs. 51. there is no indication in the endorsement as to whether this payment is towards principal or towards interest. the second endorsement is dated 14th january 1932. the amount acknowledged as paid by the debtor is rs. 128 : and in this case also there is no indication in the endorsement as to whether the payment is made towards principal or towards interest. in the year 1932, after the payment referred to in the second endorsement, nand kishore died. the present suit was filed upon 14th october 1933. the sum claimed by the plaintiff was rs. 499-2-3. it was made up as.....
Judgment:

Thom, J.

1. This application in civil revision arises out of a suit filed in the Small Cause Court, Ballia, on the basis of a 'sarkhat.' The 'sairkhat' was executed by one Nand Kishore on 26th January 1909 foir a sum of Rs. 400. There is no mention, of interest payable by the debtor in the 'sarkhat.'

2. There are two endorsements upon the back of the 'sarkhat' relating to payments to account made by the debtor. One endorsement is dated 17th April 1931. The payment, acknowledged by the debtor upon this date is for Rs. 51. There is no indication in the endorsement as to whether this payment is towards principal or towards interest. The second endorsement is dated 14th January 1932. The amount acknowledged as paid by the debtor is Rs. 128 : and in this case also there is no indication in the endorsement as to whether the payment is made towards principal or towards interest. In the year 1932, after the payment referred to in the second endorsement, Nand Kishore died. The present suit was filed upon 14th October 1933. The sum claimed by the plaintiff was Rs. 499-2-3. It was made up as follows:

Rs. a. p. Rs. a. pPrincipal ... 400 0 0Interest thereon at1-4-0 per cent permensem ... 282 8 0-------------682 8 0DeductAmount paid on 17thApril 1931 ... 51 0 0Interest on above ... 1 9 0Amount paid on 14thJanuary 1932 ... 128 0 0Interest on above ... 2 12 9 183 5 9------------- -----------The sum sned for ... 499 2 3

3. The defendant pleaded that the 'sarkhat' was not executed by Nand Kishore, and that in any case there was no consideration. Upon these issues the Court has found for the plaintiff, but has dismissed the suit on the ground that it is barred by limitation. The argument for the defendant was that under Section 20, Limitation Act, payments made by the debtor which have the effect of interrupting the running of the period of limitation must be payments by the debtor towards the redemption of the principal or towards interest 'as such.' It was contended, and this view found favour in the Court below that, inasmuch as there was no reference in the endorsement on the back of the 'sarkhat' to interest, the payments made by Nand Kishore could not be regarded as payments of interest 'as such' within the meaning of Section 20, Limitation Act. The plaintiff however admitted in evidence that he had appropriated the payments made by Nand Kishore to interest. It was argued therefore that the payment in effect, because of the action of appropriation on the part of the creditor, was a payment to wards interest; but inasmuch as there was no indication is the endorsement that the payment was made towards interest by the debtor, it was not a payment of interest 'as such' within the meaning of Section 30, and therefore the period of limitation was not interrupted.

4. We consider it unnecessary, in view of the special circumstances of this case, to decide the general question which was decided by the Court, below, namely, where a creditor appropriates payment by the debtor towards interest, the period of limitation is interrupted or not. In the present instance, as already observed, there is no mention of interest in the 'sarkhat' itself. Further, there is no reference to interest in the two endorsements which appeared upon the back of the 'sarkhat.' In these cir-j cum stances the onus lay heavily on I the plaintiff to prove that interest 'was payable under the 'sarkhat.' He has himself stated in the witness box that there was an agreement between the parties that the debtor should pay at the rate of Rs. 1-4 per cent., per mensem; but in view of the fact that there is no mention of interest either in the 'sarkhat' or in the endorsement, we consider that the plaintiff has not discharged the onus which rested upon him, and has not proved an, agreement to pay interest. In these circumstances, it follows that the payments referred to in the endorsements on the back of the 'sarkhat' must be regarded as payments of principal. Such payments towards redemption of the principal sum under Section 20, Limitation Act, interrupt the period of limitation, and a fresh period commences from the date of payment. In the present case therefore since in our judgment the payments of Rs. 51 and Rs. 128 must be regarded as payments towards the redemption ol principal, a new period of limitation began to run from 14th January 1932. The suit therefore in our judgment was within time.

5. As we have indicated above, the plaintiff has failed to prove an agreement to pay interest. He is not therefore entitled, to interest under the 'sarkhat.' He is only entitled to recover from the defendant the sum of Rupees 400, less the amounts of Rs. 51 and Rs. 128; which payments to account were made by Nand Kishore before his death, that is, he is entitled to the sum of Rs. 221 only.

6. We therefore allow this application in civil revision and grant decree in favour of the plaintiff for a sum by Rs. 221. Costs will be in proportion, to success and failure here and in the Court below. Interest will be payable by the defendant upon this sum at the rate of 6 per cent, per annum from the date of the suit till the date of realization. The decree shall be against the assets of the deceased.


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