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

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All335; 59Ind.Cas.941
AppellantA. Curlender and ors.
RespondentAbdul Hamid and anr.
Cases ReferredSakharam Manchand v. Keval Padamsi
Excerpt:
limitation act (iix of 1908), section 19 - acknowledgment--letter enclosing account and showing how account settled, whether acknowledgment of right. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - 3. we have examined the letter sent by the defendants to the plaintiff and the memorandum of account enclosed therein, and we find that the account clearly shows that on the 17th of january 1913, rs. but none-the-less the account clearly shows that on that particular date, namely, 17th january 1913, rs. from another point of view also this suit is clearly within time......the plaintiff from the defendant' firm. the defendants had also dealings in bone 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.....
Judgment:

1. The circumstances under which the present appeal has arisen are as follows: The plaintiff is the proprietor of a firm of bone dealers in Benares called Abdul Hamid and Sons. The defendants carry on a business in boner which goes by the name of Bengal Bone Mills in Calcutta. It appears that there had been dealings between the parties for some years; and in January 1913, according to the plaintiff, Rs. 1,654 were due to the plaintiff from the defendant' firm. The defendants had also dealings in bone 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 1916. 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 came 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 same to the conclusion that the items claimed are up to the 13th 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 IX of 1908, the suit is barred by the three years' limitation.'

2. It further held that the payment of Rs. 156-8-6 did not amount to an acknowledgment under Section 19 of Act 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 Bone Company, Limited, were separate and 'the defendants had no power to dictate to Abdul Hamid and Sons and tell them that they were the same 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 and in fact could not be so pressed having regard 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 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 barred by limitation.

3. We have examined the letter sent by the defendants to the plaintiff and 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. 156-8-6 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 age liable to pay any further amount to the plaintiff; but none-the-less the account clearly shows that on that particular date, namely, 17th 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 war, 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 20 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 it, in other words, the some 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 entry should contain the words, 'part payment of the principal.' 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 cent along with it would show. This view of ours is supported by the case of Ambrose Summers, In the matter of 23 C. 592 at p. 598 : 12 Ind. Dec. (N.S.) 394 with which we are in full accord. See also the case of Sakharam Manchand v. Keval Padamsi 56 Ind. Cas. 429 : 44 B. 392 : 22 Bom. L.R. 313. 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 including in this Court fees on the higher scale. 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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