1. This is a plaintiff's appeal against a judgment and decree of Mr. Sunder Lal, Commercial Sub-Judge 1st Class, Amritsar, dated 9-6-1948 dismissing the plaintiff's suit for the recovery of Rs. 5,490/11/-due on a 'bahi' account, but leaving the parties' to bear their own coats.
2. The plaintiff firm carries on business at Amritsar and the defendants at Delhi. The latter placed ah order for the supply of thirty thousand post pickets at the rate of annas -/7/- per set P. O. R. Delhi. The entire quantity was supplied and Rs. 8000/- was paid on 18-1-1943. This is really the date on which the cheque for Rs. 8000/-was cashed. The cheque was dated 16-1-1943 and was delivered to the plaintiff on 15-1-1943. The suit is for the balance of the price. The defence inter alia was that because the plaintiff's firm was not a registered firm it could not institute the suit and that the suit was barred by time. On both these points the trial Court held in favour of the defendants. The plaintiffs have come up in appeal to this Court.
3. The plaintiff brought the suit in the name and style of joint Hindu family firm known as Mangat Ram Sheo Nath through Mangat Ram its manager and karkun resident of Amritsar. In the plaint limitation was alleged to have begun from 18-1-1943, the allegation made in para. 5 was-
'This suit is within time as the cheque given is dated 18-1-1943.'
4. The defendants pleaded that the plaintiff firm was not a joint Hindu family firm but was acontractual partnership and as it had not been registered under Section 69, Partnership Act, it could not sue. Three issues were framed by the learned trial Judge-
1. Has this Court got territorial jurisdiction to try this suit?
2. Is the plaintiff firm a joint Hindu family firm and entitled to institute the suit without registration?
3. Is the suit within time?
5. The first issue is no longer in dispute. The controversy in appeal was confined to issues 2 and 3 which have been found against the plaintiff.
6. Mr. Chiranjiva Lal Aggarwal submits that it was for the defendants to prove that the plaintiffs were not a joint Hindu family firm but a contractual firm. It is the plaintiffs who have described themselves as a joint Hindu family firm. It is true that there is a presumption in favour of their being a joint family but there is no presumption in favour of their being a joint family business and if a set of persons carry on business as a firm it Is for them to show that the firm is a joint Hindu family firm.
In the present case there is no evidence at all to show that the plaintiffs are an undivided Hindu family firm. Therefore we must take it that the plaintiffs are a contractual firm, and no evidence has been submitted by the plaintiffs to show that they have been registered as a firm and in the absence of such proof the plaintiffs because of Section 69, Partnership Act were not entitled to institute the present suit. I am therefore of the opinion that the learned Judge rightly held in favour of the defendants on this point.
7. The next question raised is whether the suit is within limitation. It is admitted in the trial Court that the cheque for Rs. 8000/- was delivered to the plaintiffs on 15-1-1943 and that is the common case of the parties before us also. Mr. Chiranjiva Lal Aggarwal submits that the limitation would begin either from the date of the cheque which was 16-1-1943 or from the date of encashment of the cheque which is 18-1-1943. In' either case the suit would be within time. I am unable to agree with this contention. In -- 'Kedar Nath v. Dinabandhu Shaha', AIR 1916 Cal 580 (A), it was settled by a judgment of Sir Lawrence Jenkins, C. J. that payment by cheque is payment towards the debt due and where a cheque is delivered to a payee by way of payment and was received by him as such the cheque operates as payment subject to a condition subsequent that if upon due presentation the cheque is not paid the original debt revives. The learned Chief Justice said at p. 580:
'If I am right in the view that the cheque actually was a payment the very payment was in the handwriting of the person making the same.'
This was no doubt a case under the old Act before the amendment of 1927. In place of the words 'the fact or payment' appearing in the handwriting of the person making the payment the words now are 'an acknowledgment of the payment' appearing in the same handwriting that has got to be proved. In -- 'Jagtu Malsada Sukh Rai v. Charanji Lal Fakir Chand', AIR 1933 Lah 341 (B), it was held that the result of the amendment of the proviso to Section 20, Limitation Act, is that the creditor is now able to rely on the writing of the debtor, not only as to the fact of the payment but also as the acknowledgment of that fact.
In the present case the cheque dated 16-1-1943 and therefore post-dated was delivered on 15-1-1913and the question is whether this is an acknowledgment and if so the limitation would run from the 15th or the 16th or the 18th January. It was held in -- 'Parfulla Chandra v. Jatindra Nath', AIR 1938 Cal 538 (C) that when Part payment of a debt is made and accepted by a cheque written in the handwriting of the person liable to pay the debt it is evidence both of the fact of payment and of acknowledgment within the meaning of Section 20, Limitation Act and a fresh period of limitation should be computed from the time when the cheque is handed over to the creditor. Reliance was there placed on a judgment of the Court of Appeal -- 'Marreco v. Richardson', (1908) 2 K B 584 (D).
There a writ was issued, on 18-6-1906, to recover from the defendant the amount of certain bills of solicitor's costs which related to the years 1891 to 1896. On 10-5-1900 there was an interview between the client and the solicitor. At that interview the defendant handed over to the solicitor a cheque for 20, post-dated the 20th May and at the same time requested the solicitor not to present it for payment till June the 20th and it was paid on June the 20th. A writ was issued two days before the expiration of six years from the day when the cheque was in fact paid on presentation. A plea was raised that the debt was statute-barred. Bray J. held it to be so and an appeal was taken to the Court of Appeal. At p. 589, the President, Sir Gorell Barnes, said:
'But the cheque was given more than six years before the commencement of this action, and it is now contended on behalf of the plaintiffs that, because by arrangement between the defendant and his deceased solicitor the cheque was to be paid, and was paid, within six years of the commencement of the action, a fresh acknowledgment and promise to pay are to be inferred as having been made at the date of payment of the cheque. That is equivalent to saying that the bankers, in paying the cheque, made a fresh promise on behalf of the defendant to pay the whole debt Such a contention is Inconsistent with what I conceive to be the law on the subject, and in my opinion the only time when any promise to pay the whole debt was made or could be implied was when the parties met and the cheque was given.'
The learned President relied on two cases. The first is -- 'Gowan v. Porster', (1832) 3 B & Ad 507 (E), where Parke J. took the same view at p. 511. He said during the argument-
'The reason why a part payment takes a case out of the statute is, that it is evidence of a fresh promise. Here the promise must toe considered as having been made when the bill was given, and not when it was paid.'
Littledale J. said at p. 513-
'The promise is to be implied at the time when the bill was given.'
The second case that he relied upon is -- 'Turney v. Dodwell, (1854) 3 E & B 136 (F). The following passage from the judgment of Lord Cambell C. J. is very apposite:
'We think that, where a bill of exchange has once been so delivered in payment on account of the debt as to raise an implication of a promise to pay the balance, the Statute of Limitations is answered, as from the time of such delivery whatever afterwards takes place as to the bill.'
8. This Is a case which Is on all fours with the, one before us. The cheque was a post-dated oneand had been given a day previous. The acknowledgment or payment by cheque which is the basis of extension of time was therefore made on the day when the cheque was given. Mr. Chiranjiva Lal Aggarwal submitted that where a post-dated cheque is given, only that date can be taken to be the date of acknowledgment which the cheque itself bears because according to him no evidence can be given of the date of acknowledgment under Section 19(2), Limitation Act.
But this is subject to the provisions of the Evidence Act and there is nothing in the Evidence Act which prohibits a man showing the actual date of acknowledgment to be different from that mentioned in the document. Moreover the acknowledgment of payment by cheque falls under Section 20, Limitation Act where there is no such provision as in Section 19(2) of the Act. I am therefore of the opinion that the learned Judge has rightly held that the suit is barred by time.
9. In the result this appeal fails and is dismissed with costs.
10. I agree.