Skip to content


Kittunni Gupthan and anr. Vs. M.C. Kuttikirshna Gupthan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1424 of 1962
Judge
Reported inAIR1964Ker175
ActsLimitation Act, 1908 - Sections 19; Evidence Act, 1872 - Sections 114
AppellantKittunni Gupthan and anr.
RespondentM.C. Kuttikirshna Gupthan
Appellant Advocate A.S. Krishna Iyer, Adv.
Respondent Advocate K.P. Ramunni Menon, Adv.
DispositionAppeal dismissed
Cases ReferredHamida Bi v. Abdul Gaffar
Excerpt:
- - 356-10-6 towards principal were paid on 21-11-1956i and that these payments were endorsed in the handwriting of the 1st defendants on the note. a 3 it is seen that although the notice was issued to the 1st defendant, it was intended as a notice to the 2nd defendant as well......the plaintiff relied on an acknowledgment of the plaint claim contained in ext. a4 the reply notice issued by the defendantsthrough their advocate mr. k. c. m. kurup. the point for decision is only whether this reply notice contained an acknowledgment of a subsisting liability of the defendants under the note and whether that acknowledgment is binding on the defendants. the plaintiff had issued a notice ext. a 3 in the case claiming the amounts due under the two pronotes. it was argued on the basis of the language in ext. a 4 that the acknowledgment, if any, contained there-in can only relate to the liability under the note executed by the 1st defendant and which is the subject matter of the suit in o. s. 115/60, and that there is no reference at all in the reply notice to the note.....
Judgment:

K.K. Mathew, J.

1. The defendants are the appellants. This appeal, is against a decree in a suit for recovery of money due on the basis of a pronote executed by the defen-dants in favour of the plaintiff. He also instituted another suit in O. S. 115/1960 of the Ottapalam Munsiff's court an the basts of another note executed by the 1st defendant, in this appeal I am only concerned with O. S. 114/1960 The facts of the case are: Defendants 1 and 2 executed a note in favour of the plaintiff for Rs. 1,300/- on 24-4-1956, it was alleged that an amount of Rs. 200/- was paid on 20-6-1956, that interest up to the date and Rs. 356-10-6 towards principal were paid on 21-11-1956i and that these payments were endorsed in the handwriting of the 1st defendants on the note. The claim in the sun was for the balance of the principal and interest due. The plaintiff had issued a notice on 10-1-1959 claiming the amounts due under the two notes and the defendants had sent a reply admitting their liability but contending that they were entitled to the benefit of Act 31 of 1958. The suit was resisted mainly on the ground that it was barred by limitation, that all the payments have not been credited In the plaint and that the acknowledgment relied on in the plaint was not valid and binding on the defendants.

2. The trial court dismissed the suit finding that the suit was barred by limitation, but on appeal by the plaintiff, the lower appellate court, reversed the decree and hence this appeal.

3. The only point for decision in this appeal is whe-ther the suit was barred by limitation. But counsel for the respondent raised a preliminary objection to the maintainability of this appeal on the ground that the suit is of a small cause nature of the value not exceeding Rs. 1,000/- and that no second appeal would lie under Section 102 of the Code of Civil pocedure. In the view I am taking or the merits of this appeal it is unnecessary to decide the preliminary point.

4. The question for consideration, as I have said, is whether the suit was barred by limitation. The plaintiff relied on an acknowledgment of the plaint claim contained in Ext. A4 the reply notice issued by the defendantsthrough their advocate Mr. K. C. M. Kurup. The point for decision is only whether this reply notice contained an acknowledgment of a subsisting liability of the defendants under the note and whether that acknowledgment is binding on the defendants. The plaintiff had issued a notice Ext. A 3 in the case claiming the amounts due under the two pronotes. It was argued on the basis of the language in Ext. A 4 that the acknowledgment, if any, contained there-in can only relate to the liability under the note executed by the 1st defendant and which is the subject matter of the suit in O. S. 115/60, and that there is no reference at all in the reply notice to the note which is the subject matter of the suit in this case. Ext. A 4, no doubt, refers only to a pronote. But from the context and the subsequent portions in that notice it is clear that the Advocate was referring to the amounts due under the two notes, one executed by defendants 1 and 2 and the other by the 1st defendant alone. It is clear from Ext. a 4 that the advocate was issuing the notice on behalf of defendants 1 and 2. From Ext. A 3 it is seen that although the notice was issued to the 1st defendant, It was intended as a notice to the 2nd defendant as well. Although Ext. A 3 was issued to the 1st defendant the statement therein that the 1st defendant should show the same to the 2nd defendant would indicate that the notice was intended for the 2nd defendant also. The further fact that both the detenoants joined together and issued Ext. A-4 through their advocate strengthens the conclusion that the plaintiff demanded tne amounts due under both notes and that the reply Ext. A-4 was also for the claims under both the notes. Therefore it is clear that the acknowledgement, in Ext. A-4 is also of the liability under the note which is the subject-matter of the suit in this case. Then the further question is whether txt. A 4 is binding on defendants 1 and 2. It was sub-mitted by counsel for the appellants that Mr. K. C. M. Kurup, the advocate, was not the duly authorised agent of the defendants for making an acknowledgment under Section 21 of the Limitation Act. His argument was that the advocate had no authority to make the acknowledgment in Ext. A-4 as there is nothing to show that he had me power to do so. I confess that I am unable to appreciate that argument. There was no case for the defendants tnat the issue of the notice Ext. A-4, was an unauthorised act on the part of their advocate. in the written statement there was no plea that Mr. Kurup had no authority to send Ext. A-4 notice acknowledging the liability, Therefore it has to be presumed that Mr. Kurup issued the notice on the basis of the instruction given by defendants 1 and 2. If that be so, I am unable to understand why it is not an acknowledgment signed by a duly authorised agent. Explanation 2 to Section 19 of the Indian Limitation Act reads as follows:

'For the purpose of this section 'signed' means signed either personally or by an agent duly authorised in this behalf.'

It was held in Hamida Bi v. Abdul Gaffar, AIR 1933 Rang 147 that,

'When a member of the bar writes a letter purporting to be instructed by a client, there is a presumption, until the contrary is proved that the letter is written under instructions.'

In Rustomjl on Limitation, 6th Edn., page 229 It is stated:

'Acknowledgment in a Pleader's letter may suffice to save limitation against the client, ;t being assumed (until the contrary Is proved) that the letter was written under instructions.'

the argument of the appellant that the notice does not contain an acknowledgment of a subsisting liability has no-substance in it as it is clear from Ext. A 4 that the defen-dants were prepared to pay the balance amount due under the notes according to the provisions of Act 31 of 1958.

5. The only other argument was that an amount of Rs. 166/- and odd was claimed by the defendants in the reply notice to have been paid, and therefore the acknowledg-ment of a subsisting liability, can relate only to the balance of the amount. But it does not appear from Ext. A 4 that the alleged payment of Rs. 166/- and odd was towards the claim under this note. Therefore I am unable to accept the argument of counsel that the claim to that extent was barred by limitation.

6. In the result, the decree of the lower appellate court is confirmed and this Appeal dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //