Skip to content


Vagaram Vs. Dharamchand and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 205 of 1974
Judge
Reported in1978WLN(UC)195
AppellantVagaram
RespondentDharamchand and ors.
DispositionPetition dismissed
Cases ReferredIn Ramani Mohan Bhartacharjee v. Suriya Kumar Dhar and Anr. A.I.R.
Excerpt:
.....suggests percent'--interest can be taken as prevalent practice.;admittedly there was an existing liability in respect of which this 'khata' was executed and further in the first entry rupee one suggests that the interest stipulated was one percent 'pra' is to be construed as percent. further this interest can be taken to be monthly interest as is the prevalent practice. thus, the context and the circumstances and the manner in which ex. 1 is executed, only suggests that the defendant acknowledged his liability for a sum of rs. 632 80p. and the further agreed to pay interest thereon one percent per month.;ex. 1 constitutes an acknowledgement of liability with a stipulation to pay interest and as such it is covered under section 25(3) of the contract act.;(b) civil procedure code -..........to pay interest and as such it is covered under section 25(3) of the contract act. thus the plaintiffs' suit has been, in my opinion, rightly decreed by the first appellate court.12. so far as the second contention is concerned it has no merit. the defendant in his statement admits his signatures on the 'khata'. he has further stated that he vas paid a sum of rs. 1,700/- or 1,800/- and a sum of rs. 400/- or rs. 500/-, then stated rs. 300/- remained due on the date of signatures on ex. 1. he also admits that he received a notice from the plaintiffs in respect of the 'khata' amount but he gave no reply of the said notice. the statement of the defendant coupled with his conduct of giving no reply to the notice, if read along with the plaintiff's statement, clearly establishes this.....
Judgment:

M.C. Jain, J.

1. This revision is directed against the judgment and decree dated 6-11-1973 passed by the Additional District Judge, Sirohi, whereby the plaintiffs' suit was decreed for a sum of Rs. 632.80 p. reversing the judgment and decree of dismissal passed by the learned Munsif, Sirohi, dated 20-1-1973.

2. The facts giving rise to this revision petition, may be briefly noticed. The plaintiffs instituted a suit for the recovery of Rs. 898.25 p. on the basis of 'Khata' Ex. 1, which is reproduced below:

A * jkoy okxk lksekth fljksgh la- 2022

500 Qkxqu on 77 iku lks iz :-

65 la 2023 Qkxqu on 77 ch;kt

ekl 13 jk

565

67&80 la- 2024 Qkxqu on 77

632&80

nk- okxkjke lksekth B

3. It was averred that the defendant after making the three entries in the 'Khata' signed the same on 28-2-1968 and thereafter a sum of Rs. 264.20 p. also became due on account of interest and he added to his claim a sum of Rs. 125/- on account of notice. Thus in all he made a claim of Rs. 898.25 p.

4. The defendant denied the plaintiffs' claim and he even denied his signatures on Ex. 1 on 28-2-68 & plea of limitation was also taken It was also averred that the plaintiffs obtained his signatures in the alleged 'Khata' on 15-2-68. Plea to this effect was also taken that the alleged 'Khata' was not there are agreement nor an acknowledgement, so no cause of action arises to the plaintiffs. It was also alleged that the defendant purchased a house from the plaintiff on 21-2-1963 for a sum of Rs. 2,000/- & a sum of Rs. 1,500/- was paid towards the sale price and a balance of Rs. 500/- remained to be paid but this amount became barred by time.

5. On the pleadings of the parties the learned Munsif framed as many as four issues. It was found by the learned Munsif that a sum of Rs. 500/- was advanced in cash The consideration if Ex. 1 was an old one of 1963 and Ex. 1 amounted to an acknowledgement which cannot be made the basis of the suit and the debt of 1963 having become barred by time, the suit is not within limitation Consequently the Munsif dismissed the suit. The plaintiff then went in appeal. The learned Additional District Judge found that there is an acknowledgment of debt in Ex. 1 with a stipulation to pay interest so such a document is covered Under Section 25(3) of the Contract Act. So it was he Id that the suit is within limitation. The plea of the defendant regarding obtaining his signatures under coercion on Ex. 1, was negatived by thetrial court. Aggrieved against this judgment and decrte of the first appellate court the defendant has preferred this revision.

6. I have heard the learned Counsel for the parties and perused the record of the case.

7. The learned Counsel for the defendant-appellant contended that Ex.1 cannot be construed to be an agreement in respect of time barred debt as contemplated Under Section 25(3) of the Contract Act. There is neither an acknowledgement of any debt in Ex. 1 nor there is any agreement to make payment of any time barred debt. Even, there is no clear stipulation of interest though there is a mention of 'pra rupee one' but from these letters and figures it cannot be taken that there was nay stipulation of payment of interest. No words should be added to the present contents of Ex.1 to find the real intent and meaning and it is immaterial that the three entries are made on the debit side of the 'Khata' From the entries, having been made simply on the debit side, Ex. 1 should not be considered to be covered Under Section 25(3) of the Contract Act and as such the plaintiffs have no right to sue. The debt, which remained due since 1963, has become barred by time. It was also contended that there is variance in the statement of the plaintiffs. According to the pleading a sum of Rs. 500/- was advanced on 20-12-66, but the plainmtiff, in his a statement, admitted that no such money was advanced on this date. In fact this money was due since 1963 when the defendant executed pronote in respect of this money and in respect of the same Ex. 1 was got executed. Thus, the plaintiffs are not entitled to any decree for the old outstanding amount is respect of which there was no suit.

8. Learned counsel for the plaintiffs, on the other hand, contended that an acknowledgement of liability is implicit from Ex. 1. Firstly, a sum of Rs. 500/- is debited in the 'Khata' with a stipulation of interest and further two debit entries in respect of interest had been made and all the three entries had been signed by the defendant and the circumstances in which and the manner in which the document Ex. 1 had been executed, clearly indicate that the defendant acknowledged his liability to pay Rs. 632.80 p. In the Rajasthan case referred to by the learned First Appellate Court it has been so held that where there is an acknowledgement along with the stipulation to pay interest such a document is covered Under Section 25(3) of the Contract Act giving a creditor a fresh cause of action As regards the second contention, learned Counsel for the plaintiffs urged that the defendant himself has admitted his liability for some past considerations in his statement and even when cash consideration is not proved by the plaintiffs and if past consideration is proved by the plaintiffs are other-wise entitled to a decree. Such a question will not arise in the present case in view of the fact that the defendant executed Ex. 1 acknowledging his liability in respect of time barred debt.

9. I have given my serious & anxious consideration to the contentions advanced before me by both the sides. Out of the two contentions the first contention requires some consideration. In case it is found that Ex. 1 is covered Under Section 25(3) of the Contract : Act, the second contention will not arise for consideration at all, in view of the fact that Ex. 1 will give a fresh cause of action to the plaintiff-creditors in respect of the time barred doubt. The whole question is how Ex. 1 is to be construed. Can it be considered to fall under Section 25(3) and for that, it as to be seen, that any acknowledgement of liability can be inferred from it with stipulation of interest. If it can be so inferred, then the plaintiffs can succeed in view of the observations made in the case Chhaganlal v. Manji I.L.R. 1962 12 Rajasthan 839. It has been categorically observed that it is settled law that if there is an acknowledgement along with a stipulation to pay interest, which is its integral part then there is a promise to pay in writing which satisfied the requirements of Section 25(3) of the Contract Act. In Munshi Lal v. Hira Lal A.I.R. 1947 All. 74, the Full Bench of Allahabad High Court held that a document said to constitute an acknowledgement has to be construed in the context in which it is given and where its language is not clear in itself, the context may be examined to see what it is to which the words refer. It is in this light Ex. 1 is to be examined.

10. Ex. 1, as reproduced above, clearly goes to show that a sum of Rs. 500/- was debited in the defendant's 'Khata' which relates to the date 20-12-66 and further I find the words and figure **iz- : 1**. Thereafter there are two more entries in respect of interest. One for the date 11-3-67 and the other for the date 28-2-68 and thereafter beneath these two entries there appear signatures of the defendant Now all these three entries are on the debit side of the 'Khata' signed by the defendant. The context in which the 'Khata' came to be executed, cannot be ignored. Admittedly there was existing liability in respect of which this 'Khati' was executed and further in the first entry rupee one suggests that the interest stipulated was one percent 'Pra' is to be construed as percent Further, this interest can be taken to be monthly interest as is the prevalent practice. Thus, the context and the circumstances and the manner in which Ex. 1 is executed only suggests that the defendant acknowledged his liability for a sum of Rs. 632.80p. and he further agreed to pay interest thereon @ one percent per month. In my opinion from Ex.1 a clear acknowledgement of liability arises, though these words do not find mention that so much amount remains due or balance if any amount has been struck or any amount is to be paid Even in the absence of such clear expressions what can be inferred is only this that the defendant has acknowledged his liability to pay a sum of Rs. 632.80p It is true that according to the statement of the plaintiff, the amount was due since 1963 and it has become barred by time, but still if Ex. 1 is found to be covered Under Section 25(3) of the Contract, the plaintiffs have got a good cause of action and can successfully maintain the suit as it will furnish them a fresh cause of action in respect of a time barred debt.

11. I, therefore, hold that Ex. 1 constitutes an acknowledgement of liability with a stipulation to pay interest and as such it is covered Under Section 25(3) of the Contract Act. Thus the plaintiffs' suit has been, in my opinion, rightly decreed by the first appellate court.

12. So far as the second contention is concerned it has no Merit. The defendant in his statement admits his signatures on the 'Khata'. He has further stated that he vas paid a sum of Rs. 1,700/- or 1,800/- and a sum of Rs. 400/- or Rs. 500/-, then stated Rs. 300/- remained due on the date of signatures on Ex. 1. He also admits that he received a notice from the plaintiffs in respect of the 'Khata' amount but he gave no reply of the said notice. The statement of the defendant coupled with his conduct of giving no reply to the notice, if read along with the plaintiff's statement, clearly establishes this fact that 'Khata' amount was due firm the defendant. More over, as regards the second contention it may be stated that from the averment made in the first para of the plaint, it cannot be said that the plaintiffs have set up any case consideration from the language what can be gathered is that it was an old outstanding amount. It appears that the parties went to trial with a case of past consideration, it cannot be said that any prejudice is caused to the defendant particularly in the light of his own statement. Even assuming there, is an averment of cash consideration, but if past consideration is proved, sail in my opinion, the plaintiffs can succeed. The rule of secondum allegata et proliata will have no application to the facts and circumstances of this case. In Ramani Mohan Bhartacharjee v. Suriya Kumar Dhar and Anr. A.I.R. 30 1945 Calcutta 22 the suit on pronotes was based on certain alleged loan advanced prior to the execution of the pronotes. This allegation was disproved by the defendants, but the defendants' evidence showed another loan as consideration for pronotes. It was held that the suit can not be dismissed.

13. Thus the plaintiffs' case, if viewed in any way, deserves to be decreed and it has been rightly decreed by the first appellate court.

14. No other point has been pressed before me.

15. In the result I find no force in this revision petition so it is hereby dismissed with costs.


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