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K. Kandaswami Mudaliar Vs. thevammal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1938Mad601; (1938)1MLJ620
AppellantK. Kandaswami Mudaliar
Respondentthevammal
Cases ReferredUdaypal Singh v. Lakhmi Chand I.L.R.
Excerpt:
- - we fail to see any reason why extrinsic evidence should be excluded. mohammad yusuf air1937all640 as well as in the unreported case are opposed to the contention pressed on us by the advocate for the appellant. unless the words in the proviso clearly require that the acknowledgment itself should recite these facts, it does not appear to be just or reasonable that a payment which was really made towards interest as such should be held to be not sufficient to give a fresh period of limitation......is whether the payment alleged by the plaintiff of a certain amount as interest due on the suit promissory note can be proved to have been made towards interest as such by evidence other than the writing referred to in the proviso to section 20 of the limitation act. the payment is acknowledged in writing by the debtor in the promissory note which was executed in respect of that amount. it is not disputed that payment may be made either in cash or by the execution of a promissory note. there can thus be no doubt in this case that the fact of payment is evidenced by writing signed by the debtor. the writing however does not itself say that the payment was made towards interest as such due on the suit promissory note. now the question is whether this fact, namely, that the payment was.....
Judgment:

Pandrang Row, J.

1. The only point that arises in this appeal is whether the payment alleged by the plaintiff of a certain amount as interest due on the suit promissory note can be proved to have been made towards interest as such by evidence other than the writing referred to in the proviso to Section 20 of the Limitation Act. The payment is acknowledged in writing by the debtor in the promissory note which was executed in respect of that amount. It is not disputed that payment may be made either in cash or by the execution of a promissory note. There can thus be no doubt in this case that the fact of payment is evidenced by writing signed by the debtor. The writing however does not itself say that the payment was made towards interest as such due on the suit promissory note. Now the question is whether this fact, namely, that the payment was made towards such interest can be proved by extrinsic evidence. We fail to see any reason why extrinsic evidence should be excluded. There is no rule of law which requires that the fact of a payment having been made towards interest due on a promissory note should be proved only by documentary evidence.

2. The question also depends upon the interpretation of the words in the proviso to Section 20 of the Limitation Act which runs as follows:

Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.

3. The advocate for the appellant contends that the acknowledgment should not be merely of the payment referred to in the earlier part of Section 20 but that it should be an acknowledgment reciting in so many words that the payment was made towards interest as such or part of the principal, and that where the acknowledgment in writing is silent about this there is no such acknowledgment as is contemplated by the proviso. We are of opinion that this contention involves the reading into the proviso of words which are not to be found therein. Secondly such a construction of the proviso would be unreasonable. Thirdly the balance of authority is against this view. Apart from the decisions quoted by our learned brother in the judgment under appeal some other comparatively recent decisions have been brought to our notice, namely, those reported in Pearey Lal v. Mohammad Yusuf : AIR1937All640 , Idan Sadagar v. Premsukdas-Ramchandra A.I.R. 1937 Pat. 583, and the Full Bench decision of five Judges in Udaypal Singh v. Lakhmi Chand I.L.R.(1935) 58 All. 261 (F.B.). An unreported decision of Beasley, C.J., in C.R.P. No. 1450 of 1935 on the file of this Court has also been brought to our notice. The decisions in Idan Sadagar v. Premsukdas-Ramchandra : AIR1937Pat583 and Pearey Lal v. Mohammad Yusuf : AIR1937All640 as well as in the unreported case are opposed to the contention pressed on us by the advocate for the appellant. In the Allahabad Full Bench case there is nothing said which militates against the view adopted by our learned brother in the judgment under appeal. We are unable to accept the view that the object of the recent amendment of the proviso was to require that the acknowledgment in writing should in terms recite the payment of interest as such or of part of the principal. The amendment was made, as stated by Sulaiman, C.J., at page 274 in Udaypal Singh v. Lakhmi Chand I.L.R.(1935) 58 All. 261 (F.B.) as it was considered necessary to put a stop to the controversy between creditors and debtors as to whether any amount had in fact been paid. See also the observations of Bajpai, J., in Udaypal Singh v. Lakhmi Chand I.L.R.(1935) 58 All. 261 (F.B.). The object of the amendment was, in short, to deprive the creditors of the right, which was often abused, to plead oral payments of interest as such and try to establish them by oral evidence in the absence of anything in writing by the debtor himself evidencing payment. So far as we can see, Section 20 as it now stands merely provides that the payment must be of interest as such or of part of the principal - and this can be proved by all lawful means - and that such payment will not however start a fresh period of limitation unless there is an acknowledgment of the payment in writing or signed by the person making the payment. It is not correct to read into the proviso that the writing referred to therein should itself recite in so many words that the payment made was of interest as such or of part of the principal. The word acknowledgment cannot be interpreted as necessarily connoting the idea that the acknowledgment must be in a particular form or should contain a particular recital, namely, that payment made is of interest as such or part of the principal. Unless the words in the proviso clearly require that the acknowledgment itself should recite these facts, it does not appear to be just or reasonable that a payment which was really made towards interest as such should be held to be not sufficient to give a fresh period of limitation. On the whole therefore we see no reason to differ from our learned brother's conclusion on this point.

4. The appeal therefore fails and is dismissed with costs.


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