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Manapalli Krishnayya Vs. Kaza Seetharamayya and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1937Mad764; (1937)2MLJ627
AppellantManapalli Krishnayya
RespondentKaza Seetharamayya and anr.
Cases ReferredPowis & Bryant v. Quebec Bank
Excerpt:
- - the order appointing receiver distinctly authorises the receiver to make payments of the debts due to others by the firm. he endorsed a bill of exchange in the name of the partnership......meaning all acts ramayya, necessary and incidental for the realisation of the assets and for the payment of debts due by the firm. this was on the 5th october, 1923. the first defendant was discharged from the office of the receiver on the 19th february, 1929. it was during this interval that ex. f came into existence. the recitals in ex. f are to the effect that the plaintiff pressed for payment of the debt on the ground that it would be barred by limitation but as the first defendant had not the account books before him, as he could not verify the amount due and as soon as the account books were received from court he would pay the principal and interest which may be found due in accordance with the account without having any regard to limitation. there can be no doubt that this.....
Judgment:

Venkataramana Rao, J.

1. The main question argued in this second appeal is one of limitation. The suit is to recover a sum of Rs. 709-7-0 due in respect of dealings had with the first and second defendants who carried on business under the name of Seetharamanjaneya Rice Mill. The claim would be admittedly ramayya. barred by limitation but for an acknowledgment of liability contained in the letter Ex. F executed by the first defendant on the 28th October, 1926. The second defendant, who is the appellant in this second appeal, resists the claim on the ground that Ex. F is not binding on him on two grounds: (1) The letter was intended to be executed by both the defendants but it is only signed by the first defendant and therefore' inoperative as against him (second defendant). (2) On the date of Ex. F there was a decree for dissolution of partnership made in O.S. No. 244 of 1923 and the first defendant could no longer act for him.

2. The first contention can be easily disposed of. Though the document was intended to be executed by two persons, at the time of the execution it was agreed that it would be enough if the first defendant executed it as he was the receiver appointed in the said suit and the letter was signed by him as receiver. The view taken by the lower Court in this behalf is correct and I see no reason to differ from it.

3. To appreciate the second contention a few facts may be necessary. O.S. No. 244 of 1923 was a suit for dissolution of partnership of the said Seetharamanjaneya Rice Mill and in that suit an application was made on the 5th September, 1923, for the appointment of a receiver by the second defendant who was the plaintiff in the said action. The petition ran thus:

For the reasons set forth in the affidavit filed therewith, the plaintiff prays for the appointment of a receiver for collecting the assets due to the suit rice mill from others and for payment of the debts due to others and do other acts.

4. The first defendant in paragraph 3 of his counter-affidavit filed therein stated that in the matter of recovery of the assets due to the firm and in the matter of payment of the debts due by the firm he would carefully attend to them without allowing them to be barred by time and he would recover the debt by filing suits, etc. On the strength of the undertaking given by the first defendant the plaintiff agreed to the appointment of the first defendant as receiver. The order of the Court was ' first defendant appointed receiver accordingly', that is. in accordance with the terms of the petition. Therefore the effect of this appointment was that the first defendant was appointed receiver for collecting the assets due to the suit rice Krishnayya mill from others and for payment of the debts due to others Seetha and to do other acts which I interpret as meaning all acts ramayya, necessary and incidental for the realisation of the assets and for the payment of debts due by the firm. This was on the 5th October, 1923. The first defendant was discharged from the office of the receiver on the 19th February, 1929. It was during this interval that Ex. F came into existence. The recitals in Ex. F are to the effect that the plaintiff pressed for payment of the debt on the ground that it would be barred by limitation but as the first defendant had not the account books before him, as he could not verify the amount due and as soon as the account books were received from Court he would pay the principal and interest which may be found due in accordance with the account without having any regard to limitation. There can be no doubt that this letter operates as an acknowledgment of liability. The question is whether the first defendant as receiver is entitled to acknowledge this debt, and if so, would it save the suit from being barred by limitation even as against the second defendant? The order appointing receiver distinctly authorises the receiver to make payments of the debts due to others by the firm. If the receiver had made a part payment, it would certainly be within the scope of his authority though the effect of it might be to stop the statute of limitation from running. In Hale, In re: Lilley v. Foad (1899) 2Ch. 107 a question arose whether a part payment made by a receiver who was authorised to make payments under a statute towards the debt due in respect of the estate of a mortgagor would save an action to recover the debt from the bar of limitation. The Court of Appeal held in that case that it would and Sir F.H. Jeune, one of the learned judges who took part in the appeal, remarked thus:

It seems to me that this receiver, in making this payment was acting properly, that is, within the scope of his authority. Then the difficulty in the case vanishes. It is impossible to draw a distinction between a payment as a payment, and a payment as an act from which an inference of a promise is to be drawn, that is, a legal inference. Payment of part of a debt is an acknowledgment that it is part of a debt which has to be paid. It is impossible to draw a distinction between a payment as a payment, and a payment with regard to which there arises the legal inference of a promise to pay the whole debt.

5. If the receiver can make a part payment and take the case out of the statute, I do not see any reason why he would not have power to acknowledge the debt. As observed by their Lordships of the Judicial Committee in Raja Braja Sundar Deb v. Bhola Nath (1919) 12 L.W. 288 (P.C.) where an agent was authorised to pay the amount of the claim, 'he could plainly also arrange to prevent time from becoming a bar to it'. In that case the agent executed a renewed promissory note which was held sufficient to save the suit from being barred by limitation. In' this case the receiver must therefore be deemed to have made acknowledgment for and on behalf of the partners of the firm. In Lakshmanan Chetty v. Sadayappa Chetty : (1918)35MLJ571 it was held that where a receiver in an action for dissolution of partnership had authority to do all things necessary for the preservation of the assets of the firm, an acknowledgment of liability made by him in respect of a claim against the partnership, was held a sufficient acknowledgment within the meaning of Section 19 of the Limitation Act to prevent the claim being barred against the partners. Their Lordships observe that in many cases an acknowledgment of a debt may be necessary to save the estate from loss and thus necessary for the preservation of the estate. The learned Subordinate Judge in this case finds that the acknowledgment was made to prevent the creditor from filing a suit and to avoid unnecessary expense to the partnership. Therefore I am of opinion that Ex. F would avail as an acknowledgment of liability even as against the second defendant.

6. I shall now deal with some of the cases relied on by Mr. Somasundaram. Kilgour v. Finlayson (1789) 1 H.B1. 155 : 126 E.R. 92 was 'one of the cases relied on by him. In that case on the dissolution of a partnership one of the partners was authorised to receive all debts owing to and pay those owing from the partnership. He endorsed a bill of exchange in the name of the partnership. It was held that he had not authority to do so and it was conceded in arguments that the action on the bill could not be supported against the other partners. Abel v. Sutton (1800) 3 Esp. 108 : 170 E.R. 556 was a case where on the dissolution of a partnership one of the partners was authorised to settle the affairs of the partnership but this power was held insufficient to negotiate a bill of exchange and the reason assigned was that no one might make another his debtor against his will. The distinction between these cases and the present is this; the partner in the said cases was incurring a fresh liability, whereas in the present case the receiver was acknowledging a liability already existing. This distinction was noticed in the case in Abdulalli Badrudin v. Ranchodlal Trikamial (1916) 38 I.C. 873 decided by the Bombay High Court. In Bryant, Powis & Bryant v. Quebec Bank (1893) A.C. 170 an agent of a comp(1893) A.C. 170 any who was authorised to make a contract of sale and purchase under the express terms of a power-of-attorney was held not to have the power to borrow money or bind the company by a contract of loan. The case only illustrates the general principle that a power to bind a principal by a particular act of an agent who was authorised to transact the affairs of the principal under a power-of-attorney must be derived from the instrument and where the power is not expressly conferred or would not arise by necessary implication the principal would not be bound. In the present case under the order of appointment the receiver by necessary implication had the power to acknowledge the debt. The view of the lower Court that the claim against the second defendant is not barred by limitation is correct. In the result, the second appeal fails and is dismissed with costs of first respondent.

7. Leave refused.


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