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E.C. Muthuswami Gounder Vs. V.K. Chennimalai Gounder - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1970)1MLJ341
AppellantE.C. Muthuswami Gounder
RespondentV.K. Chennimalai Gounder
Cases ReferredNarasinga Rao Garu v. Rangayya
Excerpt:
- - it is by now well settled that if a debtor pays a cheque towards a debt which was not in dispute at that time and there is a delay in the encashment thereof, nevertheless the payment by cheque made by the debtor to the creditor, as evidenced by the cheque, is to be deemed to take effect from the date when the cheque was drawn and posted by the debtor to the creditor. thus the two limbs which i cast earlier which do form part of section 20 of the limitation act are satisfied and the ingredients therein are fulfilled......sent through the media of post office. every one is aware of the form prescribed for sending the money by money orders wherein a debtor subscribes his signature and also signifies therein his assent for the payment of the money so sent by him to the creditor named in that form. this writing in the money order form by itself is an indication that the intention of the debtor, when he transmitted (he money by money order, was to pay the same to the named creditor therein. it therefore follows that the money sent under exhibit a-2, should be deemed to be a payment made by the respondent to the petitioner, towards a debt and that having been made before the expiration of the prescribed period by the debtor, a fresh period of limitation shall be computed from the date of transmission which.....
Judgment:

T. Ramaprasada Rao, J.

1. The plaintiff, aggrieved against the decision of the learned Subordinate Judge, Erode, who dismissed his suit as being barred by limitation, has come up to this Court on revision. The petitioner filed the suit on the foot of a promissory note, Exhibit A-1 and he relied upon a payment of Rs. 100 made by the respondent which was admittedly sent by money order. Exhibit A-2 is the money-order coupon for Rs. 100 sent by the respondent. It was sent on 16th July, 1962. It simply shows that a sum of Rs. 100 was sent by the respondent to the petitioner. On a consideration of the merits of the case, the lower appellate Court found that the sum of Rs. 100 was so sent towards the suit promissory note debt and not towards another loan as contended by the respondent. The appellate Court, however, found as a fact that the sum of Rs, 100 sent by money order by the respondent was received by the petitioner or 18th July, 1962 and therefore held that the payment should be deemed to have been made when the money order was received by the petitioner and hence the suit was dismissed as out of time. The lower appellate Court would not accept the contention that the payment made by a debtor in the post office will tantamount to the payment to the creditor and therefore the sending of money order will not save the suit from the bar of limitation. It was of the view that though there was a payment, the acknowledgment if any as evidenced by the money order receipt cannot save the bar since as a fact, the petitioner received the same only on 18th July, 1962. The suit was filed on 10th July, 1965, apparently on the foot that the money order was sent on 16th July, 1962, and that by itself is evidence of payment and hence the suit filed within 3 years from that date would be within time.

2. Reliance was placed on Karasinga Rao Garu v. Rangayya : AIR1943Mad133 , wherein the learned Judges were of the view that if limitation is to be saved under Section 19, one must be able to read into an endorsement not merely that a payment has been made but that a further sum is admitted to be due. The lower Appellate Court therefore allowed the appeal and set aside the judgment and decree of the trial Court.

3. Section 19 of the Limitation Act XXXVI of 1963 which is a replica of Section 20 of the earlier enactment reads as follows:

Where payment on account of a debtor of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:

Provided that, save in the case of payment of interest made before 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.

Explanation.--For the purposes of this section (a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment; (b) ' debt' does not include money payable under a decree or order of a Court.

4. It has two distinct and separable limbs. The first one is that the payment should be on account of a debt and that such a payment should constitute an acknowledgment. The second is that there should appear by reason of such payment, an acknowledgment in the handwriting of the debtor or the person making the payment under authority. In this case the respondent sent the money order on 16th July, 1962, for onward transmission to the creditor for payment. When a debtor seeks the instrumentality of the post office as media for transmission for payment of a part of a debt admittedly due by him to the creditor then, it is certainly a reasonable inference to draw, that such a payment was not made by him in the abstract but with the sole and only purpose and intention of payment of the same to the creditor towards any debt which was by then subsisting. Mr. Chinnappa, learned Counsel for the respondent states that the payment to a post office ought not to be treated as such because, it cannot be deemed to be a payment to a creditor. He contrasted this state of affairs with a case where a debtor passed on a cheque to the creditor. Cheques also may be handed over in person or sent by post to a creditor. It is not always necessary that when a cheque is received by a creditor, it must be said that it was handed over to him in person by the debtor. One can easily comprehend a case where a cheque is sent by post just as a money order is sent through post office. In the former case, can it be said that the payment was made by the debtor only on the date when the creditor received the cheque or on the date when he encashed the same? It is by now well settled that if a debtor pays a cheque towards a debt which was not in dispute at that time and there is a delay in the encashment thereof, nevertheless the payment by cheque made by the debtor to the creditor, as evidenced by the cheque, is to be deemed to take effect from the date when the cheque was drawn and posted by the debtor to the creditor. The date when the creditor realises the cheque is of no significance. If this is therefore the principle which has to be applied when payments area made by cheques, I do not see any reason why the same principle should not be made applicable to a case where money is sent through the media of post office. Every one is aware of the form prescribed for sending the money by money orders wherein a debtor subscribes his signature and also signifies therein his assent for the payment of the money so sent by him to the creditor named in that form. This writing in the money order form by itself is an indication that the intention of the debtor, when he transmitted (he money by money order, was to pay the same to the named creditor therein. It therefore follows that the money sent under Exhibit A-2, should be deemed to be a payment made by the respondent to the petitioner, towards a debt and that having been made before the expiration of the prescribed period by the debtor, a fresh period of limitation shall be computed from the date of transmission which shall be deemed to be the date of payment. In this case the date of transmission is 16th July, 1962.

5. The other question is whether such an open payment as evidenced in the coupon which is invariably attached to a money order should be deemed to an acknowledgment within the meaning of the proviso to Section 19 of the Limitation Act. There is no difficulty in answering this question since the lower Court has found as a fact that the amount of Rs. 100 was sent towards the suit promissory note and not towards any other debt. Such being the case, it is but fair to infer that if a debtor sends moneys towards a particular debt and if by evidence aliunde it is proved that such payment was intended to be towards the only debt by then due by the debtor to the creditor, then it falls short of nothing but an acknowledgment. The views of mine as above are supported by a decision of the Division Bench of our Court reported in Wazir Sultan & Sons. v. P.S. Rao I.L.R. : AIR1959Mad195 . On the immediate question under consideration Rajamannar, C.J., would not agree with the opinion of a single Judge of the Patna High Court who was of the view that if an amount was sent by the debtor by money order but there was nothing in the money order coupon to say on what account the remittance was made, it would not amount to an acknowledgment as it did not appear on its face to be such. The learned Judges after quoting the words of Rowland, J., which stated:

I think the acknowledgment must appear on its face to be on account of the debt or, at least on account of a debt, whereas in the money order coupon there is nothing at all to show on what account the remittance was made.

observed that they would not agree with the view with respect and said that the above view is not supported either by the language of Section 20 of the Limitation Act as it then was, or by the decisions of the Court. They also expressed their note of dissent for the apparent view that it is necessary that the connection between payment and the debt should appear on the face of the writing required by the proviso to Section 20 (1) of the old Limitation Act. With utmost respect, I agree with this observation.

6. It therefore follows that not only there was a payment within the period of limitation as is contemplated under the first part of Section 19 of the present Act, but there is also an acknowledgment of the actual debt due and payable by the respondent to the petitioner. Thus the two limbs which I cast earlier which do form part of Section 20 of the Limitation Act are satisfied and the ingredients therein are fulfilled. The learned Judge erred in relying upon the decision in Narasinga Rao Garu v. Rangayya : AIR1943Mad133 , the facts and the ratio of which has no application to the present case under consideration.

7. The judgment and decree of the Court below is therefore set aside and the civil revision petition is allowed with costs.


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