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K.M. Muhammed Sultan Rowther and anr. Vs. K.S.M. Muhamed Nurdin - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1963)1MLJ300
AppellantK.M. Muhammed Sultan Rowther and anr.
RespondentK.S.M. Muhamed Nurdin
Cases ReferredBans Gopal v. Mewa Ram
Excerpt:
- .....will amount to an acknowledgment of liability under section 19 of the limitation act of the suit debt covered by a promissory note dated 25th january, 1951 executed by the defendants in favour of the father of the plaintiff in the suit. the suit was filed by the plaintiff, that is, the son of the original promisee, as receiver to recover the money due under the suit promissory note. before the plaintiff took action on this promissory note as receiver, on 20th january, 1955 he called upon the defendants under exhibit a-2 to pay the amount due and payable under the promissory note, and the defendants replied on 10th february, 1955 by exhibit a-3 stating that the amount due on the promissory note was discharged by executing a fresh promissory note on 20th january, 1954 in favour of.....
Judgment:

Venkatadri, J.

1. The only point that arises for consideration in this Second Appeal is whether a statement in the reply notice Exhibit A-3, dated 10th February, 1955,. sent by the defendants to the plaintiff will amount to an acknowledgment of liability under Section 19 of the Limitation Act of the suit debt covered by a promissory note dated 25th January, 1951 executed by the defendants in favour of the father of the plaintiff in the suit. The suit was filed by the plaintiff, that is, the son of the original promisee, as Receiver to recover the money due under the suit promissory note. Before the plaintiff took action on this promissory note as Receiver, on 20th January, 1955 he called upon the defendants under Exhibit A-2 to pay the amount due and payable under the promissory note, and the defendants replied on 10th February, 1955 by Exhibit A-3 stating that the amount due on the promissory note was discharged by executing a fresh promissory note on 20th January, 1954 in favour of the plaintiff, settling the amount payable under the promissory note at Rs. 2,550 and that there was also an endorsement to that effect on the back of the original promissory note. It has as a matter of fact been found by both the Courts below that this endorsement is a false one. Subsequently, due to dissensions in the family, there was a partition suit, and the present plaintiff was appointed Receiver in respect of the estate of his late father, the original promisee tinder the promissory note, to collect all the outstandings due to the estate. It is in these circumstances the present suit was filed by the plaintiff as Receiver.

2. The defendants (appellants herein) pleaded that the suit was barred by limitation, that the amount due and payable on the suit promissory note was discharged by executing another fresh promissory note, that the plaintiff could not rely on the acknowledgment in the reply notice Exhibit A-3 as that would not amount to an acknowledgment within the meaning of Section 19 of the Limitation Act, and that, in any event, the suit was not maintainable without the production of a Succession Certificate.

3. The trial Court decreed the suit and on appeal the learned District Judge confirmed the decree of the trial Court. Hence this Second Appeal by the defendants.

4. As already stated, the only point that I have to consider is whether the statement contained in the reply notice Exhibit A-3, dated 10th February, 1955, viz.,

The actual amount of the original promissory note is only Rs. 2,550 on 2nd January, 1954, and that amount you are not solely entitled as there are other sharers and that without a Succession Certificate duly obtained from Court.

has the effect of preventing the bar of limitation, or in the alternative, whether there is such an acknowledgment of liability as is sufficient for that purpose. Mr. Ismail, the learned advocate for the appellants, argued that the statement in the reply notice would never amount to an acknowledgment in law. It was contended by him that it was merely a narration of the origin of the debt and that that would not amount to an acknowledgment of the liability of the debt due and payable on the existing promissory note. He cited the decision in Appasami v. Morangam (1934) 58 M.L.J. 73 : A.I.R. 1935 Mad 371 in support of his contention, where it was held that if there is a bare recital of a past debt, it cannot be construed as an admission of a subsisting liability. But Venkatasubba Rao, J., himself has observed in that decision that

The question in each case is, is it a proper inference to draw from the facts and circumstances that the debtor intended to make an admission on the date it was made that the debt was existing

There is also another decision of Anantakrishna Iyer, J., in Mariappa v. Palaniappa : AIR1930Mad796 where it was observed that

in considering whether a particular document amounts to a proper acknowledgment within Section 19 of the Limitation Act, all that one has to see is whether the document contains an acknowledgment of liability in respect of the debt now sued upon.

In the light of these observations I have to examine the facts and circumstances that arise in this suit to find out whether the statement in Exhibit A-3 extracted above would amount to an acknowledgment of liability.

5. I have examined the recitals in Exhibit A-3 and it seems to me that the statement contained in the last paragraph in it would certainly amount to an acknowledgment of liability, because the defendants mention that the amount due and payable for the original debt was Rs. 2,550. This will certainly mean that on the date of writing that letter the defendants admitted that according to them that amount was due and payable on the suit promissory note. There is also the finding by both the Courts below that the defendants had not executed any fresh promissory note, as pleaded by them, and in the absence of any such fresh promissory note, the original debt would be the amount due and payable on the promissory note.

6. In any event, the learned advocate for the appellants contends, the plaintiff-respondent would not be entitled to claim more than the amount mentioned in the reply notice, viz, Rs. 2,550, and in support of his contention, he cited Bans Gopal v. Mewa Ram : AIR1930All461 where it was held that where a definite sum has been acknowledged, the acknowledgment an be used to save limitation only with respect to the sum acknowledged. I agree. The result would be that the plaintiff would be entitled to a decree for the sum mentioned in the reply notice, Exhibit A-3, viz., Rs. 2,550 with interest as decreed by the Courts below from 2nd January, 1954.

7. In the result, the decree of the lower Courts is modified as above. No costs. No leave.


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