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Jogeshwar Roy and Vs. Raj NaraIn Mitter - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal195
AppellantJogeshwar Roy And; Benode Behary Mookerjee
RespondentRaj NaraIn Mitter
Cases ReferredGreen v. Humphreys
Excerpt:
acknowledgment of liability - limitation--limitation act (xv of 1877), section 19--exemption from limitation--civil procedure code (act xiv of 1882), section 50. - .....new, building and repairs of your garden house, &c.;, &c.;, were finished to the approval of babu hari charan pal, engineer. some work of the one-storied lading was damaged by the last earthquake. the repairs of all the damages caused by the said earthquake, and other extra works besides, have been finished. the bill of all the aforesaid works and the amount of balance due to me for works done in your dwelling-house at no. 84, shampukur street, are sent with this letter.' in reply to that, the defendant sent a receipt which comprised the document to which i have referred, and is in these terms: 'received from babu jogeshwar roy a letter and bill for the works and repairs done in the garden house situated at no. 15-3, gopal lall tagore's road, baranagar. the, bill glanced over is.....
Judgment:

Francies W. Maclean, C.J.

1. This is a suit by a builder and contractor, and the object of it is to recover the balance of a bill, which he says is due to him for the work done in relation to certain repairs and building on the defendant's premises No. 15-3, Gopal Lall Tagore's Road in Baranagar. The defence is that the suit is barred by the statute of limitation, to which the plaintiff replies--I will quote his own pleading from paragraph 10--'More than three years have, elapsed since the additional works were completed, but the plaintiff's claim for the said balance or sum of Rs. 8,866-2-9 due to him, as in the last preceding paragraph hereof stated, is not barred by limitation, inasmuch as the defendant on the 18th June 1898, made an acknowledgment of his liability in writing signed by him.' The only question on this appeal argued before us is whether the document in question is an acknowledgment of liability within the meaning of Section 19 of the Indian Limitation Act of 1877, so as to enable the plaintiff to recover. In reply to a letter from the plaintiff which is dated the 9th of June and, which is in these terms, omitting the formal parts--'The works of new, building and repairs of your garden house, &c.;, &c.;, were finished to the approval of Babu Hari Charan Pal, Engineer. Some work of the one-storied lading was damaged by the last earthquake. The repairs of all the damages caused by the said earthquake, and other extra works besides, have been finished. The bill of all the aforesaid works and the amount of balance due to me for works done in your dwelling-house at No. 84, Shampukur Street, are sent with this letter.' In reply to that, the defendant sent a receipt which comprised the document to which I have referred, and is in these terms: 'Received from Babu Jogeshwar Roy a letter and bill for the works and repairs done in the garden house situated at No. 15-3, Gopal Lall Tagore's Road, Baranagar. The, bill glanced over is incorrect; large amounts have been wrongly introduced. I will first have the work examined, although I know that the whole of the work is not yet finished. Then I will examine the estimates, and after deducting what has to be deducted, I will see what is due.' That, it is said for the plaintiff, amounts to an acknowledgment of liability within the meaning of the statute. The question we have to decide is, upon the construction of that document, whether that is so or not.

2. It will be noticed that in the letter in reply whereto the alleged acknowledgment was sent, the builder said that the works were finished, which is challenged by the defendant, who says that the whole of the work was not yet finished. Does the so-called acknowledgment, if paraphrased, amount to anything more than this: 'I have received your bill; I think it is incorrect; there are many errors in it; the work is not finished. I will look at the estimates and have the work examined, and I will see what if anything is due;' or it might be put: 'I have received your bill. I do not think it is correct. I will look into the matters and see if anything is due.' I do not see how we can say that if a man says he will see if anything is due, that is an acknowledgment of liability that anything is due.

3. We have been referred to several oases in the English Court, of which there are very many. But I do not know that they will assist us materially, for, unless the language of the document be identically the same, a decision upon the construction of one document is not of much assistance to the Court in construing another. The only case'I will refer to, is the case of Green v. Humphreys (1884) 26 Ch. D. 474, in which, dealing with the English law Lord Justice Cotton says: 'The rule seems to be this, that if there is an absolute unconditional acknowledgment, not controlled by any other language in the letter, then the Court conies to the conclusion that by that acknowledgment the party intends a promise to pay that which he acknowledges to he due.' Assuming for the moment that the English law applies, could we say that this is an absolute unconditional acknowledgment? I do not think we could. But as I have already pointed out what we have to consider is whether it is an acknowledgment of liability within the meaning of Section 19 of the Limitation Act, which is the law applicable in this country. For the reasons I have stated, I do not think that we can properly hold that it was such an acknowledgment. I, therefore, agree with the Court below and hold that this appeal must be dismissed with costs.

4. I will now deal with appeal No. 14 of 1903. As regards the point of limitation which I have just discussed and which applies equally to this case, I do not propose to add anything to what I have already said. But two other points are raised in this case: one being whether it was competent for the plaintiff to maintain the suit. It is unnecessary to go into this, as the plea of limitation is a bar. But in this case it is said that, apart from the acknowledgment of the 18th of June 1898, there was, another acknowledgment, that is to say, an acknowledgment, given by a certificate of the 12th of July 1898 by Hari Charan Pal, who was the Engineer of the defendant, and who is mentioned in the contract between the parties. This is not set up in the plaint, and in that respect Section 50 of the Code of Civil Procedure has not been complied with. The plaintiff pleads: 'The plaintiff's cause of action' arose within the jurisdiction of this Honourable Court and is within the period provided by the statute of limitation, as the defendant acknowledged in writing the debt on the 18th day of June 1898' (paragraph 12 of the plaint). Pausing there for a moment, the, only acknowledgment pleaded is that with which I have already dealt. Section 50 of the code of Civil Procedure is therefore a bar to this other alleged acknowledgment being now set up. But assuming for the moment that the plaintiff might get over that difficulty by obtaining leave to amend the plaint, was there in fact any such acknowledgment. This matter was gone into by the learned Judge in the Court below. He did not believe the evidence of Hari Charan Pal or of the builder Jogeshwar Roy, and it is far from satisfactory. It looks as it they were colluding to the detriment of the defendant. The Court below held that there was no such further acknowledgment as is now set up. The further acknowledgment is said to he by a certificate given by Hari Charan Pal to the builder. But that cannot bind the defendant, as Hari Charan Pal had left the defendant's service some twelve months before this certificate was given, and Hari Charan Pal had no authority from the defendant to bind him. He was not then the agent of the defendant. I therefore think that this point, even if it could properly be gone into, entirely fails.

5. This appeal, therefore, mast also be dismissed with costs.

Hill, J.

6. I agree.

Stevens, J.

7. I also agree.


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