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Sadasook Agarwalla Vs. Baikanta Nath Basunia - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal1043
AppellantSadasook Agarwalla
RespondentBaikanta Nath Basunia
Cases ReferredGangadharrao Venkatesh v. Sidramapa Balapa Desai
Excerpt:
limitation - acknowledgment in writing--'signing,' what amounts to--limitation act (xv of 1817) section 19--hatchitta--interest. - .....on the 22nd may 1898, the suit was within time.3. the main defence taken in the case was that the suit was barred by limitation. the suit was brought on the katchitta which has been translated and has been placed before us. that document sets out the facts already mentioned. it bears at the head of it the name and signature of the defendant. under the entry of the 22nd may 1898, which the plaintiff states is an acknowledgment of indebtedness on the part of the defendant, there are written the words 'likhitan khod' ('writer self') and on the credit side under the payment are written the same words 'writer self.'4. the case for the defence was that the acknowledgment on tile debit side did not comply with the provisions of section 19 of the limitation act so as to save the debt from being.....
Judgment:

Brett and Mookerjee, JJ.

1. The plaintiff-appellant in this appeal brought a suit to recover from the defendant-respondent the sum of Rs. 949 on a hatchitta.

2. The plaintiff's case was that the defendant had borrowed Rs. 300 from him on the 12th Assar 1302 corresponding to the 19th June 1895, Rs. 25 on the 7th Assar, and Rs. 5 on the 12th Assar, thus mating a total of Rs. 330; that on the 9th Jaistha 1305 corresponding to 22nd May 1898, the defendant had acknowledged that that sum was due together with interest thereon from the 19th of June 1895 up to that date, amounting to Rs. 267-12, and on the Same date he had paid a sum of Rs. 9 in part payment of the loan taken on the 7th Assar. The present suit was instituted on the 20th September 1900, and the plaintiff's case was that by reason of the acknowledgment, made by the defendant on the 22nd May 1898, the suit was within time.

3. The main defence taken in the case was that the suit was barred by limitation. The suit was brought on the katchitta which has been translated and has been placed before us. That document sets out the facts already mentioned. It bears at the head of it the name and signature of the defendant. Under the entry of the 22nd May 1898, which the plaintiff states is an acknowledgment of indebtedness on the part of the defendant, there are written the words 'likhitan khod' ('writer self') and on the credit side under the payment are written the same words 'writer self.'

4. The case for the defence was that the acknowledgment on tile debit side did not comply with the provisions of Section 19 of the Limitation Act so as to save the debt from being barred by limitation. The entry on the credit side, it is also alleged, as it did not specify that it was made fin account of interest, must be taken to be a payment of part of the principal only of the loan taken on the 7th Assar 1302, that is to say, the 20th of June 1895.

5. The Munsif hold that, so far as the debt of the Rs. 300 was concerned and the interest thereon, the suit was barred, by limitation. He also held that the suit, so far as the plaintiff sought to recover the sum of Rs. 5 borrowed on the 12th Assar 1302 was concerned, was also barred; but he held that the balance of the loan of Rs. 25 taken on the 7th Assar 1302 was not barred by reason of the payment of a part of the principal made on the 9th Jaistha 1305 corresponding to the 22nd May 1898.

6. The plaintiff appealed against the decision of the Munsif and his appeal was dismissed. He has in consequence preferred this appeal to this Court.

7. The only question which has been argued before us, and which we have to decide is whether the plaintiff was not barred from recovering the sum of Rs. 300 lent on the 6th Assar 1302 corresponding to the 19th June 1895, and the other two sums borrowed from him on the 7th Assar and 12th Assar, by reason of the fact that on the 22nd May 1898 the defendant; acknowledged his indebtedness for those sums and for the interest due on those sums up to that date, amounting to Rs. 267-12.

8. After hearing the learned Calais on both sides we are of opinion that the suit was not barred. We have been referred to two decisions of the Judges of the Bombay High Court, viz., Andarji Kalyanji v. Dulabh Jeevan (1877) I.L.R. 5 Bom. 88 and Jekisan Bapuji v. Bhowsar Bhoga Jetha (1880) I.L.R. 5 Bom. 89. In those two oases the Bombay High Court held in two accounts, similar to the hatchitta in the present case, in which the debtor had signed his name on the top and then had afterward made entries, and, at the foot of the Entries, had written in one the words 'by his own hand' and in the other the words 'dustakat khod,' that those two documents were sufficiently signed within the meaning of Section 19 of Act XV of 1877, and Section 4 of Act XIY of 1859 (the previous Limitation Act).

9. This Court in the case of Brojender Coomar v. Bromomoye Chowdhrani (1878) I.L.R. 4 Calc. 885 has held that when an account in a hatchitta has two sides to it, the one headed 'amount advanced' and the other headed 'amount received' and the amount actually due on such account varies from time to time and depends upon the relation of the amount advanced to the amount received, it is not necessary that each entry shall be stamped in order, to constitute it an acknowledgment against the debtor. It was also held that in a document of that kind, what the Court has to look to is the intention of the parties, and whether the entries are such that they cannot be detached from one another because they all form, part of one account, and, that if those conditions are fulfilled, the document must for the purpose of being validly stamped be treated as a whole, and that each entry in it need not be separately considered. The hatchitta relied on in the present case is similar to that considered by this Court in. the case mentioned above. The hatchitta represents the account between the present defendant and the present plaintiff; the entries in this account were admitted by the defendant, practically in his written statement, and certainly specifically by the pleader in the Court of first instance to be all in his handwriting. The entry on the debit side dated the 9th Jaistha 1305, corresponding to the 22nd May 1898, which is the important entry for the purpose of determining the question of limitation in this appeal, is admittedly in the handwriting of: the defendant. In fact the defendant's pleader before the Munsif referred specifically to the entry, and admitted that it was written by the defendant. AH then 'we have to consider is whether the words 'likhitan khod' at the bottom of that entry, coupled with the fact that at the top of the page appears the name of the defendant, are sufficient to amount to assigning of the acknowledgment within the meaning of Section 19 of the Limitation Act. In our opinion in such a case it is necessary to consider the intention of the parties, and, whether it can be taken that the words 'likhitan khod' were the form of words adopted by the defendant for the purpose of affixing his signature to such documents.

10. The Bombay High Court in the case of Gangadharrao Venkatesh v. Sidramapa Balapa Desai (1893) I.L.R. 18 Bom. 586 held that where certain words had been used at the commencement of a letter and certain other words at the end of it, neither of which wore an actual signature of the name of the writer, still when it was shown that the writing of these specified words by persons of the class to which the defendant in that case belonged at the top and bottom of letters was the usual way amongst such persons of authenticating letters, the writing of those words was a signing within Section 19 of the Limitation Act. In their judgment they state, referring to a previous case which they followed, that the ground of that decision must be that the signing in such manner as is usually adopted by the debtor with the view of showing that he intended to be bound by the document, renders the document effective as an acknowledgment under the section.' They go on to say: 'It is on this ground indeed that it has also been held that the 'signing' may be by writing the name in any other part of the document provided it be intended to operate as an acknowledgment by the party that it is his instrument.'

11. We think that the principle adopted by the Bombay High Court should be held to apply to the present ease. We hold that the words 'likhitan khod' at the foot of the two entries in this account indicate that it was the usual method adopted by the debtor of signing hatchittas when his name appeared at the top of them as the debtor, and we may observe that this is Hot an unusual method of signing adopted in such documents. We are also satisfied, and in fact it has not been seriously disputed, that it was the intention of the debtor when he made the entry on the 22nd May 1898 to acknowledge his indebtedness.

12. We therefore think that the acknowledgment bearing at the foot the word 'likhitan khod' was a sufficient acknowledgment within the moaning of Section 19 of the Limitation Act, to save the debt from being barred by limitation. It has been suggested to us that the acknowledgment only applies to the interest. But reading the words of the acknowledgment and having regard to the form of the entry in the hakhitta, we are satisfied that it was intended to acknowledge not merely the interest due, but also the debt on which that interest Sad been calculated.

13. We therefore hold that so far as the whole claim of the plaintiff is concerned, the acknowledgment of the 22nd May 1898 is sufficient to save it from being barred by limitation. We must therefore set aside the judgments and decrees of both the Courts below and in lieu thereof decree the plaintiff's claim in full with costs.


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