Skip to content


Sagoremal Gopalka Vs. A.C. Banerjee and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal721,159Ind.Cas.618
AppellantSagoremal Gopalka
RespondentA.C. Banerjee and Co.
Cases ReferredV. Andiappa Chetty v. Devarajulu Naidu
Excerpt:
- .....holders of them obtained renewal promissory notes from the defendants, of which the promissory note in suit is one and also obtained the deposit of various share certificates by way of security. on 5th june 1928, the promissory note of 6th june 1925 was in its turn renewed. on 10th november 1930 a suit was filed in this court by two of the gopalkas including the present plaintiff. they joined with them as plaintiffs the present plaintiff's minors sons. the defendants in the suit were the present defendants and the other gopalkas in whose favour the notes had been executed, and also certain infant gopalkas.3. the plaint alleged that the parties to that suit other than the present defendants were a joint hindu family, and that out of the assets of that family the gopalkas had advanced.....
Judgment:

Panckridge, J.

1. This is a suit on a promissory note executed by the defendants on 12th November 1927. On that day there was also a deposit of certain shares in the Bihar Firebricks and Potteries, Ltd., the particulars of which are given in a memorandum of deposit also signed by the defendants. The shares are described as security against our handnote for Rs. 20,000 only of date.' Prima facie the plaintiff's claim on the note is barred by limitation, The plaintiff submits that limitation is saved, first, by various payments on account, the last of which was made on 11th May 1929. The defendants do not dispute that a fresh period of limitation began to run on that date, but inasmuch as the suit was not filed until 13th November 1933, it would still be barred by limitation unless a fresh starting point can be found before 11th May 1932, and subsequent to 13th November 1930. The plaintiff submits that a fresh period of limitation is to be computed from 12th March 1931 on which date the defendant's, through one of their partners, signed a written statement in a suit in this Court, which in the submission of the plaintiff amounts to an acknowledgment of liability in respect of his right within the meaning of Section 19, Limitation Act.

2. The circumstances which led to the filing of that written statement must be set out in detail. There were five members, the plaintiff being one of them, of a joint family that may for purposes of convenience be referred to as the Gopalkas. On 26th November 1924, the defendants borrowed four several sums of Rs. 20,000 from four of the five Gopalkas and a sum of Rs. 10,000 from the fifth Gopalka, and executed five several promissory notes in favour of the lenders individually. One of such promissory notes was paid off on 14th May 1925, but the lender advanced a sum equal to that secured by the original promissory note on the 6th of the following month. On 12th November 1927, when outstanding notes of 26th November 1924, were about to become barred, the respective holders of them obtained renewal promissory notes from the defendants, of which the promissory note in suit is one and also obtained the deposit of various share certificates by way of security. On 5th June 1928, the promissory note of 6th June 1925 was in its turn renewed. On 10th November 1930 a suit was filed in this Court by two of the Gopalkas including the present plaintiff. They joined with them as plaintiffs the present plaintiff's minors sons. The defendants in the suit were the present defendants and the other Gopalkas in whose favour the notes had been executed, and also certain infant Gopalkas.

3. The plaint alleged that the parties to that suit other than the present defendants were a joint Hindu family, and that out of the assets of that family the Gopalkas had advanced various sums to the present defendants. Particulars of the sums advanced are set out in the plaint and amount to Rs. 90,000 which sum is arrived at by adding to the Rs. 70,000 secured by the notes of 12th November 1927 the Rs. 20,000 secured by the note of 5th June 1928. The plaint goes on to allege that the present defendants executed promissory notes in respect of the above sums in favour of various members of the joint family and promised to pay interest thereon at the rate of 5 per cent per annum. The sum due for principal and interest at the date of suit is stated to be a sum of Rs 1,23,000 for which a decree is asked together with interest and an order for sale of the shares deposited as security for the promissory notes. There is a statement that the Gopalka defendants have been joined as defendants because they have refused to join as plaintiffs and that no relief is sought against them.

4. In the written statement filed by the present defendants they admit having monetary transactions with individual Gopalkas including the present plaintiff and also admit having executed promissory notes in their favour individually. They proceed to allege that they made various payments to the various persons previously mentioned in respect of their respective promissory notes. They take specific exception to the claim made in the plaint for interest as from 1st June 1928, and state that they do not admit that interest has been paid only up to 31st May 1928. They admit deposit of the shares, and in particular they admit the deposit of 500 shares in the Bihar Firebricks Co. Ltd., with the present plaintiff. Para. 6 is as follows:

Without prejudice to the aforesaid contentions the defendant firm state that upon an account being taken a much smaller amount will be found due by the defendant firm and on the securities being realised nothing will be due.

5. The contentions to which reference is made in the foregoing paragraph are the submission that the plaintiffs are not entitled to maintain the suit in its present form. I take it that the submission is that inasmuch as the notes were in favour of the individual Gopalkas they could not be the subject matter of a single suit by the plaintiffs purporting to represent the joint family. I have been referred to various cases which deal with the effect of an admission of the execution of a promissory note and failure to allege that it has been discharged by payment or otherwise. The case which has been cited in support of the contention that unless discharge is alleged, admission of execution amounts to an admission of liability, purport for the most part to be based upon the decision of the Judicial Committee in Maniram v. Seth Rupchand (1906) S3 Cal 1047. I am inclined to agree with Mr. Roy that case does not justify the comprehensive propositions which have been enunciated in some of the reported cases. For example, in Subbarama Aiyar v. Verrabadra Pillai, 1921 Mad 464 in comparing the ease of an admission of execution of a promissory note with the admission of the existence of an open and current account, Napier, J., observed that in his opinion the inference in the case of an admission of execution of a promissory note is much stronger. That does not appear to me to be a correct view because to admit the existence of an open and current account is to admit the present right of one person to an account as against the other. The admission of the execution of a promissory note prima facie is no more than an admission of liability as at the date of the note. I should certainly hesitate to accept as correct the decision in Rangamaya Kalu Aiya v. Subbayan (1909) 5 M LT 71 where it was held that the acknowledgment of liability existing at the past time without the allegation that the liability has since ceased is presumed to be an acknowledgment of liability when the statement is made. I think that a sounder view was taken by Ramesam, J., in Swaminatha Odayar v. Subramma Aiyar, 1927 Mad 219 which is to the effect that the admission must be one which can be applied from the facts and surrounding circumstances and is not one which is implied as a matter of law. To adopt the words of Ayling, J., in V. Andiappa Chetty v. Devarajulu Naidu (1913) 36 Mad 68. 'From the language used and the circumstances in which the acknowledgment is made it must be decided whether it amounts to an implied acknowledgment of subsisting, liability.' Applying that test, such an acknowledgment is in my opinion applied in the defendants' written statement in the suit of 1930.

6. It is not now argued that the promissory note which the defendants admit having executed in favour of the present plaintiff in para. 2 of that written statement, can be any document other than the promissory note in suit. When we turn to para. 3, we find that the only allegation is that the defendants have made various payments to the various persons mentioned in the previous paragraphs in respect of their respective promissory notes. That is in answer to the paragraph in the plaint stating that owing to circumstances which I need not set out, the plaintiffs are unable to give the exact amount of claims made by the defendants but they believe that all the interest up to 31st May 1928 has been paid. In my opinion the words 'in respect of their respective promissory notes' mean 'on account of their various promissory notes' and are quite impossible to reconcile with any suggestion that any of the promissory notes has been discharged by payment. Having regard to the language of the plaint, this inference is strengthened by the assertion of the defendants that they do not admit that interest has been paid only up to 31st May 1928. I do not attach very much importance to para. 6 that on accounts being taken a similar amount will be found due because it is consistent with the previous discharge of one or more promissory notes and if one or more have been discharged by payment, the particular note executed in the present plaintiffs' favour may have been discharged. Having regard to the written statement as a whole I have come to the conclusion regarding paras. 2 and 3 together, that there is an admission, that all the promissory notes including that executed in the present plaintiffs' favour, were at least in part undischarged at the date the written statement was filed.

7. In these circumstances the defence of limitation fails; learned Counsel for the defendants does not dispute the quantum of the claim and there will therefore be a decree for Rs. 35,833 with interest at the rate provided by the note pending suit. Interest on decree at 6 per cent with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //