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Sasi Kanta Acharjee Vs. Sonaulla Munshi - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Reported inAIR1929Cal444,121Ind.Cas.412
AppellantSasi Kanta Acharjee
RespondentSonaulla Munshi
Cases ReferredDukhi Sahu v. Mahommad Bikan
Excerpt:
- .....412-7-3). the suit was brought on this mablagbandi and the only point that arises is whether it is barred by limitation. the defence was that the mablagbandi was obtained from the defendant by undue influence ; but the plea was not accepted by the courts below. both the courts below have agreed in holding that the plaintiff's suit is barred by limitation. it is argued on behalf of the appellant that though the debt of which the mablagbandi was made had become barred by limitation at that date, section 19, lim. act, would not apply. there was a fresh start of time from the date of the mablagbandi under section 25(3), contract act.2. it appears to be well-established by authority that there is a difference between an acknowledgment as understood under the limitation act and a promise to.....
Judgment:

1. The facts on which this appeal is based are that the defendant was a gomastha under the plaintiff. The agency terminated in April 1915. In August 1921 there was a mablagbandi signed by the defendant in these words : (in Bangali, the translation of which is as follows : I remain liable to the Sarkar for the sum of Rs. 412-7-3). The suit was brought on this mablagbandi and the only point that arises is whether it is barred by limitation. The defence was that the mablagbandi was obtained from the defendant by undue influence ; but the plea was not accepted by the Courts below. Both the Courts below have agreed in holding that the plaintiff's suit is barred by limitation. It is argued on behalf of the appellant that though the debt of which the mablagbandi was made had become barred by limitation at that date, Section 19, Lim. Act, would not apply. There was a fresh start of time from the date of the mablagbandi under Section 25(3), Contract Act.

2. It appears to be well-established by authority that there is a difference between an acknowledgment as understood under the Limitation Act and a promise to pay as contemplated by the Contract Act. The cases in settling the law on this point which was at one time in a nebulous state have laid down the distinction that mere implication of a promise to pay will not bring an acknowledgment of debt under Section 25, Contract Act, though it would imply a promise to pay under Section 19, Lim. Act. It has been pointed out that in this respect there is a difference between the English and the Indian Laws. Under the English law an implied promise to pay will afford terminus quo for a suit on the debt but under the Indian law that promise must be an express promise. The law and the cases on this point have been discussed in the case of Rambahadur Singh v. Damodar Prosad Singh A.I.R. 1921 Pat. 29, where it was held that mere acknowledment of debt without a promise to pay is insufficient to create a new contract to pay. This view is also supported by two decisions of this Court the judgments of which are to be found in Panchanan Poddar v. Khitish Chandra [1921] 67 I.C. 298 and Khitish Chandra v. Umed Mondal : AIR1925Cal338 . In the last case the learned Chief Justice has observed that a mablagbandi is a good acknowledgment under Section 19, Lim. Act, and, therefore, it preserves any debt due which was not at that time barred by limitation, but in dealing with this matter the Court must also proceed upon the view that mablagbandi is not a promise to pay under Section 25, Contract Act. so as to revive a debt which was barred at the date of the mablagbandi, This point does not require further elaboration.

3. But it has been argued by Mr. Roy appearing for the appellant that the words used in the mablagbandi mean a promise to pay the amount there stated. The words are (in Bengali) which have been correctly translated by the learned Subordinate Judge as 'I remain liable to the Sarkar for the sum of Rs. 412-7-3.' In our opinion, these words do not support the contention that there is an express promise to pay. The most that it can be said to mean is that the debtor admits his liability for the amount and declares his indebtedness. If it were an acknowledgment under Section 19, Lim. Act, it might probably have been successfully argued that it implies a promise to pay. It does not satisfy the requirements of Section 25, Contract Act. The law on this point will be found discussed in Pollock and Mulla's Contract Act, 5th Edn. p 197, et seq.

4. It has also been argued that the article of the Limitation Act, applicable to this case should be Article 64, Lim. Act, which deals with money found to be due on accounts stated between the plaintiff and the defendant. As was pointed out in the Full Bench decision in the case of Dukhi Sahu v. Mahommad Bikan [1884] 10 Cal. 284 an account stated has a definite technical meaning where there are cross-demands which are settled between the parties. There is nothing in this case to show that there was any such mutual dealing between the parties the relation between them being that of principal and agent.

5. The view according to the facts of this case taken by the Courts below is correct and this appeal is dismissed with costs.


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