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Panchanan Poddar and anr. Vs. Khitish Chandra Alias Bhola Saha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in67Ind.Cas.298
AppellantPanchanan Poddar and anr.
RespondentKhitish Chandra Alias Bhola Saha and ors.
Excerpt:
contract act (ix of 1872), section 25(3) - acknowledgment of barred debt--implied promise to pay--limitation act (ix of 1908,), section 19--renewal of barred debt. - .....the meaning of section 25, clause (3) of the contract act. that clause, so far as it is pertinent to the present enquiry, says that 'an agreement made without consideration is void unless it is a promise made in writing and signed by the person to be charged therewith * * * to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitations of suits.' it is clear that such an agreement must be a promise to pay a barred debt. the hatchita as it stands is merely an unconditional acknowledgment of a debt which, at the date it was executed, was barred, if effect is given to such an acknowledgment, as giving rise to an implied promise to pay, the provisions of the contract act would make the condition precedent of the debt being an existing.....
Judgment:

1. One Mohim Chandra Poddar and the plaintiffs were partners in a business. On accounts being adjusted in 1312 Mohim Chandra Poddar executed a hatchita in favour of the plaintiffs on the 2ad of Baisakh 1312 for Rs. 227-11-9. This hatchita was renewed on the 7th Magh 1315 by another hatchita in which this amount is mentioned as due. It was subsequently renewed several times in 1318, 1321 and, lastly, on the 25th Pous 1324. The plaintiffs brought this suit being his cause of action on the hatchita executed in 1324.

2. The learned Subordinate Judge of Pabna, exercising Small Cause Court Jurisdiction, dismissed the plaintiffs' suit on the ground that on the 7th Magh 1315 when the hatchita was renewed for the first time the debt had already become time-barred and so it could not operate as an acknowledgment under Section 19 of the Limitation Act.

3. It is argued in this Rule, which has been obtained by the plaintiffs, that the hatchita of the 7th Magh 1315 ought to be treated as a contract within the meaning of Section 25, Clause (3) of the Contract Act. That clause, so far as it is pertinent to the present enquiry, says that 'an agreement made without consideration is void unless it is a promise made in writing and signed by the person to be charged therewith * * * to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitations of suits.' It is clear that such an agreement must be a promise to pay a barred debt. The hatchita as it stands is merely an unconditional acknowledgment of a debt which, at the date it was executed, was barred, If effect is given to such an acknowledgment, as giving rise to an implied promise to pay, the provisions of the Contract Act would make the condition precedent of the debt being an existing debt as laid down in Section 19 of the Limitation Act totally nugatory. We are, therefore, of opinion that the learned Judge is right in his view that the present suit is barred by limitation.

4. The Rule is discharged with costs to the appearing opposite party. We assess the hearing fee at one gold mohur.


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