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Sarifun MandalIn and ors. Vs. Feradoul Khatun - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal578,76Ind.Cas.603
AppellantSarifun MandalIn and ors.
RespondentFeradoul Khatun
Cases ReferredJalim Singh v. Choonee Lal
Excerpt:
limitation act (ix of 1908), section 19. schedule i, articles 64, 115 - hatchitta containing adjustment of account--promise to pay--limiiatior--reciprocity of demands--civil procedure code (act v of 1908), order viii, rules 2, 4--evasive denials by defendant. - .....exhbit (1) in this case, was a mere acknowledgment of a liability under section 19 of the indian limitation act or whether it was an adjustment of accounts between the parties and a promise to pay the amount arrived at on the adjustment as being a sum due and owing by the defendants. the date of the adjustment, which is exhibit i, is the 26th october 1914 corresponding to the 9th kartik 1321 b.s. the suit was instituted on the 19th november 1917. the defendants who lost in the two courts below argued that it was a mere acknowledgment of a liability under section 19 of the indian limitation act; and that, inasmuch as it has not been proved by the plaintiff that any portion of the account taken into consideration at the time of the adjustment had not been barred on the date of the.....
Judgment:

1. The point for determination in this appeal is whether a certain document, Exhbit (1) in this case, was a mere acknowledgment of a liability under Section 19 of the Indian Limitation Act or whether it was an adjustment of accounts between the parties and a promise to pay the amount arrived at on the adjustment as being a sum due and Owing by the defendants. The date of the adjustment, which is Exhibit I, is the 26th October 1914 corresponding to the 9th Kartik 1321 B.S. The suit was instituted on the 19th November 1917. The defendants who lost in the two Courts below argued that it was a mere acknowledgment of a liability under Section 19 of the Indian Limitation Act; and that, inasmuch as it has not been proved by the plaintiff that any portion of the account taken into consideration at the time of the adjustment had not been barred on the date of the adjustment, the plaintiff should not be heard to rely on the document as an acknowledgment of a liability under Section 19. It is further argued by Mr. Baranashibashi Mukerji on behalf of the defendants that Article 64 of the Indian Limitation Act is not applicable to the document in question inasmuch as the adjustment of account contained in Exhibit I is not 'accounts stated' between the parties, there being no reciprocal demands by or against the parties, set off one against the other, at the time when the adjustment was arrived at. It is also argued on behalf of the defendants that the document itself is not such from which the promise to pay could be ascertained, the words 'Balance due' being insufficient for the purpose as has been held in various cases; and, lastly, that the plaintiff has not shown that he could, on the facts of this case invoke the provisions of Section 25 of the Contract Act. So far as the first point is concerned, it is, on the document in this case, really unnecessary to go into the matter at any length, but if it were, it is sufficient to observe under the rule of pleadings as they obtain in the present Civil Procedure Code, that, having regard to the allegations made in the plaint, it was clearly the duty of the defendants to particularise in their defence all points either of law or of facts which they took by way of defence. In this connection, attention may be drawn to the provisions of Order VIII, Rule (2), Civil Procedure Code, It is maintained, hew ever, that the plea of limitation contained in the written statement is sufficient to cast upon the plaintiff the duty of showing that his suit is not in any way barred by the Statute of Limitation. No doubt, the proposition in the abstract is true; but the argument takes no notice whatsoever of Order VIII, Rule (4) where evasive denials are deprecated and where the points of defence are required to be stated specifically and clearly.

2. With reference to the second point, namely, whether the plaintiff's suit is one which is governed by Article 64, it is again unnecessary, on the facts of this case, to express any decided opinion, cases under Article 64 of the Indian Limitation Act are many and are not without conflict. Whether in every case to which Article 64 is attracted it is necessary for the plaintiff to show that there were reciprocal demands by and against the parties is a point which, in our opinion, on the facts of this case, it is unnecessary to go into. It may be observed, however, that at least in two cases decided in this Court the view has not been taken that in every case where Article 64 is made applicable, there must always be a reciprocity of demands. We have, on the facts of this case and on the document which was produced before us and which we have examined, come to the conclusion that the document taken as a whole, really amounts to what is known as a hatchitta. First of all, there is a statement of accounts, or in other words, ascertainment of amounts, between the parties. It is stated further in the document itself that the ascertainment or adjustment of accounts was arrived at in the presence of both parties.

3. In the third place, it is stated that the amount found on adjustment of accounts remained due. and owing by and from the debtor who is defendant in this case. Lastly, the adjustment of accounts is stamped and signed by the debtor. We must attach some meaning to the fact that a stamp is affixed to the document and that the stamp has been defaced. We have, on consideration of the document in question, come to the conclusion that it insists in itself a distinct and an unqualified promise to pay the amount found due on an adjustment of accounts. That being so, Article 115 of the Indian Limitation Act which relates to compensation being payable to one of the contracting parties for a breach of a contract is, in our opinion, the appropriate Article to be invoked for the purposes of this case.

4. An elaborate argument, however, is founded on the question as to whether, there being this promise to pay extracted from the document in question, it conforms to all the requirements of Section 25 of the Contract Act. Here, again, the plaintiff may well answer that, that surely, was a point which ought to have been taken specifically in the written statement and, at any rate, should have been taken in the Courts below. We think, therefore, that there is no substance whatsoever in the points which have been argued before us and we think that the appeal fails and must be dismissed with costs.

5. We may observe that the view taken above is in conformity with the view taken by Sir Lawrence Jenkins and Mr. Justice Woodroffe in the case reported as Jalim Singh v. Choonee Lal 11 Ind. Cas. 540 : 15 C.W.N. 882.


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