M RAJAGOPAL Vs. K S IMAM ALI

JUDGEMENT

(1.) Defendants 2, 3, 5, 6 and 7 are the appellants in this appeal. Original 1st defendant died pending suit. 4th defendant is his mother, 5th defendant his wife and defendants 6 and 7 his minor children. The suit from which this appeal arises was filed to recover amounts due to the plaintiff on 5 promissory notes. The plaintiff's case was that the amounts as per the promissory notes were taken for the purpose of a partnership firm, K. M. S. Bus Service by name run by defendants 1, 2 and 3 of which the 1st defendant was the Managing Partner. Four promissory notes were executed by the 1st defendant and the 5th promissory note by defendants 1 and 2. Defendants contended that the suit was barred by limitation and in any case the partnership firm cannot be made liable for the promissory note amounts. The trial court held that the plea of limitation was not available to the defendants since there was an acknowledgment of the liability as per the promissory notes by defendants 1, 2 and 3 in an agreement dated 27-12-1970 to which they were parties. It was also held that all the defendants were liable for the suit amount. Hence this appeal.

(2.) The details of the promissory notes are as given below; <FRM>JUDGEMENT_29_TLKER0_1980Html1.htm</FRM> Though promissory notes Nos. 1, 3, 4 and 5 were executed in favour of the plaintiff's mother, wife, sister and mother (?) all of them were subsequently endorsed by the respective promises in favour of the plaintiff. It is not disputed that the suit will be in time, if the agreement Ext. A8 contains an acknowledgment of the liability. The appellants' case is that it does not amount to an acknowledgment in law. Ext. A8 is an agreement entered into by defendants 1 to 4 in the presence of P. Ws. 1 and 2 admitting their liability to pay the amounts due to the plaintiff. The appellants' counsel submits that the statements contained in Ext. A8 will not in law create an acknowledgment of the liability to save limitation. We will examine the statements contained in Ext. A8 presently to find out whether it amounts to an acknowledgment.

(3.) The court below has discussed the genuineness of Ext. A8. P, Ws. I and 2 have proved it. They were present at the time when the agreement was executed. We do not find any reason why "this finding should not be confirmed.