GHOURINISSA Vs. S J KIRMANI

JUDGEMENT

(1.) THE defendants in O. S. No. 3077 of 1964 on the file of the City Civil Court at madras are the appellants herein. The suit was instituted by the respondent herein for recovery of a sum of Rs. 6,478/- made up of the principal of Rs. 5,400/- and interest of Rs. 988/ -. The respondent herein is the brother-in-law of one Ghulam mohideen alias Mahboob Basha, who died in 1962. According to the respondent, during the period from 25-6-1958 to 15-9-1958 he advanced moneys amounting to Rs. 6,000 to the deceased, that the deceased had paid only a sum of Rs. 600/on 24-2-1959 and that the balance remains outstanding. It is on the basis of this allegation the suit was instituted for the recovery of the amount mentioned above out of the assets of the deceased in the hands of the appellant herein, the first appellant being the widow of the deceased and appellants 3 to 4 being his children. The suit was instituted on 25-7-1964. Consequently, on the face of it, the suit was barred by limitation. In order to get over this bar of limitation, the respondent pleaded in his plaint that on 27-7-1961, by a post-card, the deceased had acknowledged his liability and that consequently, the suit was not barred by limitation. Subsequently, the respondent herein filed an application, namely, I. A. No. 10172 of 1964, for amendment of the plaint and the said application was ordered on 22-12-1964. In that application the respondent put forward the further contention that the post-card dated 27-7-1961 constituted an express promise to pay the prior debt coming within the scope of Section 25 (3) of the Indian Contract act. The appellants herein denied all knowledge of the borrowing by the deceased from the respondent and put the respondent to strict proof of the borrowing. They also contended that the post-card dated 27-7-1961 would not constitute an acknowledgment of the liability and the suit therefore was in any event barred by limitation. In addition, they put forward the contention that a sum of Rs. 1,000/had also been paid by them towards the liability. On the basis of these pleadings, the learned trial Judge framed the following issues:-

(2.) SINCE we are clearly of the opinion that the suit is barred by limitation, we are not dealing with any other controversy between the parties as to whether there was an actual borrowing and a partial discharge or not.

(3.) AS we have pointed out already, even according to the respondent, the borrowing took place between 25-6-1958 and 15-9-1958. In the plaint itself, the 2-1959 the deceased has paid a sum of Rs. 600/- towards the outstanding leaving a balance of Rs. 5,490/ -. It is this amount with interest the respondent claimed in the present suit. In paragraph 5 of the plaint the respondent had stated that he had been calling upon the deceased for payment and that in response to one such letter, the deceased wrote a post-card dated 27-7-1961 wherein inter alia he had stated that he would pay whatever might be found due as owing by him to the respondent on taking accounts. He reiterated the same position in the said paragraph by stating that in the said letter dated 27-7-1961 the debtor had made an express promise to pay the plaintiff (the respondent herein) whatever might be found due on account taking within the meaning of Section 25 of the Indian contract Act. But the case of the appellants was that the said post-card would not constitute either an acknowledgment coming within the scope of Section 18 of the limitation Act, or an express promise to pay coming within the scope of Section 25 of the Indian Contract Act. Consequently, the only question for consideration is whether the post-card dated 27-7-1961, which has been marked as Ex. A-1 constitutes an acknowledgment of the liability to pay the debt as contemplated by section 18 of the Limitation Act of 1963.