R DEVARAJAN Vs. CANARA BANK KOTTURPURAM BRANCH MADRAS

JUDGEMENT

(1.) THE second defendant in O.S.No.2055 of 1992 on the file of the XII Assistant Judge, City Civil court, Madras, has filed this revision against the dismissal of I.A. No. 1851 of 1992, seeking leave to defend the above said suit filed under Order 37 of the civil Procedure Code. THE said suit by the respondent-Bank is for the amount due under promissory note executed on 29.9.1983 by both the first and second defendant, as co-promissors. Though the suit promissory note is dated 29.9.1983, the suit was fled only on or about 14.3.1992. In order to save limitation, the plaint alleges that there was two acknowledgments of liability by the first defendant, one on 15.4.1986 and another on 3.4.1989. Admittedly, if those acknowledgments are true, the suit is within time. But the contention taken in the above said interlocutory application is that the said acknowledgments will not bind the second defendant. No doubt, learned counsel for the petitioner submit that the supporting affidavit mentions about the acknowledgments only as alleged acknowledgments, but the affidavit does not specifically say anywhere that the first defendant has not signed those acknowledgments. In other words, the truth of first defendant executing the said acknowledgment letters had not been denied specifically by the second defendant in his supporting affidavit to the above said Interlocutory application. All that is stated in the said affidavit is that the acknowledgment by first defendant will not bind the second defendant.

(2.) BUT along with the plaint while filing the suit promissory note, the plaintiff has also filed the letter of the same day, namely, 29.9.1983 given by both the defendants 1 and 2. In fact, the said letter is part of the same document, containing the promissory note. That letter is addressed to the plaintiff-Bank in which inter alia both the defendants state as follows: "Further in the matter of making payments towards this debt or acknowledging this debt or any part thereof as and when called upon by the Bank to do so far the specific purpose of saving limitation. I/we declare that the payment or acknowledgment made or given by any one or more of us shall be binding on all of us jointly and or severally and that the said payment and acknowledgment so made or given by one or more of us shall save limitation against, all of us jointly and or severally for the purpose of Law of Limitation".