RAJARAJESWARI AMMAL Vs. S. SANKARANARAYANA AIYAR AND ANR.

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the first respondent in the Court of the Subordinate Judge of Tinnevelly to recover a sum of Rs. 16,350 -14 -8 in respect of two promissory notes for Rs. 18,000 (Ex P -1) and Rs. 3,400 (Ex. P -3) respectively executed on 30th October, 1922 and 18th August 1927, by the father of the first defendant (the appellant before us) in favour of the second defendant. The plaintiff is the younger brother of the second defendant and the moneys due under the promissory notes belonged to the joint family of which they were members. There was a partition in 1929 and thereafter the plaintiff and the second defendant became each entitled to a moiety of the amounts due under the two promissory notes. On 28th June, 1943, the second defendant made an endorsement in favour of the plaintiff for half of the amount due in respect of each of the promissory notes. The plaintiff instituted the present suit on the 1st July, 1943.

(2.) IN the trial Court there were two main defences : (1) discharge ; and (2) limitation. The first defendant pleaded certain payments of which endorsements were not to be found on the promissory notes but such payments were not proved in the Court below. Mr. Sitarama Rao, the learned Counsel for the appellant first defendant, has not challenged the correctness of the finding of the lower Court rejecting those payments.

(3.) ANOTHER contention of the learned Counsel for the first defendant was confined to the promissory note, Ex. P -3. Assuming that the proper endorsement in respect of this promissory note is Ex. P -1(o) nevertheless, so the argument ran, the endorsement is not proper because the interest acknowledged by that endorsement is stated to be the interest due from 2nd April, 1937, to the end of 1st May, 1937, whereas it is clear from the prior endorsement dated 30th October, 1937,that interest in respect of that promissory note had been paid till the end of October, 1937. It was contended that as the endorsement mentioned that the interest paid was for a particular period and actually no interest was due in respect of that period the payment cannot save limitation under Section 20 of the Act. In our opinion, there is no substance in either of the contentions and they are answered by the plain language of Section 20 as it stood before the amendment of 1942. All that is required under Section 20 is that there should be a payment and that payment should be towards interest as such. The payment must be by a person liable to pay the debt or by his agent duty authorised, and the acknowledgment of the payment should be in the writing of or signed by the person making the payment. In our opinion it is not permissible to read into the section other conditions such as that the interest should be for any particular period or that the acknowledgment of the payment should itself mention that the payment is for interest for any particular period. It has been held that evidence can be given apart from the endorsement itself to show that a particular payment was towards the interest due on a debt vide Kandaswami Mudaliar v. : AIR1936Mad848 . The two things essential therefore are the payment of interest as such and an acknowledgment of the payment in the handwriting of or in writing signed by the person making the payment. If evidence aliunde is admissible to prove that a particular payment was for interest on a particular debt it follows that evidence is equally admissible to show that in this case the endorsement made on Ex. P -1 was an acknowledgment of the payment of interest due in respect of Ex. P -3, and likewise in respect of the other endorsement. As regards the contention that no interest was payable for the period expressly mentioned in the endorsement we consider that as undoubtedly the interest which was due and payable in respect of the promissory note, Ex. P -3 on the date of the payment in question was considerably more than the amount actually paid it would not really matter that a mistake was committed in mentioning the period for which the interest was paid. If actually the interest for that period had already been paid the debtor would get a credit for his payment towards the balance of interest still due and payable by him. This, however, would not prevent the payment and the acknowledgment from being relied upon to save the claim from being barred by limitation.