V BAPU KALINGARAYAR Vs. RAJAM

JUDGEMENT

(1.) THE defendant, who failed in the Lower Appellate Court, is the appellant. The respondents filed the suit for the recovery of money due on the promissory note ex. A-1 dated 26-8-1966 executed by the appellant and his brother's son chockalingam in favour of one Ramanatha Iyer for Rs. 3,100/- alleged to have been advanced by the respondents, according to whom Ramanatha Iyer was their power of attorney agent. The respondents filed the suit through another power of attorney agent on 17-1-1972 and relied upon the letter Ex. A-2 dated 14-1-1969 given by the appellant to them as an acknowledgment of liability for the purpose of limitation.

(2.) THE appellant's defence was that the letter Ex. A-2 was executed only in Jan. 1970 after the claim had become barred by limitation, though it is dated 14-11969, and that the suit is, therefore, barred by limitation. After arguments were advanced and judgment was reserved the respondents filed an application for amendment of the plaint on the date on which the suit was posted for judgment. The amendment prayed for was to the effect that the appellant had acknowledged the liability by another letter Ex. A-3 bearing the postal date seal 23-8-1968 and addressed to Ramnatha Iyer and that, in any event, Ex. A-2 cannot be construed as an acknowledgment and it constitutes an express promise to pay the barred debt and it is not a void agreement in view of Section 25 (3) of the Contract Act. The trial Court dismissed that application and another application filed on the same date to reopen the case observing that the proposed amendment seeking to rely upon Ex. A-2 as an agreement to pay a barred debt introduces a new case, which has not been pleaded in the original plaint. The learned District Munsif found that Ex. A-2 had been executed in Jan. 1970 as contended by the appellant more than 3 years after the date of the suit promissory note Ex. A-1 and would not save limitation and he dismissed the suit without costs holding that the suit was barred by limitation. But on appeal, the learned District Judge, agreed with the trial Court in coming to the conclusion that Ex. A-2 was executed only in Jan. 1970, but however, held that it amounted to an agreement to pay the barred debt and would enable the respondents to recover the amount in view of Section 25 (3) of the Contract Act and he allowed the appeal with costs throughout.

(3.) TWO points were urged before me by Mr. T. R. Srinivasan, the learned counsel for the appellant and they are: (1) that the letter Ex. A-3 bearing the postal date seal of 23-8-1968 is addressed to Ramanatha Iyer and has not been relied upon as an acknowledgment of liability for the purpose of limitation and the letter Ex. A-2 having been admittedly obtained only in Jan. 1970 would not save limitation and (2) that the respondents, who are not the payees in the promissory note, Ex. A-1, are not entitled to maintain the suit on the promissory note. The letter Ex. A-3 had not been relied upon in the Lower appellate Court even in the memorandum of grounds of appeal and the learned district Judge has not relied upon it, as saving limitation in his judgment where he has proceeded on the basis that Ex. A-2 would amount to a promise in writing, signed by the person charged therewith to pay wholly the debt of which the creditor might have enforced payment but for the law of limitation of suits as required by Section 25 (3) of the Contract Act and that the suit is, therefore, in time. The learn-ed counsel for the appellant submitted that there is no allegation in the plaint that by Ex. A-2 the appellant had promised to pay wholly or in part the promissory note debt, that the claim in respect whereof would otherwise be barred by limitation and that it is, therefore, not open to the Court to give relief to the respondents on the basis of Ex. A-2. But the learned counsel for the respondents relied upon some decisions which would be referred to presently and submitted that the trial Court ought to have allowed the amendment prayed for and that it is open to the court to take note of Ex. A-2 as a promise to pay the barred debt and give relief to the respondents. The first decision relied upon by the learned counsel for the respondents in this connection is of a Bench of the Lahore High Court in Parmeshri Das v. Fakiria (60 Ind Cas 772) ; (AIR 1922 Lah 230) where the learned Judges had observed: