HARKUBAI FAKIRCHAND SHET Vs. SHANKERBHAI ZAVERBHAI GUJARATI

JUDGEMENT

(1.) THIS appeal by the plaintiff in a suit to enforce payment under a promissory note has led to an interesting discussion of the law of limitation. On the merits the plaintiff has succeeded in the Court below; but his suit has been dismissed as barred by limitation and not saved by the provisions of Section 20 of the Indian Limitation Act, 1908.

(2.) ON January 2, 1933, the promissory note for Rs. 5,400 now sued upon was executed by defendant No.2 on behalf of the suit shop. It contains three endorsements, of which the last is an endorsement of the payment of Rs. 75 on October 13, 1935, in the handwriting of defendant No. 2. ON October 13, 1938, exactly three years after, the present suit was brought in the Nasik Court. ON November 29, 1939, it was held by that Court that the Court had no jurisdiction, and the plaint was ordered to be returned. ON Saturday December 9, 1939, the plaint was endorsed as returned to the plaintiff's pleader, and on Monday, December 11, 1939, it was re-filed in the Court at Nadiad. The point of limitation taken in the Court below arose out of Section 20 of the Indian Limitation Act. Section 20, so far as it is material, provides that "Where interest on a debt is, before the expiration of the prescribed period, paid as suck by the person liable to pay the debt, or by his agent duly authorised, or where part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorised, a fresh period of limitation shall be computed from the time when the payment was made;" and then follows a proviso with which we are not now concerned. The plaint stated that the payment of Rs. 75 was credited towards interest but did not in terms say that interest had been "paid as such" within the meaning of Section20. The written statement of defendant No.2 denied that it was paid towards interest and pointed out that the endorsement did not say that it was paid towards interest. The trial Court held that it could not be regarded as a payment towards interest as such, and it also held that there was no evidence from which the Court could come to the conclusion that the payment was made towards principal. ON the contrary it pointed out that the plaintiff himself in his plaint having stated that it was credited towards interest it would be difficult for him to establish a case of its having been paid towards principal. ON that ground alone the suit was dismissed, and the plaintiff now comes in appeal.

(3.) ALTERNATIVELY it is contended on behalf of the plaintiff that the payment can be treated as an acknowledgment within the meaning of Section 19, and for this reliance was placed on Ganesh v. Dattatraya (1922) 25 Bom. L.R. 144 where payments endorsed in similar terms to the payment in this suit were held to save limitation under Section 19.The endorsement in question is simply an endorsement that "Rs. 75 was paid on October 13, 1935, in the hand of Motibhai Sd. Shankarbhai Javerbhai, the handwriting of Motibhai Javerbhai" (Shankarbhai being defendant No.1 and Motibhai being defendant No.2). There is in terms no acknowledgment of any liability, nor any promise to pay the unpaid balance. But the authority of Ganesh v. Dattatraya has been doubted in a later decision of this Court, Kesharmal Indajishet v. Narayan Vidyadhar (1941) 44 Bom. L.R. 427 where it was pointed out that an acknowledgment of a part payment does imply a liability to pay something more and is therefore an acknowledgment of the right of the creditor to recover something more, and whether in any particular case the endorsement amounts to an acknowledgment must depend on the language of the endorsement. It is pointed out that a statement that something has been paid "in respect of a promissory note" does not involve any admission that something more remains due on the promissory note. On the other hand, a payment made " in part payment" or " towards " as distinct from "in respect of" a promissory note does imply an admission that something more is due. In the present case it is not possible to infer any admission that anything more was due, though in fact it is probable that a good deal more was due. It follows that on this statement of the law neither Section 19 nor Section 20 of the Indian Limitation Act will help the plaintiff.