UNITED BANK OF INDIA Vs. MOHD YOUSUF

JUDGEMENT

(1.) These C.R.Ps. can be disposed of by a common order since common question of law arises fot decision in this case. Though plaintiff is same defendants are different persons. The petitioner is the plaintiff-Bank. It laid the suit on the foot of a promissory note for the recovery of the amounts lent to the respondents. For appreciationof the point raised it is necessary to state few facts in brief arising in S.C.No. 889/80 out of which C.R P No. 4630/81 arises for decision. Therein the respondents executed a promisory note on 1-10-1976 agreeing to repay the amount on or before 1-10-1979 by instalments. They also hypothecated the goods. It is the case of the petitioner that they failed to pay the sum. When they were approached they acknowledged the liability by endorsement Ex. A-4 dated 24-1-1979. Therefore the suit was laid on 30-8-1980 within the period of limitation. The respondents pleaded not merely denying the execution of the promissory note but also bar of the suit. They contended that they did not sign the acknowledgement Ex. A-4. It is only a rubber stamp affixed by the plaintiff. It is not authorised by them. It is not binding on them. Therefore the suit does not escape the limitation on which the petitioner seeks to rely. The trial court framed several issues of which it accepted the bar of limitation and dismissed the suit on that ground. Assailing the legality of the decree of the trial court the CRPs have been filed. As stated earlier the common question of law arises in chese C.R.Ps. The question is whether the rubber stamp endorsement is an acknowledgement within the meaning of section 19 of the Limitation Act 1963 (for short the Act) section 19 postulates thus:-

(2.) A reading of the Section 19 posits that where payment on account of a debt is made by the person liable to pa the debt a fresh period of limitation shall be computed from the time when the payment was made. The proviso thereto adumbrates that when an acknowledgment or payment is to be relied on that must be in the writing of or in a writing signed to the person making the payment. When such payment is made than the liability will be fastened on the maker thereto and that the limitation would be computed as an acknowledgement of the liability as subsisting debt from that date. Therefore, the question is whether the rubber stamp endorsement affixed on Ex. A-4 viz. "I do hereby authorise the Bank to credit the proceeds of this account to my loan account at any time is an acknowledgement. This endorsement is admittedly a rubber stamp endorsement without having been signed by the maker thereto. The question is whether this could be construed to be an acknowledgement. The proviso to Section 19 in unequivocal and express language, posits that it must be in the writing of or in a writing signed by the person making the payment. Therefore it is mandatory to revive the bar of claim; to be an acknowldgement it must be in the handwriting or in a writing signed by the parson making the payment. When the writing is not signed by the person or is not in the writing of the person making the payment then it cannot under any stretch of the imagination be construed to be an ackdowledgement within the meaning of the proviso to Section 19 of the Act. Therefore this rubber stamp endorsement cannot baconstrued to be an acknowledgment and once it is excluded since the suit pronote was executed on 1-10-1976 and the suit, having been filed beyond three years, is definitely barred by limitation. Therefore the trial court is perfectly legal in holding that the suit is barred by limitation and correctly dismissed the suit.

(3.) Yet another point argued by the Iearned counsel for the petitioner is that when the signature on Ex. A-4 is admitted it is for the respondent to disprove that they did not sign agreeing with the endorsement and the rubber stamp. I am unable to agree. It is for the petitioner to establish that on the date when Ex. A-4 was executed and signed by the respondents, the contents in the rubber stamp were available on that date and having seen them they have signed. But in this case, unfortunately no such step has been taken. Therefore I cannot go into the question. It is next contended that under Section 17 of the Contract Act the bank has got the banker's lien on the Hypothecate and that question was considered in some of the cases, but wrongly rejected. Since no pleading has been raised in this regard in the plaint, I decline to go into the question though it was dealt with by the trial Court.