RATANCHAND DAMRUMAL Vs. KHET SINGH

JUDGEMENT

(1.) THIS is an appeal from a decision of the Civil Judge First Class Guna reversing the judgment and decree of the Tappa Court Chanderi, and dismissing the Plaintiff -Appellant's suit for the recovery of Rs. 362/ - with interest thereon on the basis of an acknowledgment dated 8 -5 -44. The Defendant Respondent resisted the suit on several grounds which are not material here. His main ground was that the acknowledgment sued upon was in respect of a debt barred by time and did not give any fresh cause of action to the Plaintiff. This contention of the Defendant was accepted in appeal by the learned Civil Judge of Guna.

(2.) THE acknowledgment dated 8 -5 -44 which forms the basis of the suit is signed by the Defendant Khetsingh and says "Balance struck. Rs. 362/ - due". Mr. Bhagwandas Gupta argued that the debt dated back to the year 1927 when in the Plaintiff's account books Rs. 1114/ - were shown as due from the Defendant on Miti Kartik Vadi 2 Samvat 1984 (Ex.P. 6); that this amount comprised of Rs. 525/ - advanced to the Defendant on the basis of a bond and other cash payments; that there was an acknowledgment on Miti Savan Sudi 15 Samvat 1985 for Rs. 1001/ - (Ex.P. 5); that on 2 -11 -30 the Respondent signed a second acknowledgment for Rs. 1251/ - (Ex.P. 4). On 30 -10 -36 there was another acknowledgment for Rs. 925/ - (Ex.P. 3) and again on 27 -10 -42 there was yet another acknowledgment for Rs. 852/ - (Ex.P. 2), and later on in 1944 the Respondent signed the acknowledgment in suit on 8 -5 -44 (Ex.P. 1). It was said that the first acknowledgment of Miti Sawan 15 Samvat 1985 was within six years of the dates of the loans given to the Respondent i.e., within the period prescribed by the Gwalior Limitation Act for a valid acknowledgment and that the later acknowledgment were all within six years of each other and that, therefore, the acknowledgment of 8 -5 -44 could not be said to be one in respect of a debt barred by time.

(3.) IT was then stated that the acknowledgment of 8 -5 -1944 was a promise to pay in writing within Section 25(3), Contract Act and the Plaintiff was entitled to sue on it even if the amount shown in the acknowledgment represented a time barred debt. This point also does not help the Appellant. The promise to pay necessary to bring a case within Section 25(3), Contract Act must be an express promise, which is absent in the present case. The words of the acknowledgment of 8 -5 -44 amount to a mere acknowledgment and do not import a promise to pay. No doubt as held by the Privy Council in 'Maniram v. Rupchand', 33 Cal 1047 (PC) (A) an unconditional acknowledgment by a debtor implies a promise to pay. But to take an implied promise to pay as a "promise in writing to pay" for the purposes of Section 25(3), Contract Act is to make Section 19, Limitation Act otiose see 'Tulsiram v. Zaboo' : A.I.R. 1949 Nag 229 (B); 'Shadi Ram v. Prabhu' : AIR 1953 P&H 28 (C). In the absence of such words as 'I promise to pay' the acknowledgment dated 8 -5 -44 cannot be regarded as one falling under Section 25(3), Contract Act and sufficient to sustain the Appellant's claim.