RAO AND SONS Vs. BIJAYALAXMI DAS

JUDGEMENT

(1.) THE plaintiff's suit was for recovery of Rs. 690/- on the basis of a promissory note Ext. 1 executed by late Kasinath Das, an advocate, on 2-1-41 for Rs. 660/ -. He paid Rs. 630/- in six instalments, the last payment being Rs. 30 on 14-2-57. On 13-2-60 the executant wrote the letter Ext. 3 acknowledging the loan payable under Ext. 1. The defendants are the heirs of late Kasinath Das. Their defence is that the. handnote Ext. 1 was executed on 2-1-40, and not on 2-1-41. The payment made on 14-2-57 towards the suit handnote is challenged and it is asserted that this payment was made towards the dues of a loan incurred by late gopinath Das in which Kasinath Das was his surety. Ext. 3 is said to be not genuine. It is alleged that late Kasinath Das was appearing as a junior with late M. S. Rao in many cases. He used to send blank papers with signatures authorising late M. S. Rao to appear on his behalf. One such paper containing the signature of late Kasinath Das has been used for fabrication of Ext. 3. There was no acknowledgment and the suit was barred by limitation.

(2.) TO have a clear picture, it would be profitable to note the various pay-ments with dates. <FRM>JUDGEMENT_18_TLORI0_1969Html1.htm</FRM> The learned trial court held that Rs. 660/- was borrowed by late Kasinath Das under Ext. 1 on 2-1-41, and not on 2-1-40 and that the payment of Rs. 30/- on 14-2-57 did not relate to the suit handnote, but related to the handnote under which Gopinath Das incurred the loan. He further held that the letter Ext. 3 dated 13-2-60 sent by Kasinath Das acknowledging the loan was genuine. Having held that the suit handnote was barred by limitation as the payment on 14-2-57 did not relate to it, he dismissed the suit. He also held that Ext. 3 did not constitute a fresh agreement within the scope of Section 25 (3) of the Contract Act. The learned lower appellate court recorded the following findings :--

(3.) THE following questions arise for consideration on the basis of arguments advanced by the learned counsel for the parties:-