SHADI RAM Vs. PRABHU

JUDGEMENT

(1.) THIS revision application arises from a money suit in which by reason of Section 102, Civil P. C. , no second appeal lies.

(2.) THE suit was to recover an amount of Rs. 300/ -. The defendant raised a number of contentions which need not be mentioned. His main ground was that the debt dated back to the year 1928 and was the debt of his father and that any acknowledgments given by him (defendant) were not sufficient to keep alive the cause of action up to the date of the present suit. It appears that the original debt was incurred in February 1928 and was for amount of Rs. 142/ -. It appears that there was an acknowledgment about one month later for Rs. 250/-, the difference representing interest. On the 6th of March 1931, there was another acknowledgment for Rs. 300/ -. On the 1st of March 1934 there was another acknowledgment for Rs. 300/-, Rs. 100/- being shown to have been paid, and on the 24th of March 1937 there was again an acknowledgement for Rs. 300/-, and there were later acknowledgements, all within three years of each other. The acknowledgement of the 24th of March 1937, however, was made more than three years after the acknowledgement immediately before it. The trial Court decided the suit in favour of the plaintiff mainly it would seem on the ground that there was no reason why a false claim should be made. On the question of limitation it merely looked at the last acknowledgment of the year 1943 and finding the suit to be within three years of the date of this acknowledgement held the suit to be within time. In appeal the learned Senior Subordinate Judge considered what really was the main question in the case, namely whether the acknowledgement of the 24th of March 1937 could be held to be a promise to pay in writing and therefore came within Clause (3) of section 25 of the Indian Contract Act; for, if the acknowledgement could not be held to be a promise to pay in writing then the cause of action had ceased to be enforceable for all later acknowledgements were in identical terms with the acknowledgement of the 24th of March 1937.

(3.) THE promise to pay necessary to bring a case within Clause (3) of Section 25 of the Indian contract Act must be in writing. Under Section 9| of the Contract Act such a promise is an express promise. I should have thought it beyond question that words such as "i promise to pay" or "i undertake to pay" must appear in the document. It is urged, however, that the Punjab High court has taken a different view, and I am referred to 'shanti Parkash and another v. Harnam Das and others', ILR 19 Lah 193 FB. That was a case where there was not only an acknowledgement of balance but also a statement of future interest payable, although the word 'payable' did not find place in the written agreement. It was held by the Full Bench, although I think with considerable reluctance, that in view of previous authority of the Lahore High Court it must be held that this was sufficient to bring the agreement within Section 25 (3) of the Contract Act. In a later case - 'shiv Ram-Punnun Ram v. Faiz', (ILR 23 Lah 282), the question came up whether an acknowledgement containing words such as "baqi rahe lene lekha kar ke", "baqi rahe", "baqi rahe lene", "baqi rahe dene", "baqi lene" or "baqi dene" amounted to mere acknowledgment chargeable with stamp duty of one anna only under Article 1, Schedule I of the Indian Stamp Act or constituted an agreement or bond chargeable with duty under Articles 5 and 15 respectively of the First Schedule. In the judgment of this later case, emphasis was laid upon the necessity of dealing with each case on its own merits. It was held that words such as "baqi rahe", "baqi dene" and the other expressions I have set out amounted to mere acknowledgments. They did not import a promise to pay and therefore did not fall within the category of agreements or bonds.