BRIJ BIHARI PRASAD Vs. BIR BAHADUR RAI

JUDGEMENT

(1.) This is an appeal by the plaintiffs who instituted a suit for recovery of Rs. 4,305.44 from the defendant under the following circumstances. On the 30th Bhado 1360 Fasli, corresponding to 23rd September, 1953, the defendant took a loan from the plaintiffs of a sum of Rs. 2601/8/-in cash. Again on the 11th Baisakh 1361 Fasli, corresponding to 29th April, 1954, the defendant took a loan from the plaintiffs of Rs. 70 in cash and grains. Thirdly, on the 18th Kuar 1362 Fasli, corresponding to 19th October, 1954, the defendant took 5 maunds of paddy from the plaintiffs valued at Rs. 50. Thereafter, on the 1st Bhado 1362 Fasli, corresponding to 4th August, 1955, there was an accounting between the parties, and as a result thereof, the amount due to the plaintiffs was found to be Rs. 3,370/6/3, that is to say, Rs. 2,721/8/- as the principal sum advanced and Rs. 648/14/3 on account of interest up to the date of the accounting. The results of the accounting were incorporated in a chitha (Ext. 4) executed by the defendant on the same day in the following terms:

(2.) The defendant raised various pleas in defence. He denied having taken the loans from the plaintiffs or that there was any accounting, as alleged in the plaint He averred that he used to take loans from the plaintiffs about eight or ten years previously and his thumb impression existed on a blank page of the plaintiffs' Bahi and that pace of the Bahi appeared to have been converted into the chitha (Ext 4) and made the basis of the present suit. The reason for making such a false claim against the defendant was alleged to be that he had refused to depose for one Harihar Mahto who was involved in a dacoity case and who was on friendly terms with the plaintiff No 1.

(3.) The Learned Additional Subordinate Judge, who tried the suit found the plaintiffs' case to be true and held that the plaintiffs were entitled to a decree for the amount claimed on the basis of the chitha (Ext. 4). In appeal, however, the learned Additional district Judge has set aside the decree and dismissed the suit. The learned Judge accepted the plaintiffs' case that the chitha (Ext. 4) was duly executed by the defendant after the accounting which took place between the parties on the 4th August 1955 in respect of the three items of loan specified there in which had been taken by the defendant from the plaintiffs on the three relevant dates. But the learned Judge dismissed the suit on the ground that the chitha (Ext 4) could not form the basis of the present suit since it amounted to a mere acknowledgment of the defendant's liability and not to a promise to pay on the part of the defendant as contemplated by Section 25(3) of the Contract Act. Being thus aggrieved, the plaintiffs have preferred this second appeal. 3A. At the outset, Mr. K.D. Chatterji appearing in support of the appeal put forward the contention that the learned Judge ought to have maintained the decree of the trial Court on the footing that the suit was in substance on the basis of the original loans advanced to the defendant more than three years before the institution of the suit, but the bar of limitation was saved by the acknowledgment of the defendant's liability contained in the chitha (Ext. 4) which gave a fresh start of limitation under section 19 of the Limitation Act. 1908 Learned counsel pointed out that the acknowledgment of liability contained in the chitha (Ext 4) was made by the defendant before the expiration of the limitation period of three years computed from the dates of the original loan transactions. This argument, however, is not available to the plaintiffs having regard to the frame of the suit, which clearly shows that it is based entirely upon the chitha (Ext 4), and not upon the original loans. This is abundantly clear from the averment contained in paragraph 6 of the plaint, wherein it has been alleged that the cause of action for the suit accrued on 4-8-1955 when the chitha (Ext. 4) was acknowledged and signed by the defendant. Further, as noticed by the trial Court in paragraph 12 of its judgment. It has transpired in the evidence adduced on behalf of the plaintiffs that the defendant has executed handnotes in respect of the three items of loan, and those handnotes had been returned by the plaintiffs to the defendant at the time when the accounting took place and the defendant signed on the chitha (Ext. 4). That such is the frame of the suit, is also apparent from the account appended at the foot of the plaint, where the principal amount of the loan has been mentioned as Rs. 3,370/6/3, upon which interest has been calculated as Rs. 935/0/9 from the date of the chitha (Ext. 4) to the date of the institution of the suit. Had this been a suit on the original loans then the principal amount would have been stated as Rs. 2,721/8/-, and the sum of Rs. 648/14/3 representing the interest on the said sum of Rs. 2,721/8/- would not have been included in the principal amount of Rs. 3,370/6/3, and the interest for the subsequent period between 4-8-1955 and 28-11-1957 (the date of the institution of the suit) would have been calculated on Rs 2,721/8/-, and not on Rs. 3,370/6/3. We must, accordingly, proceed upon the footing that the suit as framed is based on the chitha (Ext. 4), and that it is not open to the plaintiffs to contend that the suit is based upon the original transactions.