BAIKUNTH NARAIN MISHRA Vs. KESAR KALI KUER

JUDGEMENT

(1.) Defendant No. 2 is the petitioner. A money suit based on a promissory note was filed against the two defendants. The promissory note was executed on the 7th January, 1957 for Rs. 500/-. There was a payment of Rs. 18/-on the 5th January, 1960 and an endorsement to that effect was made by one of the executants defendant No. 2 on the back of the promissory note. When the suit was filed, several pleas were taken in defence against it. It was pleaded that the suit was barred by limitation and by Section 4 of the Bihar Money Lender's Act, besides the denial of the loan and part payment. Both courts have held the promissory note to be genuine and valid and to have been executed by the defendants 1 and 2 for Rs. 500/- advanced to them as a loan by the plaintiff. The trial court however dismissed the plaintiff's suit on the ground that it was barred by limitation because in its view, the date given in the endorsement of part payment was interpolated inasmuch as the year '60' appeared to have been over-written. While the case came in appeal before the lower appellate court it gave very cogent reasons for differing from the view taken by the trial court on the date in the endorsement of part payment made on the 5th January, 1960. Although the promissory note filed in court had been examined by the defendants before they filed their written statement, nothing was said in the written statement to say that the date of endorsement had been interpolated or to say which year other than '60' had been given by defendant No. 2. On the other hand, there was a complete denial of making the endorsement and giving the thumb-impression which were found to be false by both courts. I have myself looked into the endorsement including the year given by defendant no. 2 (Ext. 3/A) and I do not think that the lower appellate court was wrong in any way in observing that there had been no interpolation or over-writing in the date as put in that endorsement (Ext. 3/A).

(2.) Learned counsel for the petitioner however urged that even if that endorsement is taken to be genuine, still the suit was barred by limitation. According to him, the date of endorsement and acknowledgment of debt being 5th January, 1963, was to be included while computing the fresh period of limitation under Section 18 of the Indian Limitation Act. It is well known that when computation of a period is to be made from a particular date, that date is excluded from such computation. Learned Counsel however contended that that date from which computation of the period is to be made should be included in the computation. In support of his contention, he referred to a case Trow v. Ind. Coope (West Midlands) Co., Ltd., (1967) 2 QB 899. There a writ had been issued and the question arose whether it had been served within a period of twelve months "beginning with the date of" its issue. Interpreting the phrase "beginning with the date" it was held that the date of issue was to be included in computing the period of 12 calendar months. I cannot see how that case will go in support of the petitioner here. In our Limitation Act the period of three years is from the date of acknowledgment of debt and not that, that period of three years is to begin with the date of acknowledgment.

(3.) Learned counsel further contended that there have been contradictory decrees in the same suit inasmuch as it has been held to be barred by limitation as against defendant no. 1 and has been held to be within time as regards defendant No. 2. I also do not see any substance in this. An acknowledgment will save limitation against the person who makes such acknowledgment. If it would have been found that defendant No. 2 was authorised to make acknowledgment on behalf of defendant No. 1 that would have also saved the limitation against defendant No. 1. The court below has rightly held that when defendant No. I was present in the village on the date of acknowledgment and endorsement in Ext. 3/A by defendant No. 2, the endorser (defendant No. 2) would not be taken to have been authorised by defendant No. 1 to make such acknowledgment. That was purely a question of fact. Since the acknowledgment has saved the limitation against defendant No. 2 the suit has been decreed against him. I do not see any error in law in that respect.