KUNJA BEHARY SINGH Vs. SURENDRA KUMAR BASU

JUDGEMENT

(1.) Two points only have been raised upon this appeal. The question of whether or not the plaintiff and defendant were partners, has very properly not been pressed before us. The first point we have to determine is a question of limitation, and it arises in this way. There had undoubtedly been money transactions between the plaintiff and the defendant, and the former had undoubtedly lent the latter Rs. 1,000 for which he now sues, and on the 1lth of June 1894 the defendant gave an acknowledgment in writing of the debt, which admittedly would take the case out of the Statute, if the suit were instituted within 3 years from that date.

(2.) The question then is, when was the suit instituted? The plaintiff says on the 7 June 1897, the defendant says on the 15 June 1897. If on the former date, the suit is not barred; if on the latter, it is. What then are the facts?

(3.) On its face, the plaint purports to have been filed on the 7 June 1897 and this is what happened.. The plaint was undoubtedly presented in the Court of the Munsif on the 7 of June 1897, but it was insufficiently stamped. The plaint was not rejected but the Munsif made, as 1 think he had power to do, under Section 28 of the Court Fees Act, this order: "The plaintiff to put in the deficit Court fee within 15 days." The further Court fee was paid on the 15 June 1897. Which then is the date of the institution of the suit, the 15 or the 7 of June 1897? I am satisfied that the date must be taken to be the 7 June; not the 15th.