VELCHAND GANESH Vs. BHAGVANDAS BHAICHAND

JUDGEMENT

(1.) THE only point in this appeal is one of limitation. THE plaintiff sued to recover Rs. 792 from the defendant on a current account THE defendant, amongst other pleas, raised the plea of limitation. That was decided against him by the first Court, who found Rs. 558 odd due from defendant. On appeal the District Judge reversed the decree, and dismissed the suit with costs on the ground that it was barred by limitation. It is not necessary to go into any facts. Admittedly, the suit is time-barred unless the letters from defendant. Exhibits 24 and 32 of October 1S; 1922, a December, 14, 1922, can be considered acknowledgments. THE District Judge says :- In the first of these, which is an answer to plaintiff's notice claiming from him Rs. 667 odd as due in 1922, defendant replied that he did not owe as much as was claimed. He therefore did not acknowledge liability to the extent of the whole claim. In the subsequent letter defendant says that he is unable to pay the amount claimed by plaintiff; but he is silent as to whether or no the whole amount is due. In this connection the cases reported in 31 Gal. 19S and 36 Mad. 68 are cited by defendant's pleader while those reported in 33 Cal. 1047 (which is also 33 I. A. 165) and 9 Bom. L, R. 715 are relied on by the pleader for plaintiff. Each ruling is applicable to the facto to which it relates, but the facts were almost exactly the same in the Madras case. THEre also the creditor demanded a definite sum and the debtor disputed its correctness and id was held that the debtor's letter was not an acknowledgment within the meaning of Section 19 of the Limitation Act, As that ruling applies to the present case and defendant's two letters do not show that he acknowledged is. liability for the whole sum claimed, I hold that there was no acknowledgment and that the suit is time-barred.

(2.) THE judgment of the District Judge was delivered on August 30, 1927, and since then in January 5928 there has been a judgment of a bench of this Court on a similar point to which I was a party, viz., Pandurang V/s. Maruti . Each case must be decided on the particular facts of the letter which is claimed to be an acknowledgment. It is, therefore, necessary to give the contents of Exhibits 24 and 32. In Exhibit 24, omitting the non-material portions, the defendant says :- THE reason for writing further is that we do not owe as many rupees as you have written. THErefore Shetsahib send an extract of our Khata (account). THEn whatever mistake has crept in will be appearing. THErefore being compassionate to us poor persons you should send the Khata extract...Your amount has been (with us) for a long time. THErefore you should show favour to us...Your dues have remained unpaid for many days. Hence you should not be angry with us. This Is dated October 18, 1922. Exhibit 32, which is dated December 14, 1922, omitting immaterial portions, says:- I made to you many promises but for unavoidable reason I have to write to you that you should take pity on this child and I shall pay your rupees in the month of Magh though I had made a promise of the month of Margaghirsha, But as my health became impaired, I could not go to Pabal, therefore, your rupees remained to be paid. It is true that everybody is in need of cash, but through difficulties it has remained (to be paid). THErefore I shall pay rupees in the month of Magh. I make request to you by folding hands...Be kind to me...I request by folding hands that you should wait for two months. THE cases referred to by the learned District Judge in his judgment have been considered in the judgment in Pandurang V/s. Maruti. THE case on which the learned District Judge has relied is Andiappa Chetty V/s. Alasinga Naidu (1911) I.L.R. 36 Mad. 68. In that ease there was no acknowledgment of any liability, but only a demand for accounts, and therefore it was held that neither of the letters amounted to an acknowledgment under the Indian Limitation Act, Section 19. THE case in Jogeshwar Ron v, Raj Narain Mitter (1903) I.L.R. 31 Cal. 195 was one in which the debtor asked for an account in order- to see what was due, and it was held that the writing was not an acknowledgment of liability. It is possible that these cases might apply to Exhibit 24, in which, while admitting the existence of an account, the debtor disputes the amount stated to be due by the plaintiff and asks for accounts to be sent. THE same argument, however, will not apply to Exhibit 32, which appears to me to be . an unconditional acknowledgment, and as it begins, " I have your letter received to-day. I understand the contents written". I take it that in reply to Exhibit 24 the plaintiff sent a statement of account, and Exhibit 32 is virtually an admission of the correctness of that account and a request for time to pay. He says, " I shall pay rupees in the month of Magh," and that he was not able to pay in Margashirsh as promised on account of his health. Margashirsh would roughly represent November-December. This letter was written in the middle of December, Margashirsh Vad 11th, and he asks to be given time to pay till the following Magh, which would be March. In Pandwrang V/s. Maruti the defendant asked for the accounts to be settled and arrangements to be made for his convenience in respect of the balance, and said: "I would pay and you would receive the balance... I had previously written to you that I would settle the accounts and make arrangements about the balance; or I would pay off the balance by performing service." That letter was held to be an acknowledgment within a 19 of the Indian Limitation Act. Exhibit 32 seems to be rather stronger than the letter in Pandurang V/s. Maruti, as it practically amounts to this, that defendant acknowledges the balance which was claimed by the plaintiff and promises to pay after some time. In these circumstances I must disagree with the view of the lower appellate Court that Exhibit 32 at any rate does not amount to an acknowledgment. As it is admitted that if Exhibit 32 is taken as an acknowledgment, limitation would be saved, it is not necessary to go into the question whether Exhibit 24 would amount to an acknowledgment or not. THE decree of the lower appellate Court will, therefore, be reversed. As the District Judge has pointed out in his judgment that had he not held that the suit was time- barred, he would have decreed against defendant a further sum of Rs. 36 with interest thereon, the decree of the first Court will have to be varied by awarding him a further sum of Rs. 36 with interest thereon as mentioned in the judgment of the District Judge. THE plaintiff is entitled to his costs of the appeals in the lower appellate Court and in this Court, and to proportionate coats in the first Court and the costs of the cross-objections in the lower appellate Court.