PANDIT SUSHIL CHANDER CHATURVEDI Vs. WALI ULLAH

JUDGEMENT

(1.) The plaintiff-appellant Pandit Shushil Chander Chaturvedi is the proprietor of a business known as Hanuman Glass Works at Firozabad in the district of Agra. The defendants are a Mahomedan family resident of Armara close to Mrozabad in Agra district. Defendants 1 and 2, Wali Ullah and Niamat Ullah, are own brothers and defendants 3 to 6 are their nephews being sons of their deceased brother Abdul Hamid. There was a fourth brother Said also who died before the institution of the suit out of which this appeal has arisen. According to the plaintiff the defendants are partners in three firms called Md. Said Abdul Hamid, Naimat Ullah Farid Uddin and Zahiruddin Gulam Ahmad. In the year 1930 on various dates these firms purchased certain glassware from the plaintiff and in the year 1931 a small sum of Rs. 5-8-0 was advanced by the plaintiff to these firms. In 1933, according to the plaintiff, accounts were made up of what was due to the plaintiff from these firms and it was found that the firms were liable to him for a sum of Rs. 1781 on accounts. The plaintiff alleges that on 14 February 1933 Wali "Ullah, defendant l, acting on behalf of all the partners and on behalf of the firms mentioned above, executed a document which has been described in the plaint as a note of hand by which a liability for Rs. 1781 was acknowledged and a promise was made to pay it on demand with 2 per cent, monthly interest. This document has been filed in the case, out of which this appeal has arisen and a little later we will give a translation of it.

(2.) In 1936 the plaintiff commenced the action out of which this appeal has arisen for recovery of Rs. 3000 odd principal and interest on the basis of the document mentioned above. In the plaint the transactions of 1930 and 1931 made between the plaintiff and the three firms were described, the accounting which took place between the parties in February 1933 was set out and it was further stated that with reference to the accounting a note of hand was given to the plaintiff by the defendants and which we have referred to above. The suit was contested by the defendants and they raised separate defences. One of the defences was that the defendants were not partners of the firms and they were not liable at all to the plaintiff for the amount claimed. The second defence was that the interest claimed was excessive and there were other defences which it is necessary to mention in detail, but one defence which was common to all the defendants was that the claim was barred by limitation. The trial Court came to the conclusion that the claim was barred by limitation. It also found that the alleged partnership was not established; on the question of interest, it recorded no finding and it also left some other pleas in defence undecided. The plaintiff took the matter in appeal before the District Judge of Agra and the learned civil Judge who decided the appeal has affirmed the judgment of the trial Court on the preliminary ground that the claim was barred by limitation. He has left undecided other matters which were in controversy in the case. The matter is now here before us in second appeal, and the only question for consideration in the case is whether or not the findings of the Court below on the question of limitation are justified.

(3.) The transactions between the plaintiff and the defendants took place in 1930 excepting a cash transaction of Rs. 5-8-0 which took place in 1931. The suit was instituted in 1936 and the suit being one for recovery of money as price of goods would be obviously barred by limitation unless time could be saved by some acknowledgment or by some fresh cause of action. The plaintiff relies upon the document dated 14 February 1933 mentioned above as saving that time. He calls it as a document of acknowledgment and if that be so his case will be within time. We may mention here that even if this document be accepted in plaintiff's favour the question of limitation would remain to be considered with reference to other defendants who did not execute the document. Now, this is an aspect of the matter which we are not considering for the time being. Both the Courts below have taken the view that the document of 14 February 1933 is a promissory note and not a mere acknowledgment and as it contains a stamp of annas 3 pies 6, whereas under the provisions of the Stamp Act it should have contained a stamp of annas 4 it is deficiently stamped and under the provisions of the Stamp Act it is wholly inadmissible in evidence and cannot be examined even for the purpose of extracting an acknowledgment out of it. If this document be accepted as a promissory note then it is not disputed that the conclusion arrived at by the Courts below is correct and the sole question for consideration in this case is whether or not the document can or should be regarded as a promissory note. It will be convenient at this stage to give a translation of this document. Unfortunately there is no authorized translation before us. Mr. Banerji who appears for the respondents has given to us a free translation which is as follows: We, Abdul Hamid-Mohammad Said, residents of M. Armora promise to pay on demand with interest at 2 per cont. per mensem to firm Hanumaa Glass Works the sum of Rs. 1781 due from us as per accounts regarding glass.