SHAIK MOHIDEEN SAHIB Vs. OFFICIAL ASSIGNEE, AND AS SUCH, ASSIGNEE OF THE ESTATE AND EFFECTS OF THKUTUBUDDIN SAHIB AND BROTHERS

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Wallis in favour of the plaintiffs in a suit for the balance of the price of goods sold and delivered. Pending the appeal the plaintiffs became insolvents and the Official Assignee has been made a party. The only points taken in appeal before us were, a point as to the jurisdiction of the High Court and a point as to limitation. As regards the question of jurisdiction, we are of opinion that the learned Judge was right for the reasons stated in his judgment in holding that the cause of action arose wholly within the local limits of the jurisdiction of the High Court.

(2.) The question of limitation is one which is not altogether free from difficulty. But as we have had the benefit of hearing the point fully argued, and have made up our mind with regard to it, we do not think any useful purpose will be served by considering it further. With regard to this question I have come to the conclusion, with some reluctance that I cannot adopt the view which the learned Judge has taken and I feel constrained to hold that the plea of limitation hag been, made out. What is relied on in this case to bar the application of the law of limitation is a letter written by Abubucker Sahib on the 16th February 1906. Abubucker Sahib is (sic) and he is represented in this suit by his widow and daughter, the second and the third defendants. The learned Judge Has held that this letter is an acknowledgment which bars the application of the law of limitation as against the firm of which the deceased Abubucker and the first defendant were members when the letter was written. Explanat Section 19 of the Limitation Act provides that sign. "signed either personally or by an agent duly authorised in this behalf." Section 21 says "nothing in Sections 19 and 20 renders one of several...partners...chargeable by reason only of a written acknowledgment signed...by any other...of them"--I read the words material for the purposes of the point before us. The law is therefore clear that the mere fact that the acknowledgment is signed by one member of the firm does not in itself render the firm liable on the acknowledgment. The point came before the Bombay High Court in Premji Ludha v. Dossa Doon Gersey (1886) I.L.R. 10 Bom. 358 where Mr. Justice Scott observed that in a going mercantile concern the agency of one partner to make an acknowledgment for the purpose of barring the law of limitation against the others was to be presumed as an ordinary rule. Now this case was cited before Mr. Justice Wallis and his decision appears to have been given following the decision in this case or, at any rate, he took the same view of the law as that taken by Scott, J. The learned Judge does not refer to a decision of this Court in Valasubramania Pillai v. S.V.R.R.M. Ramanathan Chettiar (1909) I.L.R. 32 Mad. 421. We are told that reference was made to this case before Mr. Justice Wallis but so far as appears from his judgment there is nothing to show that this was so. The case has not been reported in the authorised reports of the time. In that case we held that a part- payment by one partner of a going mercantile firm of a debt will not save the operation of limitation under Section 21 of the Limitation Act- in the absence of evidence to show that, in the course of business the partner had authority to do so on behalf of the firm. Now, following the principle we here lay down, we have to see in this case if there is evidence that the person who made the acknowledgment had authority to do so on behalf of his firm. I do not think the decision in Dalsukhram v. Kalidas (1902) I.L.R. 25 Bom. 42 helps the respondents. Can it be said in the present case that the course of business was for one partner to have authority to make an acknowledgment which would bind the firm? Wallis, J., says that Abubueker, the man who wrote the letter of the 16th of February 1906, was a partner and "there is also the fact that he was in charge of the business at Negapatam and he was managing it." Then he goes on to observe: "This section is only aimed at preventing partners who really do not take any active part in the business from imposing liability upon others." In the learned Judge s view it follows from the fact that the man who wrote the letter was in charge of the business at Negapatam that it was within the scope of his authority to make an acknowledgment which would bind his partners when the firm was being pressed for payment. This view, it seems to me with all deference, is not consistent with the rule we laid down in Valasubramania Pillai v. S.V.R.R.M. Rama-nathan Chettiar (1969) I.L.R.32 Mad. 421. And I myself am unable to take the view that from the fact that the partner is actively engaged in the business, and from that fact alone, having regard to the language of Section 21 of the Limitation Act, it is to be inferred that he had authority to make an acknowledgment to bar the law of limitation, which would bind the other partners.

(3.) Mr. Grant has argued before us that there is something more before us than the fact that the man who gave the acknowledgment managed the business in Negapatam. He has referred to a letter which had been written by the first defendant on the 6th September 1905. This letter was written more than three years before the institution of the suit. I will take it that the letter refers to the plaintiff s claim which is the subject-matter of the present suit. It gives a reason for not having sent the money, it contains a promise that the writer will send the money, it contains an acknowledgment that the money was due. Then it goes on to say "you need not feel anxious" and the letter closes and this is the portion of the letter on which Mr. Grant relies :" the letters you may write to this place hereafter should be addressed to ray brother Abubucker Sahib"--that is, the writer of the letter of the 16th February--" you should also purchase and send such goods as he may write to you for." Now Mr. Grant; says this ought to be construed as an intimation to plaintiff that the brother of the first defendant was authorised to give an acknowledgment which would bind his partner. It seems to me that the letter amounts to nothing more than an intimation to plaintiff that the debt was admitted to be due, that any further business letters were to be sent to the brother of the first defendant, Abubucker Sahib, and that be had authority to purchase goods on behalf of the firm. Reading the two letters together I find myself unable to hold that they show an authority to make an acknowledgment which would bar linaitatior.