SHYAM BALLAV NANDI Vs. DOLOGOBIND SAHU

JUDGEMENT

(1.) This is an application for revision of a Small Cause Court decree passed in favour of the plaintiffs by the learned Small Cause Court Judge of Cuttack. On 11 April 1921, the defendant petitioner executed a promissory note for Rs. 250 in favour of the opposite party. Prom time to time payments were made towards the dues on this promissory note. On 25 May 1921, Rs. 5 was paid, and there is an endorsement snowing the payment and showing the balance due after such payment. On 10 July 1921, Rs. 5 was paid, and on 8 December 1921, a further Rs. 10. No endorsement acknowledging payment was made by the defendant until 14 April 1921, when such an endorsement was made on the back of the note. On 27 October 1924, Rs. 10 was paid towards the dues on the note, and an endorsement to that effect was made on 2 November, 1924. On 21 October 1927, Rs. 5 was paid, and an endorsement to that effect was made on 30 October 1927. This payment is expressly stated to have been made towards interest. On 27 October 1930, Rs. 10 was paid towards interest, and an endorsement made on that date. On 20 October 1933, Rs. 3 was paid towards interest, and on 17 October 1936, a further Rs. 3 was paid towards interest. Endorsements of both these payments were made on the days on which payments were made. On 16 November 1939, the present suit was brought, and it would appear to have been out of time, as the last payment was made more than three years before the suit was brought. The explanation of this appears to be that the vacation intervened. However, no point was taken that the suit was out of time by reason of the fact that the suit was brought more than three years after the date of last payment. It was, however, urged before the Small Cause Court Judge that the suit was out of time by reason of the fact that the payment made towards interest of Rs. 10 on 27 October 1930, was made more than three years after the payment of Rs. 5 towards interest on 21 October 1927. As I have stated, an endorsement of this latter payment was made on 30 October 1927, and if the date of the acknowledgment of payment was to be taken as the fresh starting point of limitation, then the next payment on 27 October 1930, would be in time. Such payment would, however, be out of time if the starting point of limitation was the actual payment on the earlier date, namely 21 October 1927.

(2.) The section of the Limitation Act dealing with payments is Section 20, and this section provides that the fresh period of limitation must be computed from the time when the payment a made. There can be no doubt that the materiale is the date of payment and not the date upon which this payment was endorsed. That is the view taken by their Lordships of the Privy Council in Rama Shah V/s. Lal Chand A.I.R. 1940 P.C. 63. In fact, it does not seem to have been contended in that case that time could be said to run not from the date of payment but from the date of acknowledgment. If time runs from the date of payment and not from the date of acknowledgment, then limitation in this case cannot possibly be saved by Section 20, because, as I have said, more than three years had elapsed between the payment of Rs. 5 on 21 October 1927, and the payment of Rs. 10 on 27th October 1930.

(3.) It has been urged, however, that if Section 20, Limitation Act, does not save limitation Section 19 of the same Act would. It has been urged that the endorsement made of the payment of Rs. 5 and the endorsement of the payment of Rs. 10 were within three years of each other, and that being so, limitation would be saved by Section 19, Limitation Act. Section 19 provides: Where before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed....