VISRAM VASUDEO THAKOOR Vs. TABAJI BALAJI WAGH

JUDGEMENT

(1.) This is a suit upon a Khata executed by defendants `1 and 2 to defendant 3, Sitabai, on the 20th of May 1909 and duly assigned by Sitabai to the plaintiff on the 5th of June 1912.

(2.) The first defence raised was that the suit was time-barred. I overruled that in limine but I should like to add a word or two in this judgment. The defendants relied upon the case of Bai Hemkore v. Masamalli (1902) I.L.R. 26 Bom. 782. I think the facts of that case can be distinguished but the principle upon which it appears to have been decided might certainly lend itself to the kind of argument raised upon it by the defendants counsel. Were I satisfied that the decision really governed this case I should of course have been bound by it but I should have still felt it my duty to express, with all deference, my own doubt whether that case was rightly decided. The facts were briefly that the defendant gave an acknowledgment of indebtedness to the plaintiff within the meaning of Section 19 of the Limitation Act in every respect, but that in the opinion of the Court it was not given before the expiration of the period prescribed etc. The period prescribed in Schedule 1 ended during a Court vacation. The acknowledgment was given after the expiration of that period but before the Court re-opened, and their Lordships held that the plaintiff was not saved by the provisions of Section 4 of the Limitation Act and the acknowledgment was therefore not given before the expiration of the prescribed period. Section 3 of the Limitation Act appears advisedly to make the whole of Schedule 1 subject to the provisions of Sections 4 to 25 of the Act and Section 4 provides that where the period prescribed in Schedule 1 ends on any day on which the Court is closed, the suit shall still be in time if filed upon the first day thereafter on which the Court is re-opened. The effect of Sections 3 and 4, therefore, upon the period prescribed in Schedule 1 seems to me clearly to extend those periods in the special circumstances contemplated by Section 4. Omitting the technical words, it comes to this, that where say a three years period ends within a Court vacation the plaintiff may bring his suit not within three years but within three years and so much of the Court vacation as exceeds that period. Thus in the case decided the plaintiff might still have brought his suit without being barred by limitation after the day on which the acknowledgment was signed. So that it appears to me very hard to say that the acknowledgment was not made before the expiration of the period prescribed by limitation, for that really means the period within which a plaintiff may file his suit. And the reason of the thing seems to me still more clearly all the-same way. An acknowledgment extends the period of limitation presumably because in consideration thereof the debtor obtains more time. In the actual case for example the plaintiff may have informed the defendant that unless he was immediately paid he would be compelled under the law of limitation to file his suit on the first day the Court re-opened ; and the defendant may well be thought to have suggested that as this would cause him great inconvenience he would acknowledge the debt; so that the plaintiff need not be compelled to launch his claim at so early a date. On that footing the plaintiff consents not to file his suit when the Court re-opens. He believes, - and has every reason to believe, I think, that the acknowledgment enlarges his right to sue and that he can, therefore, safely give his debtor more time in which to pay. Such considerations as well as the actual language of the law certainly do raise a very grave doubt in my mind whether the case was rightly decided. Here, however, the facts are different. The debt was assigned during this Court s vacation after the period prescribed in Schedule 1 had-expired. There can, however, be no question but that the assignor might have filed this suit on the day the Courts re-opened, and it seems to me beyond all question that the plaintiff took under the assignment all rights of that kind belonging to the assignor.

(3.) The next question is whether this Court has jurisdiction. That depends upon a finding of fact whether or not the Khata, Ex. D in this case, was executed at Talegaon as the defendants allege or in Bombay as alleged by the plaintiff. In my opinion the evidence is overwhelming and conclusive in favour of the wt defendants. No less than six witnesses, the two defendants, the pleader Darab, Sitabai s agent Laxman, the bond-writer Vishnu Medhi and the attestant Vithoba, swear most emphatically that the transaction took place at Talegaon on the evening of the 20th of May. On the other side there is really no evidence except that of Sitabai herself and the admitted fact that part of the Khata, Ex. D, was not written in Talegaon. The defendants do not know where it was written and are quite prepared to admit that it may have been written in Bombay. Sitabai herself admits that she left Bombay by the midnight train on the 20th and was in Talegaon the following day. This she could hardly deny in view of the registered sale-deeds which the defendants have adduced in support of their contentions. Every probability too appears to be in favour of the defendants. They are Talegaon men. Sitabai and her husband had considerable money dealings in Talegaon; and Sitabai admits that she had employed one of the defendants at any rate to collect her outstandings there. It is much more probable, I think, that Sitabai should have entered 1 into this transaction (waving for a moment its true nature) in Talegaon than that both the defendants should have run down to Bombay and got back to Talegaon in the very limited time which must be allowed if the plaintiff s story be true, for there is not only this mass of oral evidence, but the defendants have been able to produce documentary evidence (see Exts. 6 and 10) showing most conclusively that defendant No. 2 Shivram must have been in Talegaon for a great part at any rate of the 19th and 20th of May. It is true that these documents do not absolutely exclude the possibility of Shivram having been in Bombay for a few hours on the morning of the 20th. But the cumulative effect of the documents and the facts connected with them is to make that so improbable as to verge very closely upon impossibility. I ought perhaps to have mentioned that according to the plaintiff the Khata was executed on the 20th of May and certain acknowledgments were made in it on the 31st of May. These acknowledgments are admittedly in the handwriting of defendant No. 2 and he is again in a position to bring forward documentary evidence which makes it extremely improbable, if not actually impossible, that he could have written those entries in Bombay. Even, apart from this unusually strong documentary evidence, I should have found it extremely difficult to dispose, in plaintiff s favour, of the evidence of the pleader Darab. There is really nothing to show why this man, who appears to occupy a respectable position, should have come here to perjure himself deliberately for the defendant s sake. He is quite positive that when the Khata, Ex. D, was brought by Sitabai to Talegaon on the evening of the 20th of May it was not completed. Only that part of it which in these proceedings is always referred to as the body of the document was then written. Darab was called in by defendant No. 2 to advise upon its execution and he swears that he advised the defendants not to complete it until Sitabai for her part had executed an agreement explaining the true nature of the transaction. As it is common ground that the document Ex. D was executed on the 20th of May it follows from this evidence, if the evidence be true, that the document must have been executed in Talegaon and not in Bombay, for the time spoken of by Darab was late in the evening of the 20th of May, and if by then the document was still unexecuted it is utterly impossible that it could have been executed elsewhere than in Talegaon. I think it unnecessary to criticise in the detail the evidence of the other witnesses. I see no reason j myself to doubt the truth of it as a whole, and I certainly see j no reason whatever to doubt the complete truth of Darab s evidence. I have shown that if that is true, even alone it settles the question. I think very few questions of fact tried in this Court, so far as ray experience goes, could be answered with so much confidence. The evidence is abundant: on the whole it is unusually good and it is absolutely convincing. I must, therefore, find that no part of this cause of action arose in Bombay and this Court has no jurisdiction to try the suit.