L KIRPA RAM Vs. BALAK RAM

JUDGEMENT

(1.) This is an application for revision by the plaintiff whose suit for recovery of Rupees 339-8-0 on foot of a bond dated 13 April 1929 was dismissed by the lower Court (Small Cause Court at Pilibhit) on the ground that it was barred by limitation.

(2.) The suit was instituted on 14 August 1933, i.e., more than three years from the date of the bond. The principal sum advanced was Rs. 475 which carried interest at the rate of 1 per cent per mensem. On 22 March, 1930 a sum of Rs. 275 was paid. This payment will not however save limitation as the suit was instituted more than three years from the date on which it was made. The plaintiff relies on the payment by the defendant of Rs. 20, on 15 December 1931, which its alleged to be noted on the back of the bond in the handwriting of the defendant. The defendant, denied the bond and payments alleged by the plaintiff. The lower Court has not recorded any finding on any other question arising in the case but dismissed the plaintiff's suit on the allegations made by him.

(3.) As regards the circumstances in which Rs. 20 was paid by the defendant the plaintiff's evidence shows that he (the defendant) did not say that the sum was being paid towards interest, but the plaintiff and another witness of his depose that on the defendant making the payment the plaintiff remarked that it should be appropriated towards principal. The defendant kept silent. Thereupon the plaintiff credited it as part payment of interest, the amount of which was in excess of Rs. 20 on that date. Apparently, the lower Court has not accepted the graphic account which the plaintiff and his witness give of the manner in which the payment was made and appropriated nor am I inclined to accept all that the plaintiff and his witness have stated. In all probability, the defendant paid Rs. 20 and the plaintiff accepted it, neither side mentioning how the sum was to be appropriated. As interest exceeding the amount paid was due, the plaintiff naturally appropriated the same towards it, which he had every right to do. In these circumstances, it cannot be said that the defendant paid Rupees 20 towards interest as such.