DEBJI GHELABHAI AND BROTHERS Vs. RDMEHTA AND CO

JUDGEMENT

(1.) The, defendant has obtained this Rule under Section 25, Provincial Small Cause Courts Act, and the only point pressed on his behalf is that the plaintiff's claim is barred by limitation. The plaintiff agreed to supply to the defendant 2000 pieces of sal wood sleepers at his colliery and on 9 September 1930, delivered the same. The defendant paid to the plaintiff some money which I am told amounted Rs. 250. The suit was filed on 11 September 1933, just two days after the period of limitation. Apart from the question of limitation the case of the defendant is that out of the 2000 pieces of sleepers 800 pieces were bad and had been rejected. For the purpose of getting over the bar of limitation the plaintiff relied upon a letter written by the defendant to the plaintiff on 12 September 1930, which is in these terms: "Dear Sirs, We are in receipt of your letter No. nil of 7-9-30 and noted the contents thereof. In reply was beg to inform you that as per amicable settlement between you and ourselves about 800 pieces of the sleepers purchased from you are lying rejected near our siding of our above colliery. Please therefore arrange to remove them at your earliest convenience and thereafter adjusting the account let us hear about your dues, if any. Please note and do the needful.

(2.) The 800 pieces of sleepers mentioned in this letter were however not removed by the plaintiff and his suit includes the price of these which forms the substantial part of his claim. The letter in answer to which this letter was sent has not been produced. The learned Small Cause Court Judge relied upon this letter as an acknowledgment of liability and has decreed the suit. In my opinion it cannot be regarded as an acknowledgment of liability in respect of the 800 pieces of sleepers but is an acknowledgment of liability in respect of the balance of the price that may be due on the accounts for the remaining 1200 pieces. Whether a particular document or letter amounts to an acknowledgment of liability or not within the meaning of Section 19, Lim. Act, must depend upon the terms there of and other decisions cannot often be helpful. It is quite true that under the Indian statute there need not be a promise to pay but the document in question must on a fair reading amount to an admission of liability, absolute or conditional, and in the latter case the condition must be fulfilled: see Maniram v. Seth Rupchand (1906) 33 Cal 1047. But where the letter or the document relied upon expressly states that there is no liability and the liability is in fact denied and repudiated I do not see on what principle it can be said that limitation is extended under Section 19 of the Act. In the letter in question the defendant stated that he was under no liability for the price of the 800 pieces of rejected sleepers. I would accordingly hold that the claim of the plaintiff for the price thereof is barred by time, but the last part of the letter amounts to an acknowledgment of liability in respect of the balance of the price for the accepted 1200 pieces according to the principle laid down in Maniram V/s. Seth Rupchand (1906) 33 Cal 1047.

(3.) Mr. Dass has sought to support the decree of the lower Court on another ground. He says that the defendant paid Rs. 250 on the basis of the contract, and although at the time when that payment was made there was no writing in the hand of or signed by the defendant the fact that the defendant recited the payment in his written statement in the suit which was signed by him brings the case within Section 20, Lim. Act. I do not see my way to give effect to the said contention. The defendant has maintained in his written statement that the said payment was towards the payment of the price of the 1200 accepted pieces and his written statement cannot be dissected in the manner suggested by the opposite party. Besides I am of opinion that a written statement filed in the suit itself cannot be called in aid for the purposes of Section 20 of the Act. When the plaintiff institutes the suit beyond the period of limitation prescribed in the schedule to the Limitation Act, he has to state in his plaint the reasons why the suit is still within time. If there is no such statement the Court has to dismiss the suit. Further a suit must be tried on the cause of action as laid in the plaint and any inherent defect of the said nature in the plaint cannot be supplied by a written statement in the suit. For these reasons I overrule the said contention and make the Rule absolute in part and dismiss the claim of the plaintiff in respect of the price claimed for the 800 pieces of rejected sleepers. The advocates of parties are agreed that the decree should be for Rs. 19-1- 0 which is made up of Rs. 14 and interest thereon at 12 per cent per annum from 9th September 1930 to the date of suit.. The decree of the lower Court is modified accordingly. The parties will bear proportionate costs in the Court below but I make no order for costs in the Rule.