B UDEYPAL SINGH Vs. LAKSHMI CHAND

JUDGEMENT

(1.) This case has been referred to a Full Bench, because there is some conflict of opinion as to the true meaning and scope of Section 20, Limitation Act, more specifically after the amendment in the proviso by Act 1 of 1927. The facts may be briefly stated. The plaintiff brought a suit for the recovery of a sum of Rs. 250 on the allegation that defendant 1, Ewaz and Nanhe deceased borrowed Rs. 100 from the plaintiff and executed a bond which provided for payment of interest at the rate of Rs. 3-2-0 per cent per mensem, the interest to be compounded every six months. The bond was payable on demand. Defendant 1 and Nanhe deceased paid Rs. 50 on 17 August 1930, towards interest and both of them put their thumb marks on an endorsement of payment at the back of the bond. The endorsement runs as follows: "Deposited Rs. 50 to-day on 17 August 1930." There is then an account at the foot of the plaint which, says: Principal was Rs. 100 and interest from 7 October 1927 to 16 August 1933 at the rate of 2 per cent per mensem compoundable six monthly was Rs. 250 out of which Rs. 50 were paid and endorsed at the back of the bond and Rs. 40 were remitted. The interest therefore due was Rs. 150 and this with principal amounted to Rs. 250.

(2.) Ewaz, defendant 1, did not file any written statement, but the heirs of the deceased Nanhe pleaded that the bond was without consideration and that its execution was not admitted. Nanhe, the deceased, had no necessity to borrow nor did he as a matter of fact borrow anything on the bond in suit. All the allegations of the plaintiff were wrong and the interest was exorbitant. The learned Small Cause Court Judge referred to the evidence of the plaintiff and his witness Radha Ballabh and observed that they had said that Rs. 50 were paid towards the bond, but neither of them said as to whether this payment was made towards the principle amount or towards interest. Relying on the authority of Ram Prasad v. Binaek Shukul 1933 All 453, the Court below held that the suit was barred by time. It also held that the execution of the bond by defendant 1 and Nanhe deceased for consideration was proved. On the question of interest the learned Judge held that the interest claimed was not excessive in view of the fact that the plaintiff did not claim at the contractual rate, but at the lower rate of 2 per cent par mensem and had further remitted a sum of Rs. 40. In the event the suit was dismissed, and in revision before us it is contended that the view of the Court below that the plaintiff's suit was barred by time is not sound.

(3.) It is to be noticed that the plaintiff in his plaint distinctly said that the executants of the bond made the payment of Rs. 50 on the head of interest as such. One may say that the plaint might be read as meaning that the plaintiff also credited it as such, but it is not possible to argue that the plaintiff appropriated it as interest irrespective of the volition of the debtors. Para. 2 specifically says that defendant 1 and Nanhe deceased paid Rs. 50 as interest; it does not say that they paid Rs. 50 on account and the plaintiff in pursuance of the right conferred on him by law appropriated it towards interest. The admission made by the plaintiff can be construed only in one light and as a single admission, namely, that the sum of Rs. 50 was paid by the debtors towards interest as such and it was therefore appropriated as such hence the account in the plaint was calculated in the way in which it was done. It is possible to reject the entire admission and to say that the amount was not paid towards interest as such, but it is not permissible to hold that the plaintiff's case that the debtors paid the amount towards interest as such is wrong and to pin down the plaintiff to the implied admission in the plaint that he appropriated the amount towards interest. In Motabhoy Mulla Eassabhoy V/s. Mulji Haridas 1915 P.C. 2, at p. 409, their Lordships of the Privy Council say: It is permissible for a tribunal to accept part and reject the rest of any witness's testimony. But an admission in pleading cannot be so dissected, and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all.