SAGOREMAL GOPALKA Vs. ACBANERJEE AND CO

JUDGEMENT

(1.) This is a suit on a promissory note executed by the defendants on 12 November 1927. On that day there was also a deposit of certain shares in the Bihar Firebricks and Potteries, Ltd., the particulars of which are given in a memorandum of deposit also signed by the defendants. The shares are described as security against our handnote for Rs. 20,000 only of date." Prima facie the plaintiff's claim on the note is barred by limitation, The plaintiff submits that limitation is saved, first, by various payments on account, the last of which was made on 11 May 1929. The defendants do not dispute that a fresh period of limitation began to run on that date, but inasmuch as the suit was not filed until 13 November 1933, it would still be barred by limitation unless a fresh starting point can be found before 11 May 1932, and subsequent to 13 November 1930. The plaintiff submits that a fresh period of limitation is to be computed from 12 March 1931 on which date the defendant s, through one of their partners, signed a written statement in a suit in this Court, which in the submission of the plaintiff amounts to an acknowledgment of liability in respect of his right within the meaning of Section 19, Limitation Act.

(2.) The circumstances which led to the filing of that written statement must be set out in detail. There were five members, the plaintiff being one of them, of a joint family that may for purposes of convenience be referred to as the Gopalkas. On 26 November 1924, the defendants borrowed four several sums of Rs. 20,000 from four of the five Gopalkas and a sum of Rs. 10,000 from the fifth Gopalka, and executed five several promissory notes in favour of the lenders individually. One of such promissory notes was paid off on 14 May 1925, but the lender advanced a sum equal to that secured by the original promissory note on the 6 of the following month. On 12 November 1927, when outstanding notes of 26th November 1924, were about to become barred, the respective holders of them obtained renewal promissory notes from the defendants, of which the promissory note in suit is one and also obtained the deposit of various share certificates by way of security. On 5 June 1928, the promissory note of 6 June 1925 was in its turn renewed. On 10 November 1930 a suit was filed in this Court by two of the Gopalkas including the present plaintiff. They joined with them as plaintiffs the present plaintiff's minors sons. The defendants in the suit were the present defendants and the other Gopalkas in whose favour the notes had been executed, and also certain infant Gopalkas.

(3.) The plaint alleged that the parties to that suit other than the present defendants were a joint Hindu family, and that out of the assets of that family the Gopalkas had advanced various sums to the present defendants. Particulars of the sums advanced are set out in the plaint and amount to Rs. 90,000 which sum is arrived at by adding to the Rs. 70,000 secured by the notes of 12 November 1927 the Rs. 20,000 secured by the note of 5 June 1928. The plaint goes on to allege that the present defendants executed promissory notes in respect of the above sums in favour of various members of the joint family and promised to pay interest thereon at the rate of 5 per cent per annum. The sum due for principal and interest at the date of suit is stated to be a sum of Rs 1,23,000 for which a decree is asked together with interest and an order for sale of the shares deposited as security for the promissory notes. There is a statement that the Gopalka defendants have been joined as defendants because they have refused to join as plaintiffs and that no relief is sought against them.