JAGDISH PRASAD SINGH Vs. SALIGRAM LAL

JUDGEMENT

(1.) In this appeal by the defendant the only question for decision is whether the suit of the respondents to recover their dues on a handnote was barred by limitation.

(2.) On 16 June 1934, the appellant executed a handnote in favour of the plaintiff for a sum of Rs. 3340-12-0 to carry interest at Re. 1 per cent, per mensem. On 16 July 1934 a sum of Rs. 100 was paid by the defendant towards the dues on the handnote, and, on 9 August 1934, another sum of Rs. 125 was paid by the defendant. As these two sums were more than the interest due on those dates the Courts below have found that by these two payments a part of the principal and a part of the interest due was paid off. Three open payments, were made on 16 June 1935 (Rs. 110) on 28 November 1937 (Rs. 67-8-0) and on 8 April 1939 (Rs. 20). The plaintiff's case was that these three amounts were paid towards interest as such, but the Courts below have concurrently held that the last three payments were clearly open payments. It should be stated here that all these payments were duly endorsed on the back of the handnote by defendant 1 under his signature but he did not state that he was paying these amounts towards interest as such. In evidence P.W. 2 Saligram Lal, the plaintiff, stated: It is customary to charge payments towards interest and so these payments have been credited towards interest, though they have not been shown paid as such in ray bahis. Neither defendant 1 said at the time of payments nor did I, whether the payments were being made towards principal or interest.

(3.) In these circumstances the only conclusion possible is that which has been drawn by the learned Judge that these last three payments were clearly open payments, and the argument of Mr. K.N. Lall to the contrary cannot be accepted. The plaintiff further stated that as he was entitled to appropriate the last three payments towards interest he has done so. The learned Munsif, however, came to the conclusion that there was no evidence that the plaintiff has appropriated these sums towards principal within three years of the date of the payments or at any rate before the date of the suit and that the only document showing appropriation is the plaint itself and that Exs. 3 and 3 (a), entries in the plaintiff's books do not show the alleged appropriation.