KANDASWAMI MUDALIAR Vs. THEVAMMAL

JUDGEMENT

(1.) The suit is upon a promissory note dated 27 June, 1923. The question is whether it is barred by limitation. On the 27 March, 1926, a payment of Rs. 85 towards interest was made on the back of the note and on the 23 July, 1928, a promissory note (Ex. B) was executed in favour of the plaintiff for Rs. 200. It is alleged by the plaintiff that the said promissory note was towards a portion of the interest due under Ex. A. It has been found concurrently by both the lower Courts that the said promissory note was executed only towards interest due under Ex. A and therefore the suit claim is not barred by limitation and decreed the plaintiff's claim. In second appeal it is contended for the defendant that the view of the lower Courts is wrong. It is urged before me by Mr. Periasami Gounder that the suit promissory note, Ex. B, does not refer to the suit debt at all but purports to be for cash received and that it does not appear from the note that the said sum of Rs. 200 was paid towards interest and therefore the conditions of Section 20 are not fulfilled. Payment may be made in any form and a promissory note can be given by way of payment. Under the proviso to Section 20 before a payment by way of interest or principal can save limitation it is essential that the acknowledgment of the payment appears in the handwriting of or in a writing signed by the person making the payment. Does the said pro-note operate as an acknowledgment of payment of interest? Before the amendment of the present Limitation Act, so far as the payment of interest is concerned, it need not have been evidenced by writing, but it is only in the case of part-payment of principal, the fact must appear in the handwriting of the person making the payment. But this distinction has now been abolished. Before the amendment in the case of the part payment of the principal, there has been a conflict of opinion in this High Court as regards the conditions necessary for the fulfilment of the proviso. In Ankamma V/s. Rama (1883) I.L.R. 6 Mad. 281 Innes and Kernan, JJ., held: All that is required by Section 20 of the Limitation Act of 1877 is that the facts of the payment should appear in the handwriting of the person making the same. It is not necessary that the appropriation of the payment to principal should appear in writing. That may be made to appear otherwise.

(2.) But in Mackenzie V/s. Thiruvengadathan (1886) I.L.R. 9 Mad. 271 a different view was taken. In that case Muthuswamy Aiyar and Brandt, JJ., observed: There is, no doubt, some parole evidence as to the payment, but the Act requires that the fact of payment, and that such payment was a part-payment, should appear in writing signed by the debtor or his agent authorised to make the payment.

(3.) But the decision in Ankamma V/s. Rama (1883) I.L.R. 6 Mad. 281 was not noticed in this case. In Muthiah Chettiar V/s. Kuttayan Chetty (1917) 6 L.W. 790 the part-payment was by means of a hundi, just as it was by means of a promissory note in this case, and Abdur Rahim and Oklfield, JJ., held that it would not satisfy the requirements of Section 20 of the Limitation Act as the hundi did not indicate that the payment made by means of the hundi was towards part-payment of the debt. The learned Judges observed: On this point, there is a decision of this High Court reported in Mackenzi V/s. Thiruvengadathan (1886) I.L.R. 9 Mad. 271 of Muthuswamy Aiyar and Brandt, JJ., confirming the judgment of Parker, J., to the effect that the writing must show that the payment was made towards the debt in question and this seems to us to be the interpretation warranted by the language of the proviso, which speaks of the payment, referring apparently to part-payment of the principal of the debt; that is to say, there must appear in the payee's writing an endorsement that the payment was in the nature of and intended to be part-payment of the principal.