BICHITRANAND SAHU Vs. MIR MAHEBUB ALI

JUDGEMENT

(1.) This is a plaintiffs second appeal against a judgment of affirmance, dismissing the suit. The appellants sued for recovery of Rs. 1238-5-0 due on a handnote dated 10-12-1926, executed by the defendant for Rs. 700.It was alleged that the defendant had paid Rs. 162 towards interest on different dates, and had noted the payments on the back of the hand note. The hand note specified interest at 24 per cent. per annum, but interest was claimed only at Rs. 12 per cent. simple, and Rs. 248-10-3 was remitted.

(2.) It is unnecessary to consider the defence, for it has been disbelieved by both the Courts below, who have found that the plaintiffs had established their case, but both Courts have held that the suit was barred by limitation. The account shows numerous payments in the year 1927, one payment of Rs. 10 on 2-91930, one of Rs. 10 on 17-8-1933, and one of Rs. 6 on 11-8-1936. The payments of 1933 and 1936 are endorsed as being towards interest, but that of 1930 is not so endorsed. It is not the appellants case that this payment was appropriated towards principal. Therefore, the legal position is that, unless this payment of 1930 was a payment of interest as such, the claim would be barred by the lapse of more than three years between 1927 and 1938: see the leading case Rama Shah V/s. Lalchand (.) Both the Courts below have assumed that it was the plaintiffs case that they had appropriated the payment towards interest, which would, of course, not save limitation, but a perusal of the plaint shows that that was not the plaintiffs case. Their case was not that they had made the appropriation, but that the payment had been made towards interest, that is to say, it was a payment of interest as such. It has been clearly laid down by the Privy Council, see National Bank of Upper India V/s. Banshidhar A.I.R. 1929 P.C. 297 that it is not necessary that the endorsement shall itself show that the payment was of interest as such. That can be established by external evidence, so that even where the endorsement is in blank it may be possible to show that the payment was towards interest as such.

(3.) Admittedly, in the present case there is no evidence on the point. The plaintiffs succeed on the pleadings or not at all. It is contended that they must succeed on the pleadings, because it is clearly asserted in para. 2 of the plaint that the whole sum of Rs. 162 was paid towards interest, and this has been nowhere specifically denied in the written statement. I am of opinion that this contention is correct. Under Order 8, Rule 5, Civil P.C., Every allegation of fact in the plaint, ii not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. Further, under Order 8, Rule 3: It shall not be sufficient for a defendant in his written statement to deny generally the grounds urged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.