A SUBBA RAO Vs. PARASURAMA PATTAR

JUDGEMENT

(1.) THE plaintiff s suit was dismissed by the Subordinate Judge on the ground that it was barred by limitation. He held that Ex. B did not contain an acknowledgment of liability. I am unable to agree with him. It is necessary to state the facts which led to the writing of Exhibit B, before deciding whether it contains an acknowledgment of liability. THE plaintiff was a subscriber to a chit fund of which the defendant was the manager. THE assignor of the plaintiff was entitled to some money from this defendant and the plaintiff s case is that that money was assigned to him. THEreupon he wrote to the defendant a letter asking him to credit towards the chit the amount due under the assignment deed in his favour and to pay him the balance of the subscription amount. In reply to that Exhibit B was written. Ex. B contains these statements. You have not shown me the deed of assignment under which you make the claim, Further I have been issued an Injunction Order prohibiting me from paying the amount to anybody. A third party named Sundara Row has sent me a notice that the amount is due to him. After making these statements, the letter goes on to say "THE position of affairs is this. THErefore you are informed that you must send me the amount of subscription and I cannot give you credit for anything." THE question now is whether these statements amount to an acknowledgment of liability. Mr. Sivarama Menon did not seriously contest the proposition, that an acknowledgment may be implied as well as express. THE judgment of the Judicial Committee in Sukhamoni Chowdharani v. Khan Chander Roy (1898) I.L.R. 25 C. 844 says, that we can spell out such an acknowledgment provided the liability is shown to be subsisting. THEre is also a decision of the Allahabad High Court in Medh Raj v. Mathura Das (1918) I.L.R. 35 A. 437 where the learned Judges point out that a liberal construction should be placed upon documents purporting to be acknowledgments. My construction of Exhibit B is, that the writer acknowledged that the amount mentioned in the assignment bond is due and owing, but that he is unable to pay because no assignment deed was shown to him and also because there were counter-claimants who claimed the amount for themselves. In my opinion Exhibit B does contain an acknowledgment of liability.

(2.) THE learned Vakil for the counter-petitioner has drawn my attention to several authorities of this Court, but as I read them, they do not affect the present question. In Venkataramanayya v. Srimvasa Rau (1882) I.L.R. 6 M. 182 a debtor wrote to say that he had a mulgeni right, and it was sought to infer from that, that a general tenancy was acknowledged, and that therefore a chalgeni tenancy could be implied, though there was certainly no acknowledgment of the particular right claimed by the creditor. In Periyavenkdn Udaya THEvar v. Subramanian Chett (1896) I.L.R. 20 M. 239 there was no acknowledgment of any subsisting liability. In Andiappa Chetti v. Alasinga Naidu (1911) I.L.R. 36 M. 68 the debtor wanted to look into the accounts and then say whether anything was due. THEse and the other authorities quoted do not help me in coming to a conclusion one way or the other. As I said before, Sukchamoni Chowdhrani v. Isan Chunder Boy (1898) I.L.R. 25 C 844 is the only case which comes near the present one, and in that case the Judicial Committee implied an acknowledgment from the language used. In my opinion, Exhibit B. does impliedly say that the debt is due but that the defendant is unable to pay it because of the circumstances mentioned by him in that letter. In this view I think I must reverse the decision of the Subordinate Judge and direct him to dispose of the case on the merits. Costs to abide the result.