FADALILAL Vs. ROOCHAND

JUDGEMENT

(1.) THE plaintiffs sue for Rs. 876-7-0. Their case is that on 23rd July 1923 Rs. 1,300 were due by the defendant to them on old accounts. The plaintiffs intended suing and got a plaint drafted, but the defendant then agreed to execute a sarkhat for Rs. 670 and to secure it by the pledge of gold ornaments already held by the plaintiffs on old pledges, and to execute another sarkhat for Rs. 630, pay all the expenses which the plaintiffs incurred in preparing their suit and to pay interest at 12 as. per cent, per mensem. The defendant therefore executed the sarkhats Exs. P-2 and P-3 on 23rd July 1923. He did not redeem the ornaments mentioned in Ex. P-2, and these were sold, fetching Rs. 668. The balance due on the two sarkhats with interest came no Rs. 876-7-0.

(2.) THE defendant's story was that he executed the first sarkhat Ex. P-1 without understanding the accounts. This was for Rs. 1,025. He also executed the other two sarkhats, Exs. P-2 and P-3, at. the plaintiff's shop as the defendant's brother told him that he had made an account of his own debts with the plaintiffs and that to meet the plaintiffs' wishes the defendant should go and execute them. The defendant further contended that the claim was time barred and also that he is not liable to pay interest at higher rate than the rate of interest originally agreed upon between the parties.

(3.) THE trial Court held that the defendant executed the two sarkhats, that he agreed to pay interest at 12 as. per cent, per mensem and agreed to pay the costs of the plaint which amounted to Rs. 20. As regards the sarkhat for Rs. 1,025, the first Court found that the defendant failed to prove that he executed them without understanding the accounts and that the other two sarkhats were signed under any mistake, Dealing with the amount due, the trial Court finds that the defendant did promise to pay Rs. 1,300, and that for this amount sarkhats for Rs. 670 and Rs. 630 were executed; but the agreement being oral could not help the plaintiffs under Section 25(3),. Contract Act, unless the acknowledgments (Ex. P-2 and Ex. P-3) could be interpreted to be those "agreements in writing and signed" by the defendant. The Court finds that an unconditional acknowledgment such as Exs. P-2 and P-3 has always been held to imply a promise to pay, but that as held in Ratan Lall v. Anwarkhan [1920] 2 N.L.J. 216 such an implied promise to pay is not a contract within the meaning of Section 25(3), Contract Act. A portion of the claim evidenced by the first sarkhat for Rs. 1,025 was held time barred. The Judge writes: