RAMPRABHA OJHA Vs. BISHUNATH OJHA

JUDGEMENT

(1.) This is an application in revision by a plaintiff whose suit for recovery of money due on a handnote has been dismissed as barred by limitation. The defendant had set up a plea of payment also, which was disbelieved by the lower Court.

(2.) As regards limitation, the position was that the handnote was executed on 29 Kuar 1340 and that on 30 Jeth 1311 the defendant took a fresh loan of Rs. 3 and had eight annas credited in his favour on account of the price of a katahal (jack fruit) previously supplied by him to the plaintiff, and had signed as correct the account that was made up on that date between the parties. The defendant's endorsement on the account was "Sahi Bishunath Ojha (defendant) hisab mokable bhail se sahi." The lower Court held that the account signed by defendant 1 must be shown by the plaintiff to be "an acknowledgment with promise to pay" before the plaintiff could succeed and that "liability to pay cannot in express and clear terms be inferred from the accounting." The learned Small Cause Court Judge accordingly held that there was no sufficient acknowledgment within Section 19, Lim. Act. It has been contended on behalf of the plaintiff petitioner that the view of the lower Court on this point is erroneous, and the contention is supported by authority. In Maniram Seth V/s. Seth Rupchand 33 Cal. 1047, Sir Arthur Wilson delivering the opinion of the Judicial Committee observed: An unconditional acknowledgment has always been held to imply a promise to pay, because that is the natural inference, if nothing is said to the contrary. It is what every honest man would mean to do.

(3.) There are several Madras cases in which it has been pointed out that an acknowledgment for the purposes of Section 19, Lim. Act, need not necessarily contain a promise to pay, or amount to a promise to pay. The endorsement made by the defendant in the present case acknowledged the correctness of an account which showed him a debtor to the extent stated. There is thus a dear acknowledgment of the debt, with the ordinary implication of a promise to pay, and this is sufficient for the purposes of Section 19, Lim. Act. There is no dispute that the acknowledgment was made on a date which saves the suit from being time-barred.