TULSIRAM SHRIKISAN MARWADI Vs. ZABOO BHIMA SHANKAR

JUDGEMENT

(1.) THE facts of this appeal are similar to those in Second Appeal No. 346 of 1943 and need not be re-stated. The amounts were borrowed as follows: Rs. 1000 on 19th February 1924; Rs. 500 on 19th May 1944; re-payment Rs. 250 on 19th March 1925. On 24th January 1927, Rs. 1829 were due and an acknowledgment was taken. Similarly on 3lst May 1929 a sum of Rs. 2401-10.3 was found due and an acknowledgment was taken. Then on 12th June 1933, i.e., more than three years after 31st May 1929 an acknowledgment was taken for Rs. 8458-2-0. On 8th May 1935 a sum of Rs. 100 was repaid and the defendant Bhima Shankar signed the ticket bahi in token thereof. From 22nd January 1936 to 2lst July 1988 proceedings were pending before the Debt Conciliation Board. The plaintiffs, therefore, claimed their suit to be within time.

(2.) THE facts are so similar to the facts of Second Appeal No. 846 of 1943 that there would have been no necessity to deliver a separate judgment but for one fact. In addition to the acknowledgment dated 12th June 1932 which was ineffective to save limitation, the plaintiffs in this case obtained from the defendant Bhima Shankar a letter which is Ex. P-4. It reads as follows: To Tulsiram Shankarlal Marwadi, from Bhima shankar Isappa Wani, resident of Sangaon. Compliments. Further. The reason for writing the letter is that I have this day taken from you Rs. 3458-2-0 and affixed a stamp. (I) will pay interest on this at the rate of Re. 1 per cent. per mensem Mitti Jestha Sudi 8, Samvat 1989, dated 12th June 1932. By the hand of self. Signature. Signature of Bhimashankar Isappa in the hand of self.

(3.) WE have laid down in the connected appeal that there must be an express promise in writing before Section 25(3) can be said to operate and that a mere implied promise is not enough. In this case in EX.P-4 the money was stated to have been paid on 12th June 1932 and in addition to the acknowledgment there was a promise to pay interest at Re. 1 per cent. per mensem. It was said that a promise to pay interest is not made without there being a promise to pay the principal and, therefore, this promise to pay interest must be read as a promise to pay the whole sum including interest. In support of this case a large number of authorities were cited and we propose to review some of them before stating our own opinion as to the interpretation of Section 25(3).