GANAPATHY MUDALY Vs. OMUNISAWMY MUDALY

JUDGEMENT

(1.) The suit is brought to recover the amount due, Rs. 582-0-0 on two promissory-notes executed by the defendant's father and in default of payment for the sale of certain properties, the title-deeds whereof were deposited with the plaintiffs as security by way of equitable mortgage. The execution of the promissory-notes is not denied and the finding of the City Civil Judge that the discharge alleged has not been proved, is not disputed before us. We agree with the City Civil Judge that the title-deeds were deposited with the plaintiff as security. They are produced by the plaintiff. The defendant's explanation that he got them by fraud and in collusion with Varadaraja Mudaliar is not supported by reliable evidence. No weight can be attached to the statement of Varadaraja Mudaliar that D. 1 and D. 2 were never given to him. ft was then argued before us that as Exhibit A, dated the 1 December 1904, is admitted to be a renewal of a prior promissory-note, dated the 1 January 1889, it is not enforceable as the debt had become barred before it was renewed and there is no reference in Exhibit A to a barred debt or no promise to pay the debt to bring it within the terms of Clause (3), Section 25 of the Contract Act.

(2.) Exhibit A runs thus: "On demand I promise to pay to O. Munisamy Mudaliar or order the sum of rupees (325) three hundred and twenty-five only with interest at 12 per cent, per annum in cash."

(3.) The City Civil Judge held that the debt was not barred as the whole interest due under the earlier promissory-note and a portion of the principal has been discharged at the time of Exhibit A. But there is no evidence that any amount at any time before the expiry of the period of limitation was paid for interest as such. Nor does the part-payment of the principal appear in the hand-writing of the debtor as required by Section 20 of the Limitation Act. We must, therefore, hold that the debt under the promissory-note of 18.99 was barred in 1904 at the time of Exhibit A.