SANTA PRASAD SINGH Vs. THAKUR HARKISHORE PRASAD SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal from a decree of the learned Subordinate Judge of Deoghar dismissing his claim for moneys due as principal and interest under a promissory note. On 10 February 1929 the defendant executed a promissory note for Rs. 9200 and by the terms of the said note he agreed to pay interest thereon at the rate of one per cent, per mensem. It appears that from time to time the defendant made payments to the plaintiff and these payments were all endorsed by the defendant in his ownnd on the back of the promissory note. At the date of this suit a sum of Rs. 15,652-12-0 was due and owing as principal and interest upon the said note. A number of defences were raised; but it is only necessary to consider one of them, namely limitation. The learned Judge found that the note had been duly executed and that the sum claimed was due for principal and interest. He however found that the claim was barred by limitation and accordingly dismissed the suit. The plaintiff contended that certain admitted payments made by the defendant extended the time of limitation and that the suit was within time.

(2.) The two payments relied upon were a payment of Rs. 400 on 21 April 1933, and a payment of Rs. 722-4-0 on 7 January 1934. These payments were within limitation, but according to the defendant's contention, they were not such payments as would extend the time in favour of the plaintiff. The payments are set out in para. 3 of the plaint and it is to be observed that nowhere is it stated whether these payments were made towards interest or towards principal or both. All that is pleaded is: That thereafter en 3 February 1932 the defendant repaid Rs. 70 and on 17 March 1932 repaid Rs. 60 and on 21 April 1933 repaid Rs. 400 and on 7 January 1934 repaid Rs. 722-4-0 towards the dues for the said loan and endorsed all the aforesaid repayments in his own hand on the back of the said promissory note. It is further clear from the next paragraph in the plaint that these payments were appropriated by the plaintiff towards interest, because he states that on 3 February 1936, that is when the plaint was filed, the sum of Rs. 9200 was due as principal, that is the original sum advanced and Rs. 6452-12-0 as interest. It is clear, therefore, that the plaintiff must have appropriated all the payments made towards interest. It is to be observed that the defendant does not deny this in his written statement.

(3.) He says that the allegations contained in paras. 3 and 4 of the plaint, which relate to payments and appropriation, are partially correct, though he says that the plaintiff had not given credit for all the amounts paid by the defendant. Further, it is clear that the defendant had made endorsements on the back of the promissory note in respect of each of these payments. Though the learned Judge was satisfied that two payments had been made within the period of limitation, yet he felt constrained to hold that the suit was barred by reason of certain decisions of other Courts upon the construction to be given to Section 20, Limitation Act. He accordingly dismissed the suit. The only point for consideration is whether time was extended by these payments by reason of Section 20(1), Limitation Act, as amended by Act 1 of 1927. Section 20(1), Limitation Act, as amended, is in these terms: Where interest on debt or legacy is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt or legacy, or by his agent duly authorized in this behalf, or where part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: Provided that, save in the case of payment of interest made before 1st day of January 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.