Govinda Padayachi Vs. Uthandi Padayachi - Court Judgment

Excerpt:
- - he resisted it on the ground that there was partial failure of consideration that there was partial discharge that the endorsement was not true that defendant is entitled to the benefits of debt relief acts and that the suit claim was barred by time. 20 of 1987 and having failed there, has come forward with this revision petition. 41 and had held that these decisions can no longer be considered good law under the new act.orderpratap singh, j.1. this civil revision petition is directed against the judgment in a.s. no. 20 of 1987 on the file of subordinate judge, cuddalore, confirming the judgment in o.s. no. 1322 of 1982 on the file of district munsif, panrutti.2. short facts are : the respondent has filed the suit on the foot of a pronote against the revision petitioner. he resisted it on the ground that there was partial failure of consideration that there was partial discharge that the endorsement was not true that defendant is entitled to the benefits of debt relief acts and that the suit claim was barred by time. after trial, the learned district munsif had rejected all the objections raised by the defendant and decreed the suit. aggrieved by the same, the defendant has filed appeal in a.s. no. 20 of 1987 and having failed there, has come forward with this revision petition.3. mr. v. narayanaswamy, the learned counsel appearing for the revision petitioner, would submit that the plaintiff relied upon the endorsement ex. a-2, dated 15.11.1979 that the said endorsement was not accepted by the defendant and the courts below were wrong in accepting ex. a-2. he would further submit that the endorsement in ex. a-2 was payment of rs. 50 towards interest and that would not amount to an acknowledgement under section 18 of limitation act. he would further submit that the date of pronote was 13.4.1975, date of part payment and endorsement therefor was dated 15.11.1979 which falls outside the period of three years and as such ex. a-2 cannot save limitation. he would further submit that though ex. a-2 was during the period of moratorium, after the new limitation act came into force, only if acknowledgement was made within the period of three years, that can be taken into account and any acknowledgement made beyond the period of three years would not save limitation. i have heard mr. s. venkateswaran, the learned counsel appearing for the respondent, on the above aspects.4. i have carefully considered the submissions made by the rival counsels. i shall first advert to the genuineness of ex. a-2. regarding ex. a-2. the stand taken in the written statement in para. 6 reads as follows:the endorsement is not true. it was misrepresented by the plaintiff as that he was getting the defendant's signature for the purpose of discharging the promissory note. this defendant is an innocent and illiterate except he knows to write his name and old age.there is no plea that there was no endorsement whatsoever and his signature alone was taken. the stand taken was that the endorsement is not true and if it is taken along with other portion of para. 6, it would mean that the contents of endorsement are not true. while so, the submission of mr. v. narayanaswamy that p.w. 2, the scribe has admitted that while he made the endorsement, the signature was already there and so it must be taken that mere signature was obtained and later endorsement was taken, cannot be accepted. mr. narayanaswamy pointed out that there is some space left in between the endorsement and signature of the defendant in ex. a-2 and thus there is intrinsic evidence to show that the signature must have been obtained earlier and endorsement must have been prepared later. but in the absence of any such specific plea in the written statement, i am unable to accept this submission. the person who wrote the endorsement figured as p.w. 2 and has testified it. the finding of the courts below do not appear to be incorrect.5. i shall next pass on to the submission of mr. narayanaswamy that even assuming ex. a-2 is correct, the endorsement in it was only for payment of rs. 5 towards interest and that would not amount to an acknowledgement. in this regard, he relied upon the ruling reported in kalavagunta narasinga rao garu v. veupolapati rangayya (1941) 2 m.l.j. 610 : a.i.r. 1943 mad. 133 : 55 l.w. 808 : 1942 m.w.n. 685 : 205 i.c. 546. in that case, the suit was laid on the foot of a promissory note 1 with two endorsements. the endorsements merely state that so much amount was paid. it was held that those endorsements did not save limitation under section 20 of the limitation act. inasmuch as it merely amounts to statement of fact that so much amount was paid. in this case, the learned counsel for the respondent would say that it would satisfy section 19 of the limitation act. as per section 19, sub-section (1) where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt a fresh period of limitation shall be computed from the time when the payment was made. in this case, there was an endorsement for payment of debt. so it would fall within the purview of section 19(1) of limitation act and hence i am unable to accept this submission of mr. narayanaswamy.6. i shall next pass on to the submission of mr. narayanaswamy that ex. a-1 was dated 13.4.1975, ex. a-2 endorsement was dated 15.11.1979 and it falls out side the period of three years and assuming it is true and assuming it falls within the purview of section 19(1) of limitation act, unless it was within the period of three years, it has to be ignored and it cannot be taken as saving limitation. to consider this submission, section 19 needs extraction. it reads as follows:19. effect of payment ort account of debt or of interest on legacy : where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised 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 the 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.[emphasis supplied].7. in section 2(j) of the limitation act, 'prescribed period' is defined and it reads as follows:'period of limitation' means the period of limitation prescribed for any suit, appeal or application by the schedule, and 'prescribed period' means the period of limitation computed in accordance with the provisions of this act.8. in ramachandra iyer v. vadivelu 1987 t.n. l.j. 282, justice kader had occasion to consider the impact of the new limitation act with reference to 'prescribed period'. the effect of making an acknowledgement during the period of moratorium, in which the learned judge has held that this is a new provision introduced by the act of 1963. the old act contained no such definition of the expression 'prescribed period'. it was held under the old act that even in cases where the plaintiff was entitled to the exclusion of a time under the provisions of some other act, the period would be a 'period prescribed' within the meaning of section 19 of that act and saved limitation. then the learned judge had referred to the rulings rendered in subbaraya v. eswaramoorthy : air1963mad202 and firm kamta prasad gulzari lal a.i.r. 1975 all. 41 and had held that these decisions can no longer be considered good law under the new act. the expression 'prescribed period' is now defined to mean the 'period of limitation' prescribed by the schedule and computed according to the sections in the act. by the limitation act of 1963, a period which is required to be excluded under the provisions of some other act, in computing the period of limitation, cannot be treated as a 'prescribed period' and an acknowledgment made during that period will not be sufficient for the purpose of section 18 of the limitation act of 1963. with respect, i agree with the view expressed by the learned judge.9. the lower appellate court had relied upon the ruling subbaraya v. eswaramoorthy : air1963mad202 referred to supra. but that ruling was rendered under the old limitation act. in sayana gounder v. veerappa gounder : air1959mad278 , this court had held that madras indebted agriculturists (temporary relief) ordinance (v of 1953) which had come into force before the expiry of the period of limitation for the suit, followed by acts v of 1954 and act i of 1956 prohibited the filing of a suit till 1st july, 1955 and the endorsement made on 23rd june, 1955 validly saved the limitation for the suit. that ruling was rendered under limitation act (ix of 1908). in subbaraya v. eswaramoorthy : air1963mad202 , a division bench of this court had considered the distinction between section 14 and 19 of limitation act,' 1908. in ramachandra iyer v. annamalal chettiar : air1968mad103 , a division bench of this court had occasion to consider the acknowledgment during the extended period of limitation under section 13 of the limitation act (ix of 1908). there rulings were rendered under the old limitation act, where there is no definition of expression 'prescribed period'. under the new limitation act, 'prescribed period' is defined in section 2(j) of limitation act.10. on the fact of this case ramachandra iyer v. vadivelu 1987 t.n. l.j. 282, referred to supra, is alone applicable. while beyond the period of limitation and hence it would not save the suit from the bar of limitation and on that ground, the suit is liable to be dismissed. the courts below have not considered this aspect of the case and hence they have come to an erroneous conclusion and decreed the suit. that cannot stand in view of what i have stated and they are liable to be set aside. the civil revision petition is allowed, setting aside the judgments in a.s. no. 20 of 1987 and o.s. no. 1322 of 1982 and consequently o.s. no. 1322 of 1982 on the file of district munsif, panrutti shall stand dismissed, without costs. no costs in this c.r.p.

Judgment:
ORDER

Pratap Singh, J.

1. This civil revision petition is directed against the judgment in A.S. No. 20 of 1987 on the file of Subordinate Judge, Cuddalore, confirming the judgment in O.S. No. 1322 of 1982 on the file of District Munsif, Panrutti.

2. Short facts are : The respondent has filed the suit on the foot of a pronote against the revision petitioner. He resisted it on the ground that there was partial failure of consideration that there was partial discharge that the endorsement was not true that defendant is entitled to the benefits of Debt Relief Acts and that the suit claim was barred by time. After trial, the learned District Munsif had rejected all the objections raised by the defendant and decreed the suit. Aggrieved by the same, the defendant has filed appeal in A.S. No. 20 of 1987 and having failed there, has come forward with this revision petition.

3. Mr. V. Narayanaswamy, the learned Counsel appearing for the revision petitioner, would submit that the plaintiff relied upon the endorsement Ex. A-2, dated 15.11.1979 that the said endorsement was not accepted by the defendant and the courts below were wrong in accepting Ex. A-2. He would further submit that the endorsement in Ex. A-2 was payment of Rs. 50 towards interest and that would not amount to an acknowledgement under Section 18 of Limitation Act. He would further submit that the date of pronote was 13.4.1975, date of part payment and endorsement therefor was dated 15.11.1979 which falls outside the period of three years and as such Ex. A-2 cannot save limitation. He would further submit that though Ex. A-2 was during the period of moratorium, after the new Limitation Act came into force, only if acknowledgement was made within the period of three years, that can be taken into account and any acknowledgement made beyond the period of three years would not save limitation. I have heard Mr. S. Venkateswaran, the learned Counsel appearing for the respondent, on the above aspects.

4. I have carefully considered the submissions made by the rival counsels. I shall first advert to the genuineness of Ex. A-2. Regarding Ex. A-2. The stand taken in the written statement in para. 6 reads as follows:

The endorsement is not true. It was misrepresented by the plaintiff as that he was getting the defendant's signature for the purpose of discharging the promissory note. This defendant is an innocent and illiterate except he knows to write his name and old age.

There is no plea that there was no endorsement whatsoever and his signature alone was taken. The stand taken was that the endorsement is not true and if it is taken along with other portion of para. 6, it would mean that the contents of endorsement are not true. While so, the submission of Mr. V. Narayanaswamy that P.W. 2, the scribe has admitted that while he made the endorsement, the signature was already there and so it must be taken that mere signature was obtained and later endorsement was taken, cannot be accepted. Mr. Narayanaswamy pointed out that there is some space left in between the endorsement and signature of the defendant in Ex. A-2 and thus there is intrinsic evidence to show that the signature must have been obtained earlier and endorsement must have been prepared later. But in the absence of any such specific plea in the written statement, I am unable to accept this submission. The person who wrote the endorsement figured as P.W. 2 and has testified it. The finding of the courts below do not appear to be incorrect.

5. I shall next pass on to the submission of Mr. Narayanaswamy that even assuming Ex. A-2 is correct, the endorsement in it was only for payment of Rs. 5 towards interest and that would not amount to an acknowledgement. In this regard, he relied upon the ruling reported in Kalavagunta Narasinga Rao Garu v. Veupolapati Rangayya (1941) 2 M.L.J. 610 : A.I.R. 1943 Mad. 133 : 55 L.W. 808 : 1942 M.W.N. 685 : 205 I.C. 546. In that case, the suit was laid on the foot of a promissory note 1 with two endorsements. The endorsements merely state that so much amount was paid. It was held that those endorsements did not save limitation under Section 20 of the Limitation Act. Inasmuch as it merely amounts to statement of fact that so much amount was paid. In this case, the learned Counsel for the respondent would say that it would satisfy Section 19 of the Limitation Act. As per Section 19, Sub-section (1) where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt a fresh period of limitation shall be computed from the time when the payment was made. In this case, there was an endorsement for payment of debt. So it would fall within the purview of Section 19(1) of Limitation Act and hence I am unable to accept this submission of Mr. Narayanaswamy.

6. I shall next pass on to the submission of Mr. Narayanaswamy that Ex. A-1 was dated 13.4.1975, Ex. A-2 endorsement was dated 15.11.1979 and it falls out side the period of three years and assuming it is true and assuming it falls within the purview of Section 19(1) of Limitation Act, unless it was within the period of three years, it has to be ignored and it cannot be taken as saving limitation. To consider this submission, Section 19 needs extraction. It reads as follows:

19. Effect of payment ort account of debt or of interest on legacy : Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised 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 the 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.

[emphasis supplied].

7. In Section 2(j) of the Limitation Act, 'prescribed period' is defined and it reads as follows:

'period of limitation' means the period of limitation prescribed for any suit, appeal or application by the schedule, and 'prescribed period' means the period of limitation computed in accordance with the provisions of this Act.

8. In Ramachandra Iyer v. Vadivelu 1987 T.N. L.J. 282, Justice Kader had occasion to consider the impact of the new Limitation Act with reference to 'prescribed period'. The effect of making an acknowledgement during the period of moratorium, in which the learned Judge has held that this is a new provision introduced by the Act of 1963. The Old Act contained no such definition of the expression 'prescribed period'. It was held under the old Act that even in cases where the plaintiff was entitled to the exclusion of a time under the provisions of some other Act, the period would be a 'period prescribed' within the meaning of Section 19 of that Act and saved limitation. Then the learned Judge had referred to the rulings rendered in Subbaraya v. Eswaramoorthy : AIR1963Mad202 and Firm Kamta Prasad Gulzari Lal A.I.R. 1975 All. 41 and had held that these decisions can no longer be considered good law under the new Act. The expression 'prescribed period' is now defined to mean the 'period of limitation' prescribed by the schedule and computed according to the sections in the Act. By the Limitation Act of 1963, a period which is required to be excluded under the provisions of some other Act, in computing the period of limitation, cannot be treated as a 'prescribed period' and an acknowledgment made during that period will not be sufficient for the purpose of Section 18 of the Limitation Act of 1963. With respect, I agree with the view expressed by the learned Judge.

9. The lower appellate court had relied upon the ruling Subbaraya v. Eswaramoorthy : AIR1963Mad202 referred to supra. But that ruling was rendered under the old Limitation Act. In Sayana Gounder v. Veerappa Gounder : AIR1959Mad278 , this Court had held that Madras Indebted Agriculturists (Temporary Relief) Ordinance (V of 1953) which had come into force before the expiry of the period of limitation for the suit, followed by Acts V of 1954 and Act I of 1956 prohibited the filing of a suit till 1st July, 1955 and the endorsement made on 23rd June, 1955 validly saved the limitation for the suit. That ruling was rendered under Limitation Act (IX of 1908). In Subbaraya v. Eswaramoorthy : AIR1963Mad202 , a Division Bench of this Court had considered the distinction between Section 14 and 19 of Limitation Act,' 1908. In Ramachandra Iyer v. Annamalal Chettiar : AIR1968Mad103 , a Division Bench of this Court had occasion to consider the acknowledgment during the extended period of limitation under Section 13 of the Limitation Act (IX of 1908). There rulings were rendered under the old Limitation Act, where there is no definition of expression 'prescribed period'. Under the new Limitation Act, 'Prescribed period' is defined in Section 2(j) of Limitation Act.

10. On the fact of this case Ramachandra Iyer v. Vadivelu 1987 T.N. L.J. 282, referred to supra, is alone applicable. While beyond the period of limitation and hence it would not save the suit from the bar of limitation and on that ground, the suit is liable to be dismissed. The courts below have not considered this aspect of the case and hence they have come to an erroneous conclusion and decreed the suit. That cannot stand in view of what I have stated and they are liable to be set aside. The civil revision petition is allowed, setting aside the judgments in A.S. No. 20 of 1987 and O.S. No. 1322 of 1982 and consequently O.S. No. 1322 of 1982 on the file of District Munsif, Panrutti shall stand dismissed, without costs. No costs in this C.R.P.