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1944 DIGILAW 194 (ALL)

Dwarka Prasad v. Messrs. Kunji Lal Ram Gopal

1944-10-20

MALIK

body1944
JUDGMENT Malik, J. - The Plaintiff was the commission agent of the Defendant and he entered into certain transactions on behalf of the Defendant. The Defendant directed him on the 3rd of May, 1939 to purchase certain bags of sugar. In stead of taking delivery the Defendant directed that these bags of sugar might be sold. They were sold at a loss of Rs. 655. The Plaintiff claimed this amount along with his commission, dalah and other charges, the total claim being for Rs. 800-7-0. On the 3rd of July 1939 the Defendant's munim wrote to the Plaintiff a letter in which he mentioned that he would be paying the amount to the Plaintiff within eight or nine days. As a matter of fact, on the 19th of July 1939 a sum of Rs. 400 was paid. The balance not having been paid by the Defendant this suit was filed by the Plaintiff on the 9th of July 1942. The suit was decreed by the trial Court and it is against that order that this revision has been filed. 2. Learned Counsel for the applicant has urged that the suit was time-barred. It is admitted before me that there was no acknowledgment in writing of the payment of this sum of Rs. 400 by the Defendant. So this payment for Rs. 400 cannot save Tga (sic)under Section 20 of the Limitation Act. Plaintiff's learned Counsel has /m(sic) on a letter dated the 3rd of July (sic) as an acknowledgment to save limitation. The letter dated the 3rd of July would clearly amount to an acknowledgement the Defendant's munim had authority to acknowledge the debt on behalf of the Defendant. I shall assume that the munim had such authority and treat the letter as a good acknowledgment, but even in that case u/s 19 of the Limitation Act the period of limitation shall be computed from the time(sic) when the acknowledgment was so signed." 3. The period of limitation should, therefore, have been computed from the 3rd of July 1939. The lower Court took into account the eight or nine days within which the payment was to be made. The period of limitation should, therefore, have been computed from the 3rd of July 1939. The lower Court took into account the eight or nine days within which the payment was to be made. If this letter could be treated as a fresh contract between the parties, then of course there could be a cause of action on the expiry of eight or nine days, but it is nobody's case that this letter embodied a fresh contract. It was used merely as an acknowledgment in the plaint. As an acknowledgment it can save limitation only upto the 3rd of July 1942 and not up to the 9th of July when the suit was filed. The suit was, therefore, clearly barred by six days limitation. The suit should, therefore, have been dismissed on the ground of limitation. 4. In the result I allow this revision, set aside the decree of the Court below and direct that the Plaintiff's suit shall stand dismissed. As the loss had really been incurred and there is no dispute on the merits before me, I think it is a fit case where I should direct that the parties shall bear their own costs throughout.