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1957 DIGILAW 169 (MP)

Nandkishor Surajbali Sharma v. Onkarlal Blshanlal Agarwal

1957-09-24

V.R.NEWASKAR

body1957
ORDER V.R. Newaskar, J. This revision petition involves a question regarding limitation-Plaintiff Onkarlal filed a suit for recovery of Rs. 738-4-0 against Defendant Nandkishor, on the allegations that the Plaintiff had entrusted to the Defendant at Jabalpur, 14 maunds and 10 seers of Alluminium goods on different dates from 25th January 1950 to 7th February 1950 for sale; that the Defendant sold the goods at Rs. 34 per maund and intimated the fact of that sale by letters dated 20-2-1950 and 2-3-1950; that the Defendant by his letter dated 10-4-1950 admitted his liability in respect of the sale price of the goods in question and agreed to send a draft in discharge of that liability so as to reach the Plaintiff at Mhow by 20th May 1950; that the Plaintiff accepted that agreement and waited for the payment in the manner agreed but that no payment was made by the Defendant. The Plaintiff, therefore, claimed Rs. 479-8-0 as the price of the goods and Rs. 258-12-0 as interest as per usage of the market. The suit was filed on 16-6-1953. The Defendant inter alia raised the question of limitation. The trial Court fixed issue No. 6 covering that contention and tried the same as preliminary. He held that inasmuch as the Defendant had agreed to send the draft in satisfaction of the amount by 20th May 1950, the suit filed on 16-6-1953 was within time as the Courts had been closed for summer vacation up to 15-6-1953. The Defendant has preferred this revision petition challenging the legality of the view taken, as a result of which the Court could proceed further with the suit for determination of other questions in controversy. Mr. Garg who appears for the Defendant-petitioner contends that the letter dated 10-4-1950 cannot be construed to be a contract giving fresh start for limitation. It was pointed out by the Learned Counsel that all that was intended by the letter is to intimate the fact that the payment would be deferred till that date. There was neither any offer nor its acceptance by the Plaintiff. Moreover the letter was not addressed to the Plaintiff but to his son who was separate. The Learned Counsel relied upon the decisions reported in Waman v. Deorao 6 NLJ 14 : A I R 1922 Nag. 256 , T.S. Somasundaram v. Krishna AIR 1927 Mad. There was neither any offer nor its acceptance by the Plaintiff. Moreover the letter was not addressed to the Plaintiff but to his son who was separate. The Learned Counsel relied upon the decisions reported in Waman v. Deorao 6 NLJ 14 : A I R 1922 Nag. 256 , T.S. Somasundaram v. Krishna AIR 1927 Mad. 1200 and Kovuru Kalappa v. Kumar Krishna A I R 1945 Mad. 10 in support of his contention that the mere intimation by the Defendant that the payment would be deferred does not amount to an agreement so as to extend time for performance and does not give rise to a fresh cause of action. On the other hand Mr. Narayanlal Singhal contended that the letter was clearly in effect a proposal to the Plaintiff to wait till 20th May 1950 and not to file a suit. The Plaintiff by his conduct accepted the proposal by waiting till that date in pursuance of the Defendant's proposal. He waited still further because the law gave him that right by providing three years' limitation for filing a suit subject to other provision of the Limitation Act. It was, therefore, urged that the Plaintiff acquired a fresh cause of action and the view taken by the Court below was proper. The Learned Counsel relied upon the decisions in Ranga Ram Thakurdas v. Raghbir S. A I R 1928 Lah. 938, Maidens Hotel, Delhi v. Willnott AIR 1935 Lah. 984 and Deoraj Tewari v. Indrasen Tewari A I R 1929 Pat. 258. The letter dated 10-4-1950 is as follows: 728 Ghamapur, Shnman Bhai Gopikisanji, Jabalpur, 10/4 Jai Gopal. I have returned today. I received your letter (and) learned its contents. I have invested my funds in a factory hence kindly wait for fifteen days more. I shall send a draft of Rs. 500 on 28-4-1950. As regards Bade Seth (the Plaintiff) you may tell him that booking of brass is closed (at present). Price of Aluminum goods will reach him by 20-5-50 by means of a draft. You should have confidence and need not be frightened. There will be no departure. Big promises of Bade Seth have put me to great loss and you may explain to him that it is not good to let down anybody i. e. after giving a promise, it is not broken. I was almost hanged by his promise. You should have confidence and need not be frightened. There will be no departure. Big promises of Bade Seth have put me to great loss and you may explain to him that it is not good to let down anybody i. e. after giving a promise, it is not broken. I was almost hanged by his promise. I sent to him several letters these days but received no answer. So kindly write to me the reasons therefore.... etc. All that this letter means is that Plaintiff's son is told to intimate to the Plaintiff that price of Aluminum goods would reach him by 20-5-1950. There is neither any request for not filing any suit, nor any offer made about anything which was to be accepted either expressly or by any conduct on the part of the Plaintiff. The letter at the most might be construed as an acknowledgment of the price of Aluminum goods but in no case can it be construed to be an offer much less an agreement to extend time up to 20-5-1950 for payment so as to give fresh cause of action from that date. Now if it be an acknowledgment, it can be used to extend the period of limitation to the extent to which the Limitation Act, Section 19 itself permits. The language of Section 19 indicates that where an acknowledgment of any liability is made a fresh period of limitation is to be computed from the time when the acknowledgment was signed. The explanation I to Section 19 of Limitation Act indicates that an acknowledgment is good to save limitation even if it be addressed to a person other than the person entitled to the right in question. In the present case therefore the letter dated 10-4-1950 is good to serve as an acknowledgment of Defendant's liability to Plaintiff in respect of price of Aluminum goods though the letter is addressed to Plaintiff's son Gopikisan. It is, however, not possible to construe the letter as an offer made to Plaintiff to extend time with the intention of receiving his consent thereto. Section 63 of the Contract Act does not indicate that no consideration is needed for an agreement to extend time. But to bring about this result regarding extinction of time, there should be an agreement. This means that there should be a proposal for extension of time and its acceptance. Section 63 of the Contract Act does not indicate that no consideration is needed for an agreement to extend time. But to bring about this result regarding extinction of time, there should be an agreement. This means that there should be a proposal for extension of time and its acceptance. The proposal must proceed from the promissory to the promise with a view to obtain his assent. Where a promise is formed as a result of the communication the law is strict and Section 4 of the Contract Act gives circumstances when the communication of acceptance is complete as against the proposes and acceptor. It is difficult to construe the present letter as a proposal by the debtor to extend time which the Plaintiff was to accept. It is merely an intimation given to third person and intended to be conveyed to the Plaintiff involving an assurance that he would receive payment by a particular date. The act is unilateral and does involve an acknowledgment but it does not go beyond that. Now being an acknowledgment pure and simple, fresh period of limitation applicable to the liability in question is to be computed from the date of the letter and not from any other date. The three cases relied upon by the opponent have no application in the present case. In Banga Ram Thakurdas v. Raghbir S. AIR 1928 Lah. 938 a surety conveyed by a letter to the Plaintiff that he should advance money to the debtor-defendant up to a certain amount and that he could be responsible for its repayment. Money was advanced in pursuance of the letter but not repaid by the debtor. In a suit by the Plaintiff as against both the debtor and the surety, it was contended that there was no acceptance of his proposal conveyed to him by the Plaintiff and that therefore there was no contract. Bhide J. repelled the contention holding that the terms of the letter sent by the surety were such that the acceptance of the surety's offer was to be complete not by any communication sent to him by the Plaintiff, for the purpose but by his conduct of making payment to the debtor as directed. In this case no such thing is involved. Mr. In this case no such thing is involved. Mr. Singhal's contention that the acceptance in the present case is involved in Plaintiff's conduct in waiting and not filing suit till 20-5-1950 has no force. There is no proposal for waiting till 20-5-1950 extended for the Plaintiff nor a request to him for not filing any suit. The second case reported in Maidens Hotel, Delhi v. Willnott AIR 1935 Lah. 984 refers to an agreement to pay a time-barred debt and has no application to the present case. The third case reported in Deoraj Tewari v. Indrasen AIR 1929 Pat. 258 is also referable to a promise to pay a barred debt. In the present case no question of a promise to pay barred debt arises. Extension of time for performance of a promise involves bilateral acts of the parties. The Defendant cannot, by merely saying that he would make payment on a particular date, bind the Plaintiff, nor can the Plaintiff hold the Defendant bound merely due to his intimation of the likely date of payment which the former did not accept. In this case moreover the communication by the Defendant is not to the Plaintiff but to a third person. The finding given by the lower Court on issue No. 6 regarding limitation is erroneous. The petition is therefore allowed and the finding of the lower Court on the issue of limitation is set aside and Plaintiff's suit is held barred by time and is hereby dismissed with costs. Petition allowed.