O. M. Noor Muhammed Rawther v. K. T. Cheru — 1958 DIGILAW 290 (KER)

Judgment :- 1. This is an Appeal by the defendant against the decree and judgment passed against him by the learned Additional District Judge of Trichur in O. S.92/51. 2. The Plaintiff filed the suit for recovery of a sum of Rs. 5, 500/ - on the basis of a promise stated to have been made by the defendant in a letter dated 12-2-49 and marked as Ext. C in these proceedings. 3. According to the Plaintiff, he was having arecanut business in Korancheri and in Kokkala at Trichur. The defendant was a dealer in arecaunts. During the period beginning from 15th Mithunam 1119 to 7th Karkitakam 1122 and as evidenced by the relevant day-books and ledgers kept by the Plaintiff, the defendant was having a ]ap hchv dealings in arecanut with the Plaintiff at Korancheri. According to the agreement between the parties and the practice of the trade, interest on outstandings at 9% is to be charged in respect of the transaction. After giving credit to the amounts paid by the defendant, the defendant owes in respect of the Korancheri transaction a sum of Rs. 3, 600/- inclusive of interest as on the date of suit. 4. Similarly, in respect of the dealings that the defendant had with the Plaintiff at Kokkala, Trichur, during 7th Chingom 1120 to 4th Kumbhom 1124 the defendant owed to the Plaintiff as on the date of the suit, inclusive of interest, a sum of Rs. 1, 900/-. According to the agreement and the practice obtaining at Kokkala, interest can be charged on outstandings after 7 days when they became due at 12% . The amounts due to the Plaintiff have not been paid in spite of demands and the defendant was only putting it off promising to come and settle and pay. In particular, on 12th February 1949, the defendant has written a letter promising to pay the debt claimed by the Plaintiff. According to the Plaintiff, even if the debt is barred by limitation, this letter of 12th February 1949 is a promise to pay the barred debt and is a fresh contract accepted by both parties. On this basis, the Plaintiff claimed the amounts with future interest. 5. The defendant, in his written-statement, contested the claim made against him by the Plaintiff. On this basis, the Plaintiff claimed the amounts with future interest. 5. The defendant, in his written-statement, contested the claim made against him by the Plaintiff. He alleged that he was having coffee and sandal wood business in Nilgiris and that he never had at any time any business in arecanut. But the defendant's brother one Mohammed Ali Sahib was having separately a business in arecanuts at Tirupur till about 1945 and the said business failed due to his financial difficulties. After 1945, even his brother had no business and there was no dealings with the Plaintiff as shown by his pattis. 6. The defendant further contended that he had nothing to do with the arecanut business that his brother had with the plaintiff. If any accounts are kept by the Plaintiff in the name of the defendant, it has been so done by the Plaintiff without either the consent or knowledge of the defendant. The defendant has never purchased any arecanuts from the Plaintiff, according to the pattis; nor has he paid any amount towards them. The defendant does not even know the Plaintiff. He knows the Plaintiff only according to the letter mentioned in the plaint and this litigation. He also disputed the right of the Plaintiff to claim any interest and also stated that the practice and agreement for payment of interest mentioned in Para.1 and 2 of the plaint are not true. There is no such practice either at Korancheri or Kokkala. 7. The defendant also contended that the even if the claim is true, it is barred by the law of limitation. Regarding the letter dated 12th February 1949, written by the defendant (Ex-C), the defendant specifically pleaded that the said letter was written by him only on the ground that if his brother owes any amounts to the plaintiff according to the proper accounts, he can ask his brother to settle up the claim. The defendant has not accepted the said letter that he himself had any dealings with the Plaintiff. The said letter is not enough to take the claim out of the bar of limitation. His brother has not agreed to pay interest either at 9% or at 12% as claimed in the plaint. On all these grounds, the defendant prayed for dismissing the suit filed by the plaintiff. 8. The Plaintiff relied upon his account-books, Exts. The said letter is not enough to take the claim out of the bar of limitation. His brother has not agreed to pay interest either at 9% or at 12% as claimed in the plaint. On all these grounds, the defendant prayed for dismissing the suit filed by the plaintiff. 8. The Plaintiff relied upon his account-books, Exts. D, D1, E, E1, F, F1, F2, G, G1, H, H1 and J, J1 to substantiate his case that he was having dealings with the defendant at Korancheri and Kokkala. The plaintiff also gave evidence as PW.1 to substantiate his claim. He relied upon the letters, Exts-A, B and C to show that there was a demand made by the Plaintiff for payment of the amount and a promise having been made by the defendant to pay the same. In particular, the plaintiff very strongly relied upon the letter dated 12-2-49 written by the defendant, Ex-C as constituting a promise to pay a barred debt and as such, he relied upon the provisions of sub-secion 3 of S.25 of the Indian Contract Act. 9. The defendant on the other hand, admitted the letters put against him and he also gave evidence in support of the case set up by him that he did not have any dealings whatsoever with the plaintiff and that it was only his brother who had any dealings with the plaintiff. As the letters, Exts-A, B and C are in Tamil, DW. 2 was examined by the defendant only to support the interpretation that he wanted to place on the letter, Ext-C. 10. The learned Additional District Judge, after a consideration of all the materials placed before him, came to the conclusion that the case of the defendant that be had no arecanut business at all at any time, is false. In this connection, the learned judge considered Exts. K, L and M, proceedings connected with O. S.5/47 District Munsiffs Court, Trichur. In these proceedings, the defendant had admitted about his trading in arecanut and he had allowed a decree to be passed. In view of this documentary evidence, the learned judge held that he cannot believe the defendant when he swears that he had no dealings at all in arecanuts. 11. In these proceedings, the defendant had admitted about his trading in arecanut and he had allowed a decree to be passed. In view of this documentary evidence, the learned judge held that he cannot believe the defendant when he swears that he had no dealings at all in arecanuts. 11. On the question as to whether the plaintiff had dealings with the defendant, the learned judge accepted the accounts filed by the plaintiff and also accepted the oral evidence adduced by the plaintiff as P.W. 1. The learned judge also found support in the letters, Ext-A, B, C and N. After a consideration of the account-books, the letters and the evidence of PW.1, the learned judge held that the defendant was having dealings with the plaintiff and the accounts relied upon by the plaintiff related to the transactions that the plaintiff had with the defendant. The learned judge rejected again as false the case set up by the defendant that he had no dealings whatsoever with the plaintiff. 12. The learned judge held that the suit based on accounts, must be held prima facie to be barred by limitation. But the learned judge further held that the recitals in Ext-C the letter dated 12-2-49, and admittedly written by the defendant, amounted to a promise by the defendant to pay the debt due to the plaintiff and therefore, the said letter will amount to a promise to pay a barred debt and as such, the plaintiff is entitled to sue on the same under sub-S. 3 of S.25 of the Contract Act. In this view, the learned judge held that the plaintiff is entitled to a decree for the amount claimed by him together with interest. The learned judge also held that the rate of interest claimed by the plaintiff in respect of the two transactions at Korancheri and Kokkala has to be allowed. 13. The main controversy in this appeal has centred on the question as to whether the letter, Ext. C amounts to a promise by the defendant to pay a barred debt under sub-s. 3 of S.25 of the Contract Act. 14. Mr. 13. The main controversy in this appeal has centred on the question as to whether the letter, Ext. C amounts to a promise by the defendant to pay a barred debt under sub-s. 3 of S.25 of the Contract Act. 14. Mr. Mohammed Naha, learned counsel for the appellant, has also raised two other contentions namely: (1) that the finding of the learned judge about the liability of the defendant to the plaintiff is not correct; and (2) in any event, the plaintiff is not entitled to claim interest in respect of the two transactions at Korancheri and Kokkala. 15. Before we deal with the question of law regarding the effect of the letter, Ext-C, we will deal with the contentions of Mr. Mohammed Naha on the findings of fact set out above. x x x x X X X X 16. The agreement set up by the plaintiff cannot be held to be proved in this case. Equally, the plaintiff has not also proved the custom obtaining in the two places regarding the liability to pay interest. We agree with Mr. Mohammed Naha that the plaintiff is not entitled to claim interest at 9% regarding the Korancheri transaction or at 12% regarding the Kokkala transaction from 24-1-49. The defendant will be liable to pay on the sum of Rs. 2,519-5-7 interest at 6% from 24-1-49 if he is otherwise found liable to the plaintiff in this suit. 17. Then we come to the question as to whether the letter, Ext. C amounts to a promise to pay a barred debt and as such, whether the plaintiff is entitled to have the benefit of sub-section 3 of S.25 of the Contract Act. 18. According to Mr. Mohammed Naha, Ext. C the letter relied upon, does not contain an express promise nor does it contain a promise to pay an ascertained sum. 19. The letter Ext-C is in Tamil and parties seem to have had recourse to translation of the document in Malayalam and also to have oral evidence as to what the expressions mean. 20. Such difficulties do not arise in this court before us, because one of us (myself) is familiar with the language in which the document is written. 21. The letter Ext-C is in Tamil and parties seem to have had recourse to translation of the document in Malayalam and also to have oral evidence as to what the expressions mean. 20. Such difficulties do not arise in this court before us, because one of us (myself) is familiar with the language in which the document is written. 21. On 24-1-49, the defendant sends a post-card to the plaintiff, Ext-A. After paying his best wishes to the plaintiff, he refers to the three messengers of the plaintiff as having come and seen him. The defendant expresses his gratitude to the plaintiff for that. He also expresses his gratitude that the plaintiff has shown a lot of consideration to the defendant in this matter. He again expresses that the plaintiff has to be honoured for that attitude. He promises to act as stated in person and also undertakes to settle the claim of the plaintiff and make it alright. He winds up the letter by saying that all these have also been mentioned to the messengers who came to him on behalf of the plaintiff. 22. The card. Ext. A which was intended to be posted, appears to have been sent by the defendant through the messengers of the plaintiff. On 24-1-1949, the plaintiff writes a letter, Ext. B to the defendant acknowledging the letter, Ext. A, He refers to the information conveyed to him by his messengers. The plaintiff expresses his joy to the defendant. Finally, he expresses the hope that the defendant will come and pay up the balance amounts due to him within a very short time. He requests the defendant to send a reply at his earliest convenience. 23. The defendant sends to the plaintiff on 12-2-1949 the post-card, Ex-C. It is written to Cheru. B. A., of Kokkala Mandi. The defendant offers salutations and enquires about the welfare of the plaintiff. Then he acknowledges the plaintiff's letter dated 24-1-1949 namely, Ext. B. Then the defendant agrees, as mentioned to the plaintiff's messengers, to go over to the plaintiff as soon as possible and says in Tamil IWiv apSn p sImAemw Then he states that the work in connection with sandalwood is going on busily. He winds up by saying that the whole matter will be made alright very soon. B. Then the defendant agrees, as mentioned to the plaintiff's messengers, to go over to the plaintiff as soon as possible and says in Tamil IWiv apSn p sImAemw Then he states that the work in connection with sandalwood is going on busily. He winds up by saying that the whole matter will be made alright very soon. On 30-4-1949, the defendant sends a letter to the plaintiff enquiring as to the date of the last transaction between the plaintiff and the defendant. According to Mr. Naha, the expression IWiv apSn_p sImAemw does not amount to a promise, much less an express promise. At the most, the expression will mean that the defendant will look into the accounts and find out whether there is anything to be paid by the defendant and that if any amounts are found due on such taking of accounts, they will be paid according to convenience. The learned counsel also contends that there is no promise to pay unascertained sum.. 24. The learned counsel invited our attention to the decision of the Madras High Court reported. in Doraisami Padayachi v. Vaithilinga Padayachi (I.L.R. 40 Mad. 31). In that case, a Full Bench of the Madras High Court had to consider the question about the meaning of the word 'debt' in S.25(3) of the Indian Contract Act. In that case, the letter contained the expression'I shall pay the amount due as per account'. The learned judges had to consider whether the words will amount to a promise to pay a debt under S.25(3) of the Contract Act. But it will be seen that the letter also contained that two persons mentioned therein will be brought to settle the accounts relating to a trade. In the reference to the Full Bench, the referring judges had specifically stated that the word 'amount' in the clause 'I shall pay the amount due as per account' refers to the amount which may be found due by the arbitrator. 25. The learned judges of the Full Bench proceeded on the basis that the amount has to be found due by the arbitrator and it is that amount that was promised to be paid. In this view, the learned judges held that it will not amount to a promise to pay a'debt' within the meaning of S.25 of the Indian Contract Act. In this view, the learned judges held that it will not amount to a promise to pay a'debt' within the meaning of S.25 of the Indian Contract Act. The learned judges further observed: "We think that the word 'debt' used in this context must be taken to have been used in its ordinary meaning of a sum payable in respect of a money demand recoverable by action." The learned judges answered the reference in the negative. We do not find any support in this decision for the position taken by Mr. Naha. The debt was not identified in that case and unless the arbitrator goes into the matter and fixes the amount, there was nothing that could be said as due to the plaintiff in that case. 26. The expressions used in Ext-C are quite different from those in the Full Bench decision referred to above. 27. The learned counsel invited our attention to a decision of the Bombay High Court in Watson v. Yates (I.L.R.11 Bombay 580). In the Bombay case, the letter contained the words 'I bear the matter in mind, and will do my utmost to repay this money as soon as I possibly can'. The learned judges held that the promise made by the defendant in that letter was only conditional and that the plaintiff has not proved that the defendant is able to pay. In other words, it was held to be a promise to pay when the defendant is able and that it was for the plaintiff therein to show that the defendant was able to pay & that the plaintiff has failed to prove the fact, The learned judges finally, conclude: "The conditions, therefore, under which the promise was intended to operate, do not exist, and the defendant cannot be held bound." It will be seen that the learned judges held that there was a promise and a promise to pay a debt, but the plaintiff therein was non-suited, on the ground that the plaintiff has not satisfied the court about the ability of the defendant to pay. This decision again will not help the appellant. 28. Another decision relied upon by the appellant is a decision of the Calcutta High Court reported in Sriram Arjundas v. Governor-General-in-Council (A.I.R.1952 Cal. 443). This decision again will not help the appellant. 28. Another decision relied upon by the appellant is a decision of the Calcutta High Court reported in Sriram Arjundas v. Governor-General-in-Council (A.I.R.1952 Cal. 443). The letter relied upon in that case was a letter written by the Chief Commercial Manager to the party stating that a Pay Order in his favour on the Chief Accounts Officer, East Indian Railway in full settlement of his claim, has been sent and advising him to call on that officer and receive the amount. The learned judge held that there was no promise contained in this letter. This case again does not support the appellant. 29. The last decision relied upon by Mr. Mohammed Naha is a decision of the Patna High Court reported in Sheobachan v. Madho Saran (A.I.R.1952 Pat. 73.) The document that had to be construed by the learned judges contained the following words: "At the time we redeem Rehan, we shall pay on adjustment of accounts, the damages for the number of days on and the area of land; from which the Rehandars have already been out of possession. The learned judges held: "The recital in the Ekrarama shows that the mortgagees promised to pay an amount which may be found due on taking accounts, that is, an unascertained sum, but in my view, a promise to pay an unascertained sum is not a promise to pay a'debt' within the meaning of S.25(3) of the Indian Contract Act. This is also the view of a Full Bench of the Madras High Court in Doraisami Padayachi v. Vaithialinga Padayachi (I.L.R. 40 Mad. 31)", The decision again does not assist the appellant. The document in the case before the learned judges contemplated an adjustment of the accounts, an enquiry into the damages for the days and the area of the land and other particulars. 30. Mr. A. S. Krishna Ayyar contended that there is an unconditional promise by the defendant to pay the amounts due to the plaintiff. In this connection, the letters evidenced by Exts-A, B and C have all to be read together. The letter Ext. A written by the defendant shows that he knows his liability to the plaintiff and under what head. In the letter, Ext. B the plaintiff makes a specific demand on the defendant to pay the balance amounts due to him. In this connection, the letters evidenced by Exts-A, B and C have all to be read together. The letter Ext. A written by the defendant shows that he knows his liability to the plaintiff and under what head. In the letter, Ext. B the plaintiff makes a specific demand on the defendant to pay the balance amounts due to him. These balance amounts have been already brought to the notice of the defendant by the plaintiff's messengers who admittedly, even according to the defendant's own case met the defendant. Therefore, the defendant on the date when he wrote Ext. C, is in full possession of all the particulars of claim as against him. It is under these circumstances he makes the definite promise to pay the amounts due to the plaintiff. There is no question of any account having to be looked into, nor is there any controversy between the parties on this matter at the time when the letter, Ext. C was written. Ext. C contains a promise to pay the amount due to the plaintiff and that amount can be very easily found out. There is no dispute about the identity of the amount due by the defendant on the date of Ext. C. 31. The learned counsel distinguished the several decisions relied upon by Mr. Mohammed Naha as not being applicable to the wording of the letter before us which is entirely different. The expression "We='O oOaM-3/40 RWLq-sLU" has to be read in the context of the relationship of the parties and it means only that the defendant has unconditionally promised to pay the amounts due to the plaintiff under the arecanut transaction and which amounts are also known to the defendant. Reliance has been placed on a Division Bench decision of the Madras High Court reported in Appa Rao v. Suryaprakasa Rao (I.L.R. 23 Mad. 94). In that case, the plaintiff relied on a letter written by the defendant as follows: "In your letter dated 24th Marth 1898 you said that the kttubadi from Fasli 1300 to Fasli 1307 was in arrears, and that the same should be sent through your peon. There are no collections now. I shall send by the end of the Vysakha month. Please to consider". There are no collections now. I shall send by the end of the Vysakha month. Please to consider". The trial court held that this letter did not amount to a promise to pay a debt, as in his view, the letter did not name the amount. The learned judges differed from the view of the trial court and held that, in their opinion, the said document is sufficient to come within the ambit of Clause.3 of S.25. The learned judges observed at page 98 as follow: "For this purpose we think the document is sufficient when it is in writing and signed by the person to be charged; when it refers to the debt - not necessarily to the fact that the debt is no longer recoverable owing to the law of limitation, - but in such a way as to identify the debt; when it contains a promise to pay wholly or in part the debt referred to therein - that is, when it expresses an intention to pay which can be construed to be a'promise' within the meaning of the section". Further, the learned judges observed at page 98 as follows: "The section does not require that the document should contain a promise to pay a sum of money in consideration of a debt which is barred nor that it should show that the promisor knew that it was barred - for the words used in the section show that it is the debt and not a sum of money in consideration of the barred debt that the promisor should refer to and there is nothing whatever in the section to indicate that the promisor should do more than promise to pay a debt of which the creditor might have enforced payment but for the law of limitation of suits. The words are not "promise to pay a sum of money in consideration of a debt" nor does the section refer to the knowledge of the promisor. Every man is supposed to know the law and in this case the promisor has mentioned the years for which the rent was in arrear and must be supposed to have known the law of limitation so that even if that were a necessity in this case the promisor must be taken to have known that the debt referred to was barred to some extent at all events." 32. In Ganapathi Moodolly v. Muniswami Moodelly (I.L.R. 23 Mad. 159) a Division Bench of the Madras High Court observed, regarding the scope of S.25(3) of the Contract Act, at page 161 as follows: "The section indicates what must be deemed to take the place of 'consideration' in an ordinary contract. Full effect is given to the words of the section by taking it to mean that when a man promises to pay what in fact is proved to be a debt which is barred, that agreement will be enforced. This is consistent with the decision that held that consideration may be proved when not recited in the document or a different consideration may be proved from that recited therein. To hold otherwise would be to confine the parties to the recitals in the instrument in cases that are governed by S.25. We see no warrant in that section for doing so". 33. In David Sutherland Clerk v. Rose Grimshow (A.I.R.1923 Lahore 481) a Division Bench of the Lahore High Court quoted with approval the decision of the Madras High Court in Appa Rao v. Suryaprakasa Rao (I.L.R. 23 Mad. 94). The learned judges had to construe a letter which was as follows: "Sir,-Your letter dated 5th February received with copy of promissory-note. I accept it to be a true copy and hope to pay the money very soon." The learned judges construed the said letter as a promise to pay a debt coming within S.25 (3) of the Indian Contract Act. The learned judges also held that the decision of the Madras High Court in Appa Rao v. Suryaprakasa Rao (I. L. R.23 Mad. 94) is a complete answer to the case of the plaintiff in that case. 34. Applying the principles laid down in the decisions relied upon by Mr. A.S. Krishna Ayyar, we are of the opinion, that the letter, Ext. C contains an unconditional promise to pay the amounts due to the plaintiff in respect of the business transactions that took place between the plaintiff and the defendant and, therefore, the plaintiff is entitled to rely upon the said letter as a promise to pay a barred debt under S.25(3) of the Indian Contract Act. 35. But we have already held that the plaintiff will be entitled to claim only a sum of Rs. 2,519-5-7 from the defendant with 6% interest thereon from 24-1-1949. 36. 35. But we have already held that the plaintiff will be entitled to claim only a sum of Rs. 2,519-5-7 from the defendant with 6% interest thereon from 24-1-1949. 36. Therefore, the decree and judgment of the learned judge are modified to the extent indicated above. Parties will pay and receive proportionate costs here and in the court below. Decree modified.