Research › Browse › Judgment

Orissa High Court · body

1958 DIGILAW 97 (ORI)

JONA RAMANNA v. JANNITA TATAYYA

1958-09-08

RAO

body1958
JUDGMENT : Rao, J. - Defendants 1 and 2 filed this second appeal against the reversing judgment of Shri L. Panda, Additional District Judge, Berhampur decreeing the Plaintiff's suit for a sum of Rs. 700/. with corresponding costs and pleader's fee. 2. Defendants 1 and 2 executed a promissory note for Rs. 900/. in favour of Defendant No. 3 On 26-4-1949 agreeing to pay the same on demand by the promisee or his order with interest at the rate of 9 per cent per annum. The said promissory note was transferred for consideration in favour of the Plaintiff by an endorsement on the same dated 26-8-1950. The Plaintiff filed the suit to realise a sum of Rs. 1249/. on 19-8-1953 praying to recover the said sum of Rs. 1249/- with subsequent interest and costs. 3. Defendants 1 and 2 contended that there was a tobacco business between themselves and Defendant No. 3 who had persuaded them in the year 1947 to execute a promissory note for Rs. 1300/- in favour of one D. Ramamurty and these Defendants after having executed such a promissory note paid Rs. 500/. in two instalments and Defendant No. 3 obtained a fresh promissory note by misrepresenting things to these two Defendants for Rs. 900/. and Rs. 200/- were paid towards the business dues. They also contended that there was no cash consideration for the promissory note in suit and that the transfer in favour of the Plaintiff was invalid and it was also stated that the suit was barred by time. 4. The learned Munsif who tried the case dismissed the suit holding that the suit promissory note was not for consideration j that the alleged acknowledgment of liability did not save time; and that the suit was barred by time as it was filed beyond three years from the date of execution of the promissory note. The learned Additional District Judge, in appeal, came to the conclusion that the promissory note was supported by consideration and the suit was in time. 5. Mr. Ramdas, the learned Counsel for the Appellants contended that the lower appellate court erred in coming to a conclusion that the promissory note was supported by consideration and that Ext. 4 amounted to an acknowledgment of liability. 6. The suit promissory note Ext. 1 is in the handwriting of one of the Defendants. 5. Mr. Ramdas, the learned Counsel for the Appellants contended that the lower appellate court erred in coming to a conclusion that the promissory note was supported by consideration and that Ext. 4 amounted to an acknowledgment of liability. 6. The suit promissory note Ext. 1 is in the handwriting of one of the Defendants. It clearly recites that it Was executed for a consideration of Rs. 900/-. According to the written statement and written reply given by Defendants 1 and 2 to the third Defendant when the amount due on the suit promissory note was demanded as also the evidence, it is clear that Defendants 1 and 2 admit the execution of Ext. 1. The statements made in Ext. 4 are at variance with those in the written statement. There is a development in the written statement and the entire case of the Defendants as put forward in Ext. 4, in the written statement and in the evidence appears to me to be nothing but some confusion. Ext. 4 clearly recites that they executed a promissory note in favour of the third Defendant for Rs. 900/, but they say that he was a benamidar. They also admit that Rs. 700/. Were payable in yearly instalments. They also admit that Rs. 200/- were paid towards the liability of the promissory note. The only point which Can be made out from Ext. 4 is that the Defendants refused to pay that amount to the Plaintiff stating that he was only a benamidar. On these facts, in my opinion, the learned Additional District Judge came to the right conclusion that the suit promissory note was supported by consideration and that Ext. 4 amounted to an acknowledgment of liability- Mr. Ramdas cited before me a decision in the case of Ishar Singh and Ors. v. Sadhu Singh and Anr. AIR 1936 Lah 569 . and contended that Ext. 4 could not be held to be an acknowledgment o( liability. This case was noticed also by the learned Additional District Judge and it was held in this case? There is a distinction between addressing the acknowledgment of liability and acknowledging liability to a person. v. Sadhu Singh and Anr. AIR 1936 Lah 569 . and contended that Ext. 4 could not be held to be an acknowledgment o( liability. This case was noticed also by the learned Additional District Judge and it was held in this case? There is a distinction between addressing the acknowledgment of liability and acknowledging liability to a person. In order to bring his case within limitation the person who attempts to enforce his right most show that the acknowledgment of liability was in his favour though it need not have been addressed to him, as acknowledgment of liability to the person who is claiming relief may be addressed to another person; so when an acknowledgment of liability is made in favour of only one of the obliges having equal shares, the others are not entitled to the benefit of Section 19. The facts of this case are quite different and the principle laid down does not apply to the case before me. Section 19 of the limitation Act clearly says that the acknowledgment of liability most be in respect of property or of right and it most be made in writing signed by the party against whom such property or right is claimed, and under Explanation I to that section it is sufficient acknowledgment of liability though it avers that the time for payment, delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to a set-off, or is addressed to a person other than the person entitled to the property or right. From Ext. 4 it is clear that the liability under the promissory note to whomsoever it is addressed is clearly acknowledged. 7. In my opinion, therefore, there is no merit in this appeal and it is dismissed with costs. 8. The Plaintiff-Respondent filed a memorandum of cross-objection claiming -interest on the amount of Rs. 700/- decreed, from the date of the suit promissory note at least to the date of the filing of the suit. The learned Additional District Judge in construing the question of acknowledgment of liability argued before him and discussing the question came to the conclusion that there was an acknowledgment of liability in Ext. 4 only with regard to Rs. 700/- and not with regard to Rs. 900/. The learned Additional District Judge in construing the question of acknowledgment of liability argued before him and discussing the question came to the conclusion that there was an acknowledgment of liability in Ext. 4 only with regard to Rs. 700/- and not with regard to Rs. 900/. as Defendants 1 and 2 stated in Ext. 4 that Rs. 200/- were already paid and only Rs. 7001- were due. So on this basis learned Additional District Judge came to the conclusion that as the acknowledgment of liability was only to the extent of Rs. 700/-, he granted a decree for Rs. 700/-. Mr. Panda contends that the learned Additional District Judge is wrong in granting a decree only for Rs. 700/-. The discussion with regard to the acknowledgment of liability was with regard to the principal amount of the promissory note. The promissory note is for Rs. 900/-. Defendants 1 and 2 pleaded that they paid Rs. 200/-. Therefore the balance would be Rs. 700/- and if Rs. 700/- is the balance, that must be the balance of the principal amount. The promissory note stipulates for payment of interests for payment of interest at 9 per cent per annum. The learned Additional District Judge ought to have held that the Plaintiff is entitled to a decree for Rs. 700/- with interest on the same from the date of execution of the promissory note to the date of filing of the suit. In my opinion, therefore, the Plaintiff is entitled to interest also on the sum of Rs. 700/ from the date of the promissory note to the date of filling of the suit. The memorandum of cross-objection is allowed to that extent with costs. Appeal dismissed-cross objection allowed. Final Result : Dismissed