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1988 DIGILAW 159 (ALL)

Hari Ram v. Bhevraj Banshidhar

1988-02-11

S.K.DHAON

body1988
JUDGMENT S.K. Dhaon, J. - This is a defendants' appeal. It is directed against the judgment and decree of the lower appellate court, whereby it set aside the decree of the trial court and decreed the suit instituted by the plaintiff respondent No. 1. 2. The plaint allegations, in brief, were these, M/s. Bhevraj Banshidhar the plaintiff, was a registered partnership firm. It carried on the business of selling cloth. It used to charge interest as the rate of Rs. 1 per cent per mensem on the debts due on the sale of cloth. Gulab Chand predecessor in interest of the defendant, also carried on cloth business. Gulab Chand purchased cloth from the plaintiff's firm on credit and paid usual interest. The plaintiff maintained his account in Mahajani form. The accounts were settled by Gulab Chand on 20th October, 1971 and on that date he (Gulab) acknowledged Rs. 4773.79 P. in favour of the plaintiff and promised to pay an interest at the rate of Rs. 1 per cent per mensem. Gulab Chand died in April, 1982 without any issue. The defendants representing to be the legal heirs of Gulab Chand were in possession of the assets of Gulab Chand, The plaintiff prayed that a decree of Rs. 5865. 16 P. May be passed in its favour. 3. The defence case was this Gulab Chand did not purchase any cloth from the plaintiff's firm. Gulab Chand did not sign any acknowledgement of debt as alleged by the plaintiff. There was no custom of payment of interest in the mercantile community at Siswa as alleged by the plaintiff. 4. The trial court recorded a finding that Gulab Chand purchased goods for Rs. 11389. 73 p. on credit from the plaintiff firm. Gulab Chand agreed to pay interest at the rate of Rs. 1 per cent per mensem. Gulab Chand did not acknowledge his liability to pay the debt. The suit was barred by limitation. 5. The plaintiff preferred an appeal. It is to be remembered that the defendant did not prefer any appeal against the findings recorded against them even though a decree had been passed by the trial court after enforcement of the amendment of Civil Procedure Code, 1976. Therefore, the sole question to be determined by the lower appellate court was as to whether the suit instituted by the plaintiff was filed within time. Therefore, the sole question to be determined by the lower appellate court was as to whether the suit instituted by the plaintiff was filed within time. For deciding this controversy, the lower appellate court has to necessarily advert itself to the alleged acknowledgement of liability by Gulab Chand. 6. Paper No. 70-Ka contained the alleged acknowledgement of Gulab Chand. It was on a printed form on which Gulab Chand admittedly affixed his signatures on 20th October, 1971. The averments contained in this document were to the following effect: "Upto Kartik Badi 15 Samvat 2028 ; 18-10-71, a sum of Rs. 4783. 79 p was due from him to the plaintiff Bhevraj Banshidhar and this money is 'Baki Dena Niklata hai'. The acknowledgement was signed by Gulab Chand on 10 NP revenue stamp. He has signed it on behalf of the firm Gulab Chand Gupta. 7. The lower appellate court has accepted the evidence adduced on behalf of the plaintiff to the effect that the document, in fact, had been executed by Gulab Chand on 20th October, 1971. This is also a finding recorded by the trial court. Therefore, it is clear that there is no dispute that on 20th October, 1971 Gulab Chand did execute the document which is contained in paper No. 70-Ka (Ex. 21). 8. The only question which survives in this appeal is as to whether Gulab Chand acknowledged his liability to pay the debt. Having considered the matter with some anxiety, I am of the view that the words 'Baki Dena Niklate hai" clearly imply a promise to pay, Therefore, Gulab Chand not merely acknowledged his liability to pay but also admitted the existence of a jural relationship between himself and the plaintiff. Such an acknowledgement, in my opinion, fully conforms to the provisions of Section 25 of the Contract Act as well as Section 18 of the Limitation Act, 1963. 9. No other point survives for consideration in this appeal. 10. There is no substance in this appeal. It is dismissed with costs.