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2003 DIGILAW 209 (GAU)

Khagendra Nath Das v. Union Bank of India

2003-05-14

P.G.AGARWAL

body2003
JUDGMENT P. G. Agarwal, J. 1. Heard Mr. MA Sheikh, learned counsel for the appellant. This second appeal was admitted for hearing on earlier by this Court on 1.6.2001 with the following 2 (two) substantial questions of law : (1) Whether the document Ext. 8 amounts to an acknowledgement in writing so as to attract the provisions of Section 18 of the Limitation Act, 1963 as has been held by the Lower Appellate Court ? (2) Whether the provisions of Article 67 and Limitation Act are attracted to the instant case so as to enable the Courts below to hold that the plaintiff's suit was within limitation ? 2. The respondent-plaintiff, Union Bank of India instituted money Suit No. 11 of 1985 before the Assistant District Judge, Barpeta stating, inter alia, that a lone of Rs. 28,910 was given to the defendant Nos. 1, 2 and 3 on 8.1.1979 on execution of necessary documents for purchasing of power tiller. The defendants paid a sum of Rs. 2,000 and thereafter, defaulted in making payment. They, however, executed another promissory note on 7.1.1982, whereupon the pleader's notice was issued to them vide Ext. 7 and defendants acknowledged the liability vide Ext. 8 on 4.6.1982. 3. The suit was dismissed by the learned trial Court on the ground of limitation, whereupon the plaintiff preferred Money Appeal No. 7 of 1994 before the District Judge, Barpeta, who vide impugned order dated 19th of November, 1996 set aside the order of dismissal and decreed the suit for a sum of Rs. 48,247.66p with interest @ 12.5% per annum from the date of the suit to be payable to the plaintiff. Hence, this second appeal. 4. The basic facts of the case are not in dispute. The loan was allegedly taken on 8.1.1979 arid a sum of Rs. 2,000 was paid against the said loan on 30th of October, 1979. Ext. 2 is the subsequent promissory note issued by the defendant Nos. 1, 2 and 3 on 7.1.1982. The question that arises for consideration is whether Ext. 8 amounts to acknowledgement under Section 18 of the Limitation Act. The authorship of Ext. 8 is not in dispute and it was sent by the defendants in reply to the notice Ext. 7, received. The contents of Ext. 1, 2 and 3 on 7.1.1982. The question that arises for consideration is whether Ext. 8 amounts to acknowledgement under Section 18 of the Limitation Act. The authorship of Ext. 8 is not in dispute and it was sent by the defendants in reply to the notice Ext. 7, received. The contents of Ext. 8 is reproduced below : “To The Branch Manger Union Bank of India, Barpeta Road, From : Khagendra Nath Das 2 others, Vill – Dhupguri, P.O. Barpeta Road, Dates the 4th of June, 1982. Subjects : Power Tiller Loan availed from your Bank. Dear Sir, With reference to the above subject, we would like to state the following few lines for your kind consideration and necessary action. That Sir, we have availed the loan on 8.1.1979. Total cost of the power foller was Rs. 37,360 and we got Rs. 9000 as subsidy from SFDA, Gauhati. That Sir, after taking the delivery of the power tiller, we found it to be very defective. But the supplier of the same was quite reluctant in repairing and supplying the spare parts. That Sir, we are poor farmers with little mechanical knowledge so we could not utilise the same profitably though on several occasions we spent handsome amount in repairing the same. That Sir, power tiller is now lying in idle condition for mechanical defects and non-availability of spare parts. That Sir, now we promise to pay Rs. 1500 this month and the rest amount in monthly instalment of Rs. 250 with effect from July, 1982 onwards till the liquidation of the loan. Under the above circumstances we request you to waive the entire interest applied in the account and not to charge interest thereon. Thanking you, 5. The learned counsel for the appellant has submitted that the loan was taken on 8.1.1979 and Ext. 8 was sent on 4th of June, 1982. Thus, it was beyond the period of limitation and not against the existing and subsisting liabilities. It is seen from the evidence on record, that a sum of Rs. 2,000 was paid by the defendant against the said loan on 30th of October, 1979. Considering the provision of Section 19 of the Limitation Act, the period of limitation will be till 30th of October, 1983 and Ext. 8 was executed before that. 6. It is seen from the evidence on record, that a sum of Rs. 2,000 was paid by the defendant against the said loan on 30th of October, 1979. Considering the provision of Section 19 of the Limitation Act, the period of limitation will be till 30th of October, 1983 and Ext. 8 was executed before that. 6. The law regarding acknowledgement was settled by the Apex Court in the case of Lakshmiratan Cotton Mills Co. Ltd. v. The Aluminium Corporation of India Ltd., reported in , the Apex Court observed as follows : "It is clear that the statement on which the plea of acknowledgement is founded must relate to a subsisting liability as the section requires that it must be made before the expiration of the period prescribed under the Act. It need not however, amount to a promise to pay, for an acknowledgement does not create a new right of action but merely extends the period of limitation. The statement need not indicate the exact nature or the specific character of the liability. The word used in the statement in question, however, must relate to a period subsisting liability and indicate the existence of jural relationship between the parties, such as, for instance, that of a debtor and a creditor, and the intention to admit such jural relationship. Such an intention need not be in express terms and can be inferred by implication from the nature of the admission and the surrounding circumstances. Generally speaking, a liberal construction of the statement in question should be given. That of course does not mean that where a statement is made without intending to admit the existence of jural relationship, such intention should be fastened on the person making the statement by an involved and farfetched reasoning." 7. On perusal of Ext. 8 as quoted above, we find that the respondent-defendant had not only admitted the liability and the jural relationship, they also promised to make payment of Rs. 1500 during the month itself and thereafter, a monthly instalment from July, 1982 onwards till liquidation of loan. 8. We, therefore, hold that the Appellate Court had properly appreciated and interpreted Ext. 8 acknowledgement under Section 18 of the Act and the suit was not barred by the limitation. 9. The other substantial questions of law formulated had not been pressed. 8. We, therefore, hold that the Appellate Court had properly appreciated and interpreted Ext. 8 acknowledgement under Section 18 of the Act and the suit was not barred by the limitation. 9. The other substantial questions of law formulated had not been pressed. In this case, we find that the suit was filed on 4.6.1985 and as Ext. 8 was executed on 4.6.1982, the suit was within the limitation and hence, the finding of the Appellate Court that the suit was not barred by the limitation is in accordance with the law. In the result, the second appeal is dismissed with costs. Appeal dismissed