JUDGMENT : (Prayer: Suit filed under Order IV Rule 1 O.S. Rule Read with Order VII Rule 1 CPC to direct the defendants to pay a sum of Rs.2,26,82,963.78 together with interest at 24% p.a. from the date of plaint till the date of realization and for cost.) This suit has been filed for recovery of a sum of Rs.2,26,82,963.78 together with interest at 24% p.a. from the date of plaint till the date of realization and for cost. 2. It is the case of the plaintiff that the first and second defendants are in-charge of and running the defendants companies 3 to 7. The defendants availed loan from the plaintiff on several occasions from 18.09.2000. Besides they have also extended bank guarantees for various amounts from 01.03.2002 to 30.11.2002. The plaintiff had also made several payments by cash and cheques as on 30.11.2002. The defendants are liable to pay a sum of Rs.92,21,744.02. Hence, the suit. 3. The written statement filed by the sixth defendant is adopted by the other defendants. It is the contention of the defendants that the sixth defendant forms part of Group of companies consisting of the defendant nos. 4 to 7. They had export orders. But, unfortunately, they did not have credit facilities with bankers in Order to execute the export orders in time. In such circumstances, the sixth defendant approached the plaintiff to extend financial help for executing the export orders. It is the contention of the defendants that when the business dealings between the defendants and the plaintiff came to an end, the defendants owed a sum of Rs.38,71,214/- collectively to the plaintiff. Since the defendants are facing business problems and since there was acute financial distress, the defendants on 11.11.2006 adjusted the remaining amount of Rs.38,71,214/- due and payable to the plaintiff by giving an embroidery machine belonging to the third defendant worth about Rs.40 lakhs. The plaintiff accepted the said embroidery machine towards full and final settlement of all its dues in 2006 itself. After accepting the final settlement, the present suit has been filed. Further, it is the contention of the defendant that the suit is barred by limitation. 4. In the reply statement filed, the plaintiff denied the contention of the defendants. 5. Based on the above pleading, the following issues have been framed : 1. Whether the suit is barred by limitation? 2. Further, it is the contention of the defendant that the suit is barred by limitation. 4. In the reply statement filed, the plaintiff denied the contention of the defendants. 5. Based on the above pleading, the following issues have been framed : 1. Whether the suit is barred by limitation? 2. Whether the plaintiff is entitled to a sum of Rs.2,26,82,963.78 payable by the defendants, with interest at 24% per annum? 3. To what relief, the plaintiff is entitled? 6. On the side of the plaintiff, P.W.1 was examined and Ex.P.1 to Ex.P.42 were marked. On side of the defendants, D.W.1 has been examined and Ex.D.1 to Ex.D.4 marked. Witnesses examined on the side of the plaintiff : P.W.1. - Mr. Ganesh Patwari Witnesses examined on the side of the defendants: D.W.1 - Mr. C. Sreenivasalu Exhibits produced on the side of the plaintiffs: S. No. Date Description of documents Exhibit 1. 19.03.2001 Letter from the fourth defendant to Bharath Overseas Bank P-1 2. 22.10.2001 Copy of Fax from 6th defendant for export order No.PO 04447/04368 P-2 3. 07.08.2001 Two purchase order Nos.0447 & 04368 of Liberto, France P-3 4. 23.10.2001 Estimate of expenses for export Order Nos.0447/04368 for Trims Only P-4 5. 30.10.2001 Letter of the fourth defendant to the plaintiff P-5 6. 07.02.2002 Statement of the sixth defendant against the orders received from the plaintiff P-6 7. 15.02.2002 Copy of S.A. Creations quality approval to the defendant P-7 8. 26.02.2002 Copy of fax from the sixth defendant to parties P-8 9. 26.02.2002 Copy of letter to Sagar Overseas dated 26.02.2002 P-9 10. 28.02.2002 Copy of the letter from plaintiff to Kailash Threads P-10 11. 04.03.2002 Fax received from T.G.Guru asking for payment P-11 12. 14.03.2002 Copy of fax from the sixth defendant P-12 13. 18.03.2002 Copy of fax from Ingus P-13 14. 23.03.2002 Fax from the 6th defendant enclosing Commission Agreement P-14 15. 06.05.2002 Copy of fax from the sixth defendant P-15 16. 05.06.2002 Copy of fax from the eleventh defendant P-16 17. 08.06.2002 Copy of fax from T.V.Guru to the plaintiff P-17 18. 10.06.2002 Copy of fax from the fourth defendant P-18 19. 10.06.2002 Copy of fax from fourth defendant with copy of OP No.802468 P-19 20. 11.06.2002 Copy of fax from fourth defendant P-20 21. 18.06.2002 Copy of fax from Mr. F. Fatheem son of the first defendant P-21 22. 08.06.2002 Copy of fax from T.V.Guru to the plaintiff P-17 18. 10.06.2002 Copy of fax from the fourth defendant P-18 19. 10.06.2002 Copy of fax from fourth defendant with copy of OP No.802468 P-19 20. 11.06.2002 Copy of fax from fourth defendant P-20 21. 18.06.2002 Copy of fax from Mr. F. Fatheem son of the first defendant P-21 22. 25.06.2002 Copy of fax from fourth defendant with invoices for Order Nos.802552 & 802471 P-22 23. 03.07.2002 Copy of fax from fourth defendant to plaintiff P-23 24. 06.07.2002 Copy of fax from Ms. Rani, employee of the sixth defendant P-24 25. 09.07.2002 Copy of fax from the fourth defendant with a copy of PO No.200 P-25 26. 10.07.2002 Copy of fax from the fourth defendant P-26 27. 23.07.2002 Copy of fax from the fourth defendant P-27 28. -- Copy of fax from the fourth defendant regarding production status for 29.08.2002 & 28.08.2002 P-28 29. 07.09.2004 Copy of letter of the plaintiff to the fourth defendant P-29 30. 14.10.2004 Copy of letter from the plaintiff to the fourth defendant P-30 31. 30.01.2006 Copy of letter from the third defendant to the plaintiff P-31 32. -- Statement of accounts P-32 33. 30.01.2006 Original acknowledgment given by the third defendant P-33 34. 17.05.2001 Letter issued by the fifth defendant to the plaintiff P-34 35. 18.08.2002 Letter addressed by the seventh defendant to the plaintiff P-35 36. 17.05.2001 Letter sent by the fifth defendant to the plaintiff P-36 37. 12.12.2001 Letter sent by the plaintiff to the Indian Overseas Bank P-37 38. -- Letter sent by the 6th defendant to the Indian Overseas Bank P-38 39. -- Letter sent by the fourth defendant to the Indian Overseas Bank P-39 40. -- Letter sent by the fifth defendant to the Indian Overseas Bank P-40 41. -- Letter sent by the fourth defendant to the Indian Overseas Bank P-41 42. -- Statement of accounts P-42 Exhibits produced on the side of the defendants: S. No. Date Description of documents 1. 23.09.2004 Letter sent by the plaintiff to the fourth defendant 2. 01.04.2003 Copy of Partnership Deed between first defendant and Abdul Majid Ahmed 3. 25.11.2011 Copy of Partnership deed dated 25.11.2011 between Abdul Majid Ahmed and the ninth defendant 4. 11.07.2019 Original Authorisation letter given to D.W.1 7. 23.09.2004 Letter sent by the plaintiff to the fourth defendant 2. 01.04.2003 Copy of Partnership Deed between first defendant and Abdul Majid Ahmed 3. 25.11.2011 Copy of Partnership deed dated 25.11.2011 between Abdul Majid Ahmed and the ninth defendant 4. 11.07.2019 Original Authorisation letter given to D.W.1 7. The learned counsel appearing for the plaintiff would submit that the suit has been filed for recovery of huge amount as on 30.11.2002. The defendants are liable to pay more than two crores. However, the suit has been filed after the period of limitation. As per Ex.P.31, defendants agreed to pay a sum of Rs.38,71,214/-. According to him, the defendants have also accepted the outstanding due under Ex.P.31. Such being the position, the time barred debt can be validly recovered. Ex.P31 certainly will fall under section 25(3) of the Indian Contract Act and the same is enforceable. Therefore, the plaintiff is certainly entitled to recover the amount from the defendants. The evidence of D.W.1 clearly indicate that all the defendants are group of companies and they are managed by the first and second defendants. Therefore, the contention of the defendants that they are not liable to pay the amount cannot be countenanced. In support of their contentions, they relied on the following judgments : Sri Kapaleeswarar Temple, Mylapore Vs. T. Tirunavukarasu reported in MANU/TN/0178/1975 Joint Hindu Family of Mukhi Lal Chand Vs. M. Gul Muhammad reported in MANU /LA/1932 8. Whereas the learned counsel appearing for the defendants submitted that the suit itself is barred by limitation. As on 30.11.2002, there are some alleged dues from the the defendants. But the suit has been filed only in the year 2011. Hence, submitted that the suit is barred by limitation. In support of his submissions, he relied on the following judgments Girdhari Lal and another Vs. Firm Bishnu Chand reported in AIR 1932 All 461 S.A. Shanmugam Vs. P.V.S. Balusamy Chettiar reported in 2001-2-L.W.686 K. Jeyaraman Vs. M/s.Sundaram Industries Ltd. through its special Officer reported in 2008-3-L.W.259 Mahanagar Telephone Niga Ltd. Vs. Canara Bank and others reported in 2019 (5) CTC 708 9. Issue No.2 : The suit is filed for recovery of a sum of Rs.2,26,82,963.78. The contention of the plaintiff is that the defendants have received financial assistance from the plaintiff from time to time, particularly from the period from 01.03.2002 to 30.11.2002. Canara Bank and others reported in 2019 (5) CTC 708 9. Issue No.2 : The suit is filed for recovery of a sum of Rs.2,26,82,963.78. The contention of the plaintiff is that the defendants have received financial assistance from the plaintiff from time to time, particularly from the period from 01.03.2002 to 30.11.2002. As on 30.11.2002, the defendants are liable to pay a sum of Rs.92,21,744/-. Whereas, the defendants have not disputed the transaction between them and the plaintiff. In the written statement, it is admitted that on the date of closure of accounts between the defendants and the plaintiff, the defendants are liable to pay a sum of Rs.38,71,214/-. Since they are facing financial problem, the defendants on 11.11.2006 adjusted the remaining amount of Rs. 38,71,214/- by giving an embroidery machine of the third defendant worth about Rs.40 lakhs to the plaintiff. It is their contention that they have adjusted the said sum by providing an embroidery machine worth about Rs.40 lakhs. Though the suit has been filed for recovery of Rs.2,26,82,963.78, the plaintiff during the submissions has restricted their claim only with regard to the admitted liability by the defendants namely Rs.38,71,214/- with interest. In the entire written statement, the transaction between the plaintiff and the defendants is not disputed. 10. The main contention of the defendants is that they are liable to pay only a sum of Rs.38,71,214/-. However, they have adjusted the said sum by providing an embroidery machine worth about Rs.40 lakhs. Whereas, the plaintiff has disputed the machine worth Rs.40 lakhs and has pleaded in the reply statement that the machine was given only on loan basis and the machine was not in working condition. It is found that many critical parts were missing from the machine which required replacement at high costs and this machine being out of production, the required parts were not available and the machine could not repaired. Therefore, the plaintiff requested the defendants to take back the machine from Tirupur factory. When the defendants plead discharge by way of machinery, the burden lies on them to prove that the machine is worth about Rs.40 lakhs. In the absence of any evidence to show that the machine worth about Rs.40 lakhs was actually given by the defendants, the alleged discharge pleaded by the defendants to the tune of Rs.38,71,214/- in lieu of machinery cannot be cannot be countenanced. 11. In the absence of any evidence to show that the machine worth about Rs.40 lakhs was actually given by the defendants, the alleged discharge pleaded by the defendants to the tune of Rs.38,71,214/- in lieu of machinery cannot be cannot be countenanced. 11. On the side of the plaintiff, Ex.P.32 was filed to prove the transaction between the plaintiff and the defendants. Ex.P.32 is a copy of statement of accounts. But the same is not sufficient to prove the liability. Further the statement of accounts Ex.P.32 is not accompanied by a certificate certified by a person who is in charge of the operation of the relevant activities as per Section 65B of the Indian Evidence Act. Therefore, merely on the basis of some transactions and on the basis of Ex.P.32, the suit claim cannot be countenanced. In the absence of any proof with regard to the statement of accounts and any corresponding entries in the ledger and day book, the plaintiff cannot recover the entire suit amount from the defendants, merely on the basis of inadmissible document Ex.P.32. However, the defendants themselves have admitted that they are liable to pay a sum of Rs. 38,71,214/- in the transaction between the defendants and the plaintiff. 12. Further, the contention of the defendants that though the defendants are group of companies, they are different entity cannot be countenanced. All the defendants have filed the written statement jointly. In fact the written statement filed by the sixth defendant has been adopted by all the defendants. The Manager of one of the defendant's company alone came to the box and adduced evidence on behalf of all the defendants. Further, the evidence of D.W.1 indicate that the defendant Nos.4, 5 and 7 are operating in the same address. His evidence clearly indicate that all the defendants are connected to each other and particularly by defendants 1 and 2. Such being the position, contention that they are separate entities and cause of action cannot be confined, has no relevance at all. Admittedly, the written statement has been filed commonly and only one of the staff of the fourth defendant was examined on behalf of all the defendants. 13. Further, when the defendants have admitted their liability to the tune of Rs.38,71,214 /- and took a specific plea of discharge, the burden lies on the defendants to prove the discharge. Admittedly, the written statement has been filed commonly and only one of the staff of the fourth defendant was examined on behalf of all the defendants. 13. Further, when the defendants have admitted their liability to the tune of Rs.38,71,214 /- and took a specific plea of discharge, the burden lies on the defendants to prove the discharge. On a perusal of the entire evidence except stating that the machinery worth about Rs.40 lakhs was given to the plaintiff, no evidence whatsoever is available on record to show that the machinery was worth about Rs.40 lakhs and it was given towards the liability. Whereas, it is the specific contention of the plaintiff that the machinery was given on loan basis and it was not in working condition. Such being the stand of the plaintiff, it is for the defendants to establish that the machinery was worth about Rs.40 lakhs and it was given towards the discharge of the liability. In the absence of any evidence, the discharge and satisfaction pleaded by the defendants have no legs to stand. Accordingly, as admitted by the defendants, the plaintiff is entitled to recover a sum of Rs.38,71,214/- from the defendants. 14. Issue Nos.1 & 3 : As per the plaint pleadings, as on 30.11.2002, the defendants are liable to pay Rs.92,21,744/-. The period of limitation started on 30.11.2002 and the suit should have been filed for recovery of the amount within three years from 30.11.2002. It is the contention of the plaintiff that the first defendant has acknowledged the liability and sent his letter dated 30.01.2006 admitting the balance is Rs.38,71,214/-. Hence, it is the contention of the plaintiff that the letter, which is marked as Ex.P.33 is a promise to pay the time barred debt. Therefore, the plaintiff can recover that amount. No doubt, Ex.P.33 is dated 31.01.2006 and the first and fourth defendants have signed the document dated 31.01.2006. Admittedly, this letter was signed much after the period of limitation. To construe that it was an acknowledgment of liability under section 18 of the Limitation Act. The acknowledgment of liability must have been made during the subsistence of the limitation period. Whereas, Ex.P.33 signed by some of the defendants only on 30.01.2006, much after the limitation period. Therefore, this Court is of the view that Ex.P.31 cannot be construed as an acknowledgment of liability. The acknowledgment of liability must have been made during the subsistence of the limitation period. Whereas, Ex.P.33 signed by some of the defendants only on 30.01.2006, much after the limitation period. Therefore, this Court is of the view that Ex.P.31 cannot be construed as an acknowledgment of liability. Further, by the letter dated 30.01.2006, the defendants have acknowledged the liability only for a sum of Rs.31,71,214/-. Therefore, the plaintiff's claim for the entire suit claim is certainly barred by limitation. The amount of Rs. 38,71,214 /-, admitted by the defendants, as discussed in Issue No.2, can be recovered by the plaintiff and the suit is well within the period of limitation from the date of Ex.P.31. 15. The learned counsel appearing for the plaintiff would submit that Ex.P.33 can be treated as an agreement containing the promise to pay the time barred debt, which clearly falls under the ambit of section 25(3) of the Indian Contract Act. Therefore, Ex.P.33 can be relied upon and the suit has been filed on 30.1.2009 within the three years from Ex.P.31 and is well within the time. In the judgment of this Court Kapaleeswarar Temple, Mylapore Vs. T. Tirunavukarasu reported in MANU/TN/0178/1975, has held as follows : “3. If only the trial Judge or the Bench of Judges who decided the New Trial Application had adverted their mind to this signal provision in the Indian Contract Act. they would not have held the plaintiff to be entitled only to a portion of the amount claimed by him. But, instead, would have held that the plaintiff was entitled to sustain his entire claim against the respondent on the basis of Ex. P-1. The reason for the Legislature having enacted a provision as Section 25(3) of the Indian Contract Act is not far off to see. It is, no doubt, true that the Limitation Act provides a certain period during which alone a creditor is entitled to institute action against the debtor for recovery of the debt and if the creditor fails to institute the action within the time allowed to him by law, the debtor sets a vested right and is afforded opportunity to resist the action of the plaintiff on the ground that the claim is barred by limitation. However, it is equally open to the debtor to renounce or waive the right conferred on him by the Law of Limitation and bind or obligate himself afresh to discharge the debt incurred by him irrespective of the fact the debt had become barred by limitation on the date he gives the fresh undertaking to the creditor to pay off the debt. The principle is now well known that a person may renounce a benefit of law made for his own protection. 4. Inasmuch as Section 25 clearly lays down that all the cases referred to in Sub-clauses (1) to (3) of Section 25 is a contract, a creditor who has the benefit of such a contract as is contemplated in Sub-clauses (11 to (3) of Section 25 from the debtor is entitled in law to enforce the contract against the obliger and seek recovery of the amount agreed to be paid by the debtor under the contract. 5. The question as to how far a contractual obligation created under Section 25(3) of the Indian Contract Act is enforceable in a Court of law has come up for consideration in several ways. In Kishen Lal v. Gohli, AIR 1938 Lah 757 it was held that when a promise falls under Sub-section (3) of Section 25. it constitutes a valid agreement for the purpose of suing, whether there is a fresh consideration for the promise or not and it is immaterial whether the debts covered thereby are within limitation or not." Niaz Ahmad Khan v. Parshotam Chandra, ILR 53 All 374 = ( AIR 1931 All 154 ) holds that where a mortgage was executed in lieu of an amount due on an earlier bond, a suit on which bond had abated, the mortgage does not fall to the ground owing to the absence of consideration. In Varadaraja Appa Rau v. Suryaprakasa Rau, (1899) 9 Mad LJ 330 a Bench of this Court held: "In order to satisfy the requirements of Section 25, Clause (3). In Varadaraja Appa Rau v. Suryaprakasa Rau, (1899) 9 Mad LJ 330 a Bench of this Court held: "In order to satisfy the requirements of Section 25, Clause (3). Contract Act, a document need not show any intention of creating a fresh obligation in consideration of the barred debt: nor need the debt be known to be barred at the date of the document." Kasturchand Jiwaji v. Manekchand Devchand, AIR 1943 Bom 447 also lays down : "The conditions necessary to constitute a promise within Section 25(3) are that it should be made in writing: be signed by the person to be charged therewith; and be a promise to pav wholly or in part a debt, of which the creditor might have enforced payment but for the law for the limitation of suits. The clause does not require that in the writing itself the consideration should be described as past debt, when in fact it was such past debt and was known to the debtor as such." David Sutherland. Clark v. Rose Grimshaw. 73 Ind Cas 652 = (AIR 1923 Lah 481) holds a written promise to pay a barred debt is not a bond within the meaning of the Stamp Act and is not required by any of the provisions of the Act to be stamped, and consequently the suit was within limitation from the date of the letters, although the debt had become barred before the letters were written. A Bench decision of this Court in Mrs. C. Simon v. M.G. Arogiasami Pillai, 25 Ind Cas 361 = (AIR 1915 Mad 242) in my opinion, provides a complete answer for the matter in question in this revision petition. A Bench decision of this Court in Mrs. C. Simon v. M.G. Arogiasami Pillai, 25 Ind Cas 361 = (AIR 1915 Mad 242) in my opinion, provides a complete answer for the matter in question in this revision petition. The Bench held as follows : "A barred debt is a valid consideration for a promise to pay under Section 25 of the Indian Contract Act even if the promiser did not know it to be barred on the date of the promise." Repelling the contention of the defendant therein that part of the claim was barred by limitation on the date the letter was executed and consequently the letter cannot be treated as evidence of an agreement under Section 25 of the Contract Act to pay a barred debt, the Bench observed as follows: "Assuming that the debt or a portion thereof was barred, the letter contains an unconditional promise to pay whatever balance might be found to be due to the plaintiff. This is a valid agreement under Section 25 of the Contract Act." 16. Admittedly, no acknowledgment, whatsoever, has been made during the subsistence of the limitation period, i.e., on or before 30.11.2005. Whereas, for the first time the first and fourth defendants have signed in Ex.P.33 admitting the accounts. Therefore, this document cannot be construed as an acknowledgment. It is well settled that Section 25(3) of the Indian Contract Act facilitates to pay a time barred debt. But such promise can also by inferred by necessary implication. From the Ex.P.33, the defendants have acknowledged the liability to the tune of Rs.38,71,214/- in their accounts. In the written statement they have also admitted their liability to pay the amount and also have took a plea of discharge. It is the specific case of the defendants that in the year 2006 itself, they had discharged the above amount by giving an embroidery machine. But, as held in the above issue, the discharge has not been proved. From the circumstances, the intention of the defendants can be gathered to hold that under Ex.P.33, though it appears to be mere acknowledgment of accounts, they made a promise to pay the time barred debt. In fact they have pleaded to the effect that the amount is also discharged by way of giving machinery. From the circumstances, the intention of the defendants can be gathered to hold that under Ex.P.33, though it appears to be mere acknowledgment of accounts, they made a promise to pay the time barred debt. In fact they have pleaded to the effect that the amount is also discharged by way of giving machinery. Therefore, when the acknowledgment Ex.P.33 is a promise to pay a part of the debt, the plaintiff can very well file the suit for recovery of the amount within the three years from the date of Ex.P.33. In the judgment in K. Jeyaraman Vs. M/s.Sundaram Industries Ltd. through its special Officer reported in 2008-3-L.W.259, it is held that the promise was a conditional promise and as per the said promise, cause of action for filing the suit arises only after receiving the amount from the Electricity Board and only in the above situation, this Court has held that the above acknowledgment does not fall within the ambit of Section 25(3) of the Indian Contract Act. Hence, the above judgment is not relevant to the facts of the present case. 17. In a judgment in S.A. Shanmugam Vs. P.V.S. Balusamy Chettiar reported in 2001-2-L.W.686, wherein this Court has held that to constitute a valid acknowledgment, there must be definite admission of liability in writing, admitting the jural relationship of debtor and creditor and it should be made before the expiry of the prescribed period for instituting the suit and at times, it may be implied as well. There is no dispute with regard to the above position of law. But in the present case, the case of the plaintiff is that Ex.P.33 is not an acknowledgment, but it is only a promise to pay a time barred debt. As already discussed, the manner in which the defendants pleaded in the written statement, have agreed to pay the amount and also pleaded discharge of the said amount and hence, the above judgment is also not applicable to the facts of this case. Considering the circumstances, this Court is of the view that Ex.P.33 is only a promise to pay time barred debt. As already stated in the judgment of the Single Judge of this Court, the condition constitute necessary promise under section 25(3) of the Contract Act that it should be made in writing, signed by the person to be charged therewith. Considering the circumstances, this Court is of the view that Ex.P.33 is only a promise to pay time barred debt. As already stated in the judgment of the Single Judge of this Court, the condition constitute necessary promise under section 25(3) of the Contract Act that it should be made in writing, signed by the person to be charged therewith. The plaintiff can file such suit under Ex.P.33. It is to be noted that originally the suit has been presented on 30.01.2009. Hence, the suit is filed by the plaintiff is well within the time of limitation, i.e., within three years from 30.01.2006. Further, admittedly, there is no demand made by the plaintiff with regard to the interest. Therefore, this Court is of the view that the plaintiff is not entitled to any interest. 18. Accordingly, the suit is partly allowed and decreed for admitted amount of Rs.38,71,214/- with subsequent interest at the rate of 6% from the date of decree till the date of realization, since the interest has been restricted for the reason that though the suit was presented in the year 2009, it got numbered only in the year 2011, with costs. Consequently, the connected application is closed.