Amrit Narayan Singh vs Baijnath Pandey and Another

Wort, J.—The only substantial question in this appeal is whether a document dated May 2, 1931, purporting to be a hand note was a sufficient acknowledgment within Section 19, Limitation Act to remove the bar of limitation from a previous debt owned by the defendant to the father of the plaintiffs. The facts are these. On May 2, 1931, the defendant executed this document in favour of Bhagwat Pande. He had died a few days previously, that is to say, on April 28, 1931. The hand-note so called appeared to have been given in renewal of two other hand-notes, Exs. 1(c) and 1(d) dated, respectively, May 5, 1928, and July 11, of the same year. The hand-note of May 2, 1931, was given for a sum of Rs. 3.600; having been given in the events which have happened in favour of a dead person the document was obviously invalid as a promissory note. The question arises, therefore, whether the plaintiff can use the document as an acknowledgment u/s 19, Limitation Act. The learned Judge in the Court below has treated it as an acknowledgment within that section.

It is contended in the first instance that the document was not executed by the defendant. One of the contentions to support that argument was that the signature on the hand note bore the word "Babu" and a signature of that kind was highly improbable. That argument, however, I am afraid cannot be supported for the reason that this Court must rely upon the document as translated, the translation appearing in the record of the case. From that translation it would appear that this word was not on the hand-note. In this connection I might add that no question has been raised in the notice of appeal with regard to this, point. The next contention advanced is with regard to the finger-print expert of the Criminal Investigation Department. It appears that on April 16, 1935, the defendant filed a petition summoning the Government'' finger-print expert of the C.I.D. The learned Judge made an order the effect of which was that report, should be called from that expert and that report was received in or about May 27. On June 4, 1935, the Judge makes this order "Finger-print expert''s opinion received from the C.I.D. Patna and is put up. Arguments heard. Judgment reserved." It is Mr. Sinha''s argument that he should have an opportunity to call the finger-print expert as a witness. He certainly filed a petition on April 26, but appears to have consented to the order which was made on that date. If he had any grievance with regard to the matter, he should have made that grievance known on June 1935, instead of arguing the case on the footing of the report which the learned Judge in the Court below has held was inadmissible in evidence, in the absence of the expert. There seems to be no justification, therefore, for the contention now advanced on that point.

I come now to the substantial question whether it was an acknowledgment within the meaning of Section 19, Limitation Act. In Mylapore lyaswamy Vyapoory Mudaliar v. Yeo Kay 14 I.A. 168 : 14 C. 801 : 5 Sar. 50. Sir Barnes Peacock in delivering the judgment of their Lordships of the Privy Council and in construing Section 19 of the former Act which was in the same terms as Section 19 of the Act of 1908, has made this statement:

What liability does this mean? It must mean a liability to the person who is seeking to recover possession, or some person through whom he claims.

and then goes on to observe (as I understand him) that the admission or acknowledgment which was relied upon in that case was of an equivocal character. The acknowledgment which the parties in that case relied upon was an acknowledgment of the liability of certain Mr. Bennett to give possession and it is in that action that their Lordships of the. Judicial Committee pointed out that there was no such acknowledgment to satisfy the statute. With regard to the matter with which we are more particularly concerned, the matter seems to me to be clear. The statute, as their Lordships of the Judicial Committee observed in Maniram v. Seth Rupchand 33 I.A. 165 : 33 C. 1047 : 2 N.L.R. 130 : 4 C.L.J. 94 : 10 C.W.N. 874 does not require an acknowledgment to be addressed to any person. "It has been already pointed out." their Lordships say:

that the acknowledgment was made before the statutory period had run out. Thus one requisite of Section 19 is complied with. The necessity of signature by the party to be charged is also complied with. The acknowledgment is not addressed to the person entitled, but according to the "explanation" given in Section 19, this is not necessary

That was a case in which the acknowledgment was to the effect that for the last five years the person sought to be held liable had open and current accounts with the deceased. On the plain reading of the section, and supported by the decision to which I have referred, it seems to me abundantly clear that this document al though invalid as a hand-note was a sufficient acknowledgment with in, Section 19, Limitation Act. The only other question which has been argued is the question of interest, and our jurisdiction under the Usurious Loans Act, Section 3, is sought by reason of the rate of interest alone, The rate is 16 per cent, per annum and all I need say with regard to that matter it is impossible for us to hold that, that is not a commercial rate or that it is excessive or substantially un fair within the meaning of Section 3 of the Act. The appeal fails and must be dismissed with costs.

Manohar Lall, J.

I agree.