Madras High Court
Pamulapati Venkatakrishniah (Minor ... vs Kondamudi Subbarayudu And Two Ors. on 14 April, 1916
Equivalent citations: (1917)ILR 40MAD698
JUDGMENT Napier, J.
1. I adhere to the opinion expressed by me in Jaganadha Sahu v. Rama Sahu (1914) 17 M.L.T. 80, on the same words as are in this document. I have no doubt that there is in this endorsement an acknowledgment. I cannot accept the argument, that Section 20 of the Limitation Act IX of 1908 prevents the operation of Section 19. It is argued that this is a special provision limiting the application of Section 19 and taking part-payments out of Section 19. I cannot treat these sections as being one general and the other special. Section 19 only operates as against the person making the acknowledgment, while Section 20 makes the part-payment good in favour of any suit on that liability. The second difference is that an acknowledgment need not be addressed to the person entitled; while under Section 20, the payment is, of course, not a payment unless made to the person entitled. It is clear, therefore, that Section 20 has a wider operation and that would account for the Legislature requiring actual handwriting before giving full effect to the language; but where there is not the handwriting, but only the signature, its operation is limited.
2. The appeal is allowed and the case is remanded for disposal.
3. Costs in this case will be costs in this cause.
Srinivasa Ayyangar, J.
4. The short question in this appeal is whether the plaintiffs' suit is barred by limitation. The suit is one to enforce a simple mortgage by sale of the security and it ia admitted that unless a payment of Rs. 400 in 1905 which is endorsed on the mortgage instrument saves the bar, the action will be barred. The payment is admitted to have been made for principal. Although the endorsement is signed by the debtor, the writing is not that of the debtor but that of the creditor. It is therefore clear that the payment is ineffective to give a fresh period of limitation under Section 20 of the Limitation Act. But it is argued for the appellant that although the payment as part-payment of principal is useless to save the bar under Section 20, the endorsement by the debtor on the bond signed by him is an acknowledgment under Section 19. In a case exactly similar to this in Jaganadha Sahu v. Rama Sahu (1914) 17 M.L.T. 80, my learned brothers Napier and Sadasiva Ayyar, JJ., held that such an endorsement, if it complied with the requirements of Section 19, may be good as an acknowledgment. I respectfully agree. I have no doubt that the terms of the endorsement in this case, amount to an acknowledgment of liability. The debtor states in terms that he pays Rs. 378 towards the amount due on the bond and on the same day, made another payment of Rs. 22 and made another endorsement. I construe the endorsement as meaning that the debtor made a part-payment of the amount due on the bond (on that day over Rs. 1,500 was due as shown on the face of the bond) which is certainly an acknowledgment that more money was due.
5. It is contended by the learned pleader for the respondents, that Sections 19 and 20 are mutually exclusive, that Section 20 is a special section, dealing with a particular species of acknowledgment (that is, by part-payment) and in such cases unless the case falls under Section 20, that acknowledgment has no effect, I am unable to agree with this contention.
6. Acknowledgments under Section 19 have an operation which is different from the operation of part-payments under Section 20. The distinction between the effects of acknowledgments and part-payments has often been pointed out in England: see Bolding v. Lane (1863) 1 De G.J. Sm. 123; s.c. 46 E.R. 47 and Lewis v. Wilson (1886) 11 A.C. 639 and the same distinction appears to have been made in the enactment of Sections 19 and 20. At any rate, it is impossible not to give effect to an acknowledgment which fulfills the requirements of Section 19 though the acknowledgment may evidence also an ineffectual payment under Section 20. The two sections deal with two different matters. They can be read together and there if no inconsistency. I think therefore that the appeal must be allowed and the suit remanded to the First Court for a trial of the other issues.