Rajasthan High Court - Jaipur
Nand Lal Thanvi vs Legal Representatives Of Goswami Brij ... on 3 April, 2002
Equivalent citations: RLW2003(2)RAJ1147, 2002(5)WLC173, 2002(5)WLN630
Author: Prakash Tatia
Bench: Prakash Tatia
JUDGMENT Tatia, J.
1. This is appeal against the judgment and decree dated 22.8.1983 passed by the learned Additional District Judge No. 2, Jodhpur in Civil Original Suit No. 32/80 by which the trial Court dismissed the suit of the plaintiff for recovery of Rs. 21,441.76 holding the suit of the plaintiff as barred by time.
2. The plaintiff filed the suit for recovery of the above amount alleging that the plaintiff was engaged by the defendant deceased Goswami Brij Bhushan for preparing coloured moves for the marriage of defendant's sons Navneet Baba and Balkrishan Baba and for thread-ceremony of defendant's daughter's son. According to the plaintiff he completed the job and submitted bill for Rs. 24,766/-. The plaintiff paid Rs. 5000/-on different dates in advance and also paid Rs. 4000/- on 20.8.1974. The above functions in the family of the defendant took place in the month of May, 1973. The defendant, despite request from the plaintiff, did not pay the balance amount of Rs. 15,766/-, therefore, the plaintiff filed suit for recovery of the above amount and claimed interest at the rate of 12% per annum. In the trial Court, the plaintiff appeared as PW-1 and also produced the witness PW2 Daulal. The plaintiff produced the bill Ex.1, letters of the plaintiff dated 6.1.1974 Ex.2 and Ex.3 and the other documents were also produced including the notice dated 20.7.1977 served on behalf of the plaintiff by his advocate upon the defendant and the reply which was given by the advocate of the defendant on 9.8.1977. The defendant did not produce any in evidence in rebuttal nor he himself appeared in witness box.
3. The trial court decided all the issues in favour of the plaintiff except the issue of limitation. The trial court held that the plaintiff was engaged for doing the job of photography and preparing the coloured moves. The trial Court found that bill was submitted by the plaintiff and the plaintiff is entitled for the interest over the above amount.
4. While deciding issue No. 8, the trial court took note of the fact that the job was completed in the month of May 1973 but the suit was filed on 19.8.1977, therefore, the suit of the plaintiff, filed after three years, was barred by time. The trial court negatived the plea of extension of period of limitation on the ground of part payment coupled with the acknowledgment in writing of the defendant to save the limitation for filing suit. Therefore, the only points involved in this appeal are whether the suit of the plaintiff is barred by time or not and whether the plaintiff is entitled to have extension of period of limitation in view of the fact that the defendant himself paid Rs. 4000/- to the plaintiff on 20.8.1974 and it was acknowledged in writing by the defendant through his agent (advocate) and whether the written acknowledgment through the agent, can be a valid acknowledgment in case part payment was made by the principal himself in view of the provision to Section 19 of the Indian Limitation Act.
5. The trial Court decided against the plaintiff on the ground that as per Section 19 of the Indian Limitation Act, the limitation can be extended only when part payment is made within the period of limitation available to the plaintiff and the trial court also held that mere part payment of the debt cannot extend the period ol limitation unless it is acknowledged by the debtor within the period of limitation.
6. So far as finding of the trial court that if part payment is made within period of limitation but acknowledgment in writing is not within period of limitation then benefit of extension of period of limitation is not available is concerned, it appears that the learned Judge of the trial court, has misread the law laid down by the Hon'ble Supreme Court in the case of : Sant Lal Mahton v. Karnla Prasad and Ors. (1), wherein the Hon'ble Apex Court categorically held that the requirement of Section 19 for fresh period of limitation is only part payment towards the debt by the debtor either directly or through his agent. The acknowledgment in writing of the part payment can be even after period of limitation but it must be before filing of the suit by the plaintiff. Therefore, the learned trial judge has wrongly applied the law and wrongly held that the suit of the plaintiff is barred as acknowledgment was not made within the period of limitation.
7. Even after holding that limitation can be extended by part payment within a period of limitation and acknowledgment in writing of part payment made even after expiry of the period of limitation but before the filing of the suit by the plaintiff will extend period of limitation even then in this case the questions survive are that : (I) whether the defendant made the payment of Rs. 4000/- on 20.8.1974?, (2) whether there is any acknowledgment of part payment in the reply dated 9.8.1977 signed by the defendant through his advocate in reply to the notice of the plaintiff dated 20.7.1977? and (3) whether the alleged acknowledgment in the reply dated 20.8.1974 is a valid acknowledgment of the part payment of the debt of the defendant.
8. The learned counsel for the appellant relied upon the plaintiff's statement on oath that the defendant paid Rs. 4000/- to the plaintiff in cash on 20.8.74, since the job was completed in the month of May, 1973, therefore, this part payment is within the period of limitation. To prove part payment, the plaintiff's statement has not been rebutted by the defendant by appearing in the witness box and there is notice dated 20.7.77 wherein he categorically stated that the defendant paid Rs.4000/- in cash on 20.8.74 and implied admission of payment by the defendant in reply to the plaintiff's notice.
9. The learned counsel for the respondent tried to submit that the above payment of Rs. 4000/- was denied by the defendant in reply Ex. 16 dated 9.8.1977 of the plaintiff's notice and in the written statement but there is no force in the submission of the learned counsel for the respondent because of the reason that even the defendant did not choose to prove it by evidence. Not only this but the language used in para No. 3 of the reply to the notice where there is a mention of Rs. 4000/- with the date of 20,8.1974, the reply is vague. In para No. 5 of the reply to notice there is clear admission of payment of Rs. 9000/- by the defendant to the plaintiff which includes Rs. 5000/- the advance amount and Rs. 4000/- paid on 20.8.1974 after the job was completed, therefore, it is proved, as a matter of fact, that the defendant paid Rs. 4000/- to the plaintiff on 20.8.1974.
10. Now the crucial point remains is that whether the payment of Rs. 4000/- on 20.8.1974 by the defendant was validly acknowledged in writing by the defendant so as to extend the period of limitation for filing the suit. The contention of the learned counsel for the respondent is that as per the Sec, 19 of the Indian Limitation Act, 1963, part payment of the debt is required to be acknowledged in writing by the person making the payment only and not by any other person.
11. Section 19 of the Indian Limitation Act is as under:-
"19. Effect of payment on account of debt or of interest on legacy. -Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment."
12. If the interpretation which was taken by the Full Bench of the Calcutta High Court and subsequently followed by the Patna High Court will be accepted then it will result into situation that in case payment is made by the debtor through his authorised agent and if the debtor himself (who is principal) wants to give acknowledgment of the part payment of the debt, he cannot give acknowledgment. This will result into holding that the agent will have the power which even the principal has not. This will be against the basic principal of agency. It will be relevant to look into law governing the effect of agency as provided u/Sec. 226 of the Indian Contract Act, 1872. Section 226 of the Indian Contract Act, 1872. Section 226 of the Indian Contract Act reads as under:- .
"226. Enforcement and consequences of agent's contract.- Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences, as if the contracts had been entered into and the acts done by the principal in person.
13. Section 226 gives complete answer to the controversy. Section 226 provides that obligations arising from the contract by an agent may be enforced and will have the same legal consequence as if the contract had been entered into and the act done by the principal in person. Therefore, it is held that if part payment is made by the principal himself, its acknowledgment in writing as provided under Section 19 of the Indian Limitation Act. 1963 can be made by the agent of the debtor. Acknowledgment in such case by the agent of the debtor shall be treated as if it has been done by the debtor himself in person.
14. If it is examined further taking into account where the person himself normally does not personally do the work of writing or unable to write due to illiteracy or due to any reason can be not avoid litigation against himself by making part payment of debt to the creditor without involvement of third person to make payment on his (debtor's) behalf and further to acknowledge it in writing. No only this but in case payment has been made by the duly authorised agent of the debtor and the debtor is having no more money to pay and debtor cannot get the writing of his agent through whom he made the part payment to creditor, can he (debtor) not avoid litigation or coercive recovery even when he is willing to acknowledge the party payment to extend limitation for filing suit? Not only this but it will make the working of the institution virtually impossible where the institution owes some money and makes payment trough its accounts section either in cash or by cheque and the correspondence are dealt with by the administrative wing of the department or the company. The department or the company even will be precluded from making acknowledgment of the part payment of the amount of the debt paid to the creditor. There is no lawful reason to hold that a person duly authorised as his agent of a debtor cannot act as an agent or authorised person for this particular purpose for giving acknowledgment of part payment of the debt.
15. Though there are judgment of the Full Bench of the Calcutta High Court and the various judgments of the Patna High Court in support to the arguments of the learned counsel for the respondent. I am respectfully feeling unable to agree with the view taken by the Full Bench of the Calcutta High Court and the Patna High Court in the various judgments.
16. The word acknowledgment has been used under Section 18 of the Indian Limitation Act. Sub-clause (b) of explanation below Section 18 provides as under:-
"18. Effect of acknowledgment in writing.-
(1) ..... ...... ........ ......... (2) .... ...... ........ ......... Explanation. ...... (a) .......................
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf, and
(c) ..... ...... ........ .........
17. Section 18 deals with the effect of the acknowledgment in writing for the purpose of period of limitation. Under Section 18 it is provided that where before the expiration of the prescribed period for the suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. It is clear from the plain reading of the Sub-clause (b) of Explanation to Section 18 that the authorised agent has been authorised to sign the acknowledgment. As per Section 18 acknowledgment can be with respect to the not only property or right but it can be even with respect to the liability. Therefore, when the authorised agent has been given to acknowledge the liability in respect of any property or right then there appears to be no reason to given a different meaning to the acknowledgment used in the proviso to Section 19 and it can be held that the acknowledgment of payment by the agent authorised by the debtor is the acknowledgment by the debtor himself and this will be in consonance of law which binds the principal and agent while dealing with third party. From the judgment relied upon by the learned counsel for the respondent, I could not find out any reason except drawing a literal meaning of the words used in the proviso to Section 19 but without examining the contingencies which may arise, some of which are discussed above and will be contrary to Section 226 of the Indian Contract Act resulting in destroying the lawful meaning of the agency and that too without there being any object which can be achieved by holding as held in the judgment of the Calcutta High Court and subsequently followed by the various judgments of the Patna High Court. Therefore, in view of these reasons also it is held that if the payment against the debt is made by the principal, the acknowledgment in writing can be made by the authorised agent and in case the payment is made by the authorised agent, acknowledgment can be made even by the principal.
18. So far as the acknowledgment of payment of Rs. 4000/- by the advocate is concerned, it was found, as a matter of fact, that there is clear acknowledgment of part payment of Rs. 4000/- on behalf of the defendant and it is not in dispute that the advocate gave reply (Ex.16) to the plaintiff for and on behalf of the defendant and the reply was given as per the instructions of the debtor-defendant which clearly constitutes the acknowledgment in this case. It is also relevant to mention here that the defendant did not choose to challenge the authority of the advocate to acknowledge the payment against the debt on behalf of the defendant nor it is the case of the defendant that he did not instruct has counsel to admit the receipt of Rs. 9000/- which unambiguously includes the payment of Rs. 4000/- 20.8.1974. Therefore, the limitation will start against the plaintiff from 20.8.1974 and the suit was filed by the plaintiff on 19.8.1977. Hence the suit is within the period of limitation.
19. The learned counsel for the respondent challenged the finding of the learned trial court on issue No.6 saying that there was no contract for payment of the interest at the rate of 12% per annum. The bill which was relied upon by the plaintiff to prove the rate of the interest was never accepted by the defendant and it has not been signed by the defendant, therefore, the condition mentioned in the bill for payment of interest is not binding upon the defendant. Therefore, the trial Court has committed illegality in awarding interest at the rate of 12% per annum. The plaintiff has claimed the interest and when it is found that the defendant has wrongly retained the due amount of the plaintiff, I do not find any reason to disallow the interest to the plaintiff.
20. The arguments have been advanced by both the learned counsel to interpret the proviso to Section 19. According to the learned counsel for the appellant, the acknowledgment of the payment can be valid if it is in the handwriting of duly authorised agent of the debtor even when part payment was made by the debtor himself and it is not necessary that it should be in the handwriting of the debtor himself only. In support of this, the learned counsel for the appellant relied upon the judgment reported in : Wazir Sultan and Sons v. P. Satchitananda Rao and Ors. (2),. This judgment is not dealing with the point in controversy directly. Another judgment relied upon by the learned counsel for the appellant is of the Division of the Madras High Court reported in : A.K. Srinivasa Naidu v. S. Jayarama Reddiar Firm (3), wherein the Division Bench of the Madras High Court held that the acknowledgment of the debt by the advocate of the debtor in reply to the notice of the plaintiff was sufficient acknowledgment to save the limitation for filing the suit by the plaintiff under Section 19 of the Indian limitation for filing the suit by the plaintiff under Section 19 of the Indian Limitation Act, but in this case also. Point was not specifically raised.
21. The learned counsel for the respondent vehemently submitted that the learned of the proviso to Section 19 is very clear and it makes unambiguously clear that the requirement of law is that if the payment is made by the principal then acknowledgment must also be in the handwriting of the principal and in case payment is made by the agent of the debtor then acknowledgment must also be in the handwriting of the agent only. In case payment is made by the debtor and acknowledgment is in the handwriting of the agent or in case, payment is made by the agent of the debtor and acknowledgment is in the handwriting of the debtor then in both cases, there cannot be a valid acknowledgment to save the period of limitation under Section 19 of the Limitation Act. The learned counsel for the respondent relied upon the judgment which were also considered by the trial Court. The first judgment is Full Bench decision of the Calcutta High Court reported in : Mukhi Haji Rahmuttulla v. Coverji Bhuja (4). In this case, the Full Bench of the Calcutta High Court held as under:-
"......it is the handwriting of the person making payment, which is required as an essential condition to the operation of that part of the section which provides for the exemption from limitation."
This judgment was followed by the Division Bench of the Patna High Court in the case of ; Bishun Perkash Narain Singh and Anr. v. Muhamnmad Sadique and Anr. (5) & and further followed in the Division Bench judgment of the Patna High Court in : Manindra Nath Ray and Anr. v. Kanhai Ram Marwari (6) and also in : Banwarilal v. Ram Chandra Singh and Ors. (7).
22. I perused the above rival submission. The first judgment is Full Bench decision of the Calcutta High Court and the Full Bench of the Calcutta High Court specifically dealt with this point. The Full Bench considered the earlier judgment of I.L.R., 7 Mad,. 55 (8) and I.L.R., 7 Mad., 76 (9), wherein it was held that acknowledgment in the handwriting of another person was sufficient to satisfy the provision of the Act but the Full Bench, while considering the matter which was before the Full Bench, observed as under:-
"It appears to us that the intention of the section must be, so far as possible, to exclude oral evidence furnished by the handwriting of the person making the payment; and that it is the handwriting of the person making the payment, which is required as an essential condition to the operation of that part of the section which provides for the exemption from limitation."
23. Therefore, the appeal of the appellant is allowed and the finding recorded by the trial court against the plaintiff holding the suit barred by time is set aside. The suit of the plaintiff is decreed for the sum of Rs. 24, 766/-. The plaintiff will also be entitled for the interest at the rate of 12% per annum over the principal amount of Rs.
15,766/- from the date of filing of the suit till the date of recovery. The plaintiff will also the entitled for the cost of the suit as well as of the appeal.