1. The plaintiff in this case sues the defendants on a promissory note dated the 2nd May 1904-Rs. 5000 demand promissory note-and on the 20th September 1904, it is proved, Rs. 1000 were paid by the defendant to the plaintiff.
2. The only defence that was raised by Mr. Lang for the defendant was that of limitation.
3. The plaint was admitted on the 10th June 1907, which was the first day after the long vacation of this year.
4. Two points have been raised on behalf of the defendants upon the question of limitation.
5. Of course the three years elapsed on the 2nd May 1907.
6. The first question that arises is : whether the plaint can be said to have been presented within the proper period. As I have said it was presented on the first day after the vacation on the 10th June 1907; and I have been referred by the Prothonotary, who admitted the plaint, to a case which is exactly in point, being Appeal 746 in Suit No, 383 of 1886, which was heard on the 24th November 1893 before Sir Charles Sargent and Mr. Justice Farran. There the question was raised whether the appeal was within time and the Court held that
"under
Section 5 of the Limitation Act if the time for filing an appeal expires in the vacation, it can be admitted on the first day the Court re-opens. The notice put up by the Prothonotary provides for 'urgent' work during the vacation and we cannot consider the mere filing of an appeal as work of an 'urgent' nature"
. It appears to me that I am bound by that decision. Filing an appeal is exactly analogous to filing a plaint.
7. With regard to the other point which was argued, in my opinion, the defendants would be entitled to succeed on it, because in spite of the evidence given on behalf of the plaintiff, it is perfectly plain that this sum of Rs. 1000 was paid and accepted on account of principal and not on account of interest, To constitute the payment of principal sufficient under Section 20 of the Limitation Act, it must be in the hand-writing of the person making the same. So also the payment of interest must be made as such. There is a direct authority referred to in Star- ling's Limitation Act, viz. Hanmantmal v. Rambabai (1879) I.L.R. 3 Bom. 193 and also Diwan Buta v. Hukam Chand (1894) 124 P.R. 1394. The note on Interest -at page 102 of Starling's Limitation Act is as follows :-
" This Section (Section 20) requires some thing more than the English law does, viz. that interest must be paid as interest, i.e., it must be distinctly stated at the time of payment that it is paid on account of interest, or else there must be evidence from which the payment as interest may be distinctly inferred and if so, the mere proof of payment is sufficient. Principal must always be paid as principal, but the fact of the payment must appear in the hand-writing of the person making the same, i.e., of the debtor or his duly authorized agent; consequently, if a lump sum be paid by a debtor to his creditor and no intimation be given as to how it is to be appropriated and no memorandum be made by the payer of its payment, it cannot be treated as part-payment of principal, because of the want both of appropriation and of a memorandum and it cannot be treated as part-payment of interest because it was not paid as such;
Hanmantmal v. Rambabai (
1879) I.L.R. 3 Bom. 193,
Diwan Buta v. Hukum Chdnd (
1894) 124 P.R. 1894; and the fact that the payment is a part-payment of principal cannot be proved aliunde by the creditor;
Diwan Buta v. Hukum Chand, ubi supra; but the fact of its being a part-payment of principal need not be stated in so many words, it may be inferred from the writing itself."
8. That case of Hanmantmal v. Rambabai (1879) I.L.R. 3 Bom. 193 is in point and I am bound by it. The plaintiff, therefore, fails on this point.
9. But as the plaintiff succeeds on the other ground, the decree must be for the plaintiff for the amount claimed with interest.
10. There will, therefore, be a decree for the plaintiff for Rs. 4000 with interest at 9 per cent. per annum thereon from the 21st September 1904 till judgment. Cost and interest on judgment at 6 per cent. per annum.