T. Ramakrishna Chetty v. G. Venkatasubbiah Chetty

1. The plaintiffs sue to recover Rs. 4,294 with costs and further interest due on a promissory-note, dated 24th January 1911, executed by defendants Nos. 1 to 3 in respect of dealings between the parties.

2. Defendants Nos. 4, 5 and 7 are the sons of the 1st defendant.

3. Defendants Nos. 6 and 8 are sons of the 2nd defendant.

4. It is alleged that the defendants are members of an undivided family and that the trade carried on by defendants Nos. 1 to 3 is family trade. It is also alleged that the suit is not barred by limitation, by reason of the payment of Rs. 10 towards interest by defendants Nos. 1 to 3 on the 22nd January 1914, which payment was endorsed on the promissory-note and signed by them.

5. Defendants Nos. 1 to 3 filed a written statement admitting the execution of the promissory-note, but pleading that they did not pay the sum of Rs. 10 towards interest on the 22nd January 1914 and that the endorsement is not sufficient to save limitation as it does not satisfy the requirements of Section 20 of the Limitation Act defendants Nos. 4 and 5 are ex parte; 6th Defendant did not file a written statement; 7th and 8th defendants, through their guardian ad litem, filed a written statement putting the plaintiffs to the proof of the various allegations in the plaint and to the validity of the endorsement saving limitation.

6. The following issues were settled:—

(1) Was the payment on 22nd January 1914, as alleged in the plaint, and if so, is it sufficient to save limitation?

(2) If not, is the endorsement on the promissory-note good as an acknowledgment?

7. The note was executed on the 14th January 1911. On the 17th January 1914 the plaintiffs applied for leave to file the suit in the High Court and notice was ordered returnable on the 24th. The 2nd plaintiff then went to the defendants' village and according to him, he demanded the payment of the amount due on the promissory-note and defendants Nos. 1 to 3 paid Rs. 10 for interest and made the endorsement (Exhibit A), which was written by the 5th defendant, who is the son of the 1st defendant, and signed by defendants Nos. 1 to 3. The endorsement (Exhibit A) runs as follows:—“On the 22nd January 1914 the amount paid towards this promissory-note in ready money is Rs. 10, in words rupees ten.” It is attested by three witnesses viz., P. Parthasarathy Aiyangar, Venatasubbayya and the 5th defendant. Second plaintiff states that after making the endorsement he came to Madras, and that he made the entries (Exhibit B1 and B2) in his cash-book (Exhibit B) and ledger (Exhibit B) which are to the effect that Rs. 10 was paid on account of interest. The defendants admit making the endorsement, but their case is that the 2nd plaintiff came to their village and said that the note was about to become barred and asked them to make an endorsement on the promissory-note and that the endorsement was made without any money being paid at the time.

8. I am of opinion that Rs. 10 was paid on the date of the endorsement [Exhibit A (1)]. The next question is whether it was paid for interest or principal.

9. The entries [Exhibits B(1) and b(1)] made almost immediately after the endorsement show that the payment was for interest and the probabilities support this view. I find the first issue in plaintiffs' favour.

10. Second Issue. Even assuming that there was no payment of Rs. 10 as alleged by the defendants, the endorsement would be sufficient as an acknowledgment of liability and would save limitation. The endorsement has already been set out by me in full and whatever my own opinion might be, I am bound to follow the decision in Visvanatha Santhasingaro v. Ramachandra Mardraja Deo(1), and Jaganadha Sahu v. Rama Sahu(2), where it was held that an endorsement which was not good as payment under Section 20 might still be sufficient as acknowledgment under Section 19 of the Limitation Act. In the present case it is admitted by the defendants that the parties signed the endorsement with the intention of its being an acknowledgment of liability and saving limitation. The wording of the endorsement is similar to the acknowledgments which in Visvanatha Santhasingaro v. Ramachandra Mardraja Doeo and Jaganadha Sahu v. Rama Sahu, were held to be sufficient under Section 19 of the Limitation Act. I hold that the endorsement is good as an acknowledgment. It follows from my findings that the suit is not barred by limitation.

11. There will be a decree for the amount claimed with costs and further interest against defendants Nos. 1, 2 and 3 personally and against defendants Nos. 4, 5, 6, 7 and 8 to the extent of any joint family properties in their hands.

S.N/R.K

12. Suit decreed.