The appellant challenged the dismissal of a money suit which was held to be barred by limitation. The High Court held that the alleged payment did not satisfy the requirements of Section 19 of the Limitation Act. The appeal was dismissed as being without merits.
The Second Appeal is dismissed. No order as to costs.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE P.BHAVADASAN
MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933
SA.No. 570 of 1996()
-------------------AS.14/1993 of ADDITIONAL SUB COURT,KOCHI OS.164/1991 of ADDL.MUNSIFF COURT,KOCHI ....................
SECOND APPELLANT(S): APPELLANT/PLAINTIFF
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K.K.PRABHAKARAN, S/O.KOCHAPPAN, ADVOCATE, KALATHIPARAMBIL HOUSE, NARAKKAL P.O. A582 505.
BY ADV. SRI.S.SREEKUMAR
RESPONDENT(S): RESPONDENT/DEFENDANT
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ANTONY ALIAS ANTHAPPAN, THEKKANATH HOUSE, NEAR CHERUPUSHPALAYAM CHURCH, NARAKKAL 682 505.
ADV. SRI.SABU GEORGE
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
P. BHAVADASAN, J.
Dated this the 23rd day of May, 2011.
JUDGMENT
The plaintiff, who is aggrieved by the
concurrent findings by which the suit was dismissed, is the appellant.
some transaction between the plaintiff and the defendant, the details of which are not very relevant for the purpose of this appeal. The plaintiff claimed on the basis of the transaction that an amount of Rs.4,138/- was due to him. The defendant disputed the transaction and the liability.
plaintiff. The defendant had marked Ext.B1.
S.A.570/1996.
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of law:
“(a) When the plaintiff had produced along with the plaint the promissory note executed by defendant even though not stamped, can it be received in evidence for the collateral purpose of acknowledgment of the liability?
(b) When the licence period expired only on 14.4.1988, when the liability to pay the entire amount terminates, whether the courts below are justified in relying upon an earlier date for reckoning limitation?
S.A.570/1996.
3
© When the plaintiff had proved the cause of action and no contra evidence is forthcoming, whether the courts below are justified in holding that suit is barred by limitation?
(d) When the plaintiff had specifically pleaded that defendant executed a document acknowledging the liability and produced the same along with plaint, whether the courts below are justified in holding that there is no plea of acknowledgment?
(e) The suit is not for realisation of a time barred debt as pleaded and proved, whether the courts below are justified in holding that there shall be a plea of acknowledgment.”
pointed out that the courts below were not justified in holding that the suit was barred by limitation. Reliance was placed on the payment said to have been made on 4.5.1989
and contended that the suit is within the period of limitation. It is contended that the said payment can be treated as an
S.A.570/1996.
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acknowledgment of debt as provided in Section 19 of the Limitation Act.
“ 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
S.A.570/1996.
5
the handwriting of, or in a writing signed by, the person making the payment.
Explanation- For the purpose of this section,-
(a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;
(b) “debt” does not include money payable under a decree or order of a court.”
Section 19 mentions about two ingredients, (1) regarding the part payment and (2), acknowledgment in writing of the said payment. In the case on hand there is nothing to show that the second ingredient is satisfied. Both the courts below have found so. Learned counsel for the appellant was unable to show that the courts below have erred in any manner in coming to the conclusion that the suit is barred by limitation. No substantial question of law arises for consideration in this Second Appeal.
S.A.570/1996.
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The second appeal is without merits and it is
dismissed. There will be no order as to costs.
P. BHAVADASAN, JUDGE
sb.
2 issues framed by the court
Whether a payment made on 4.5.1989 constitutes an acknowledgment of debt under Section 19 of the Limitation Act. Whether the claim was barred by limitation despite the plea of acknowledgment.
Whether the clause regarding the plaintiff's claim is time-barred.
1 provisions across 1 enactments
K.K.PRAHAKARAN
ANTONY ALIAS ANTHAPPAN
P BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
