This appeal is directed against the judgment and decree dated 08.11.1996 made in O.S.No.76/1994 on the file of the Principal Subordinate Judge, Nagapattinam. The defendant in the suit is the appellant herein.
2. The first respondent herein had instituted the above said original suit against the appellant herein for the recovery of a sum of Rs.5,70,000/- towards the principal and interest upto the date of the suit along with subsequent interest on the basis of his contention that the appellant herein/defendant borrowed a sum of Rs.4,00,000/- from the respondent herein/plaintiff in April 1989 to meet the expenses of the marriage of his son and daughter proposed to be arranged shortly thereafter.
3. It was the further contention of the 1st respondent herein/plaintiff that, as the marriage of Janaki, daughter of the appellant herein/defendant with the son of the 1st respondent/plaintiff had been fixed and the appellant herein/defendant proposed to arrange for the marriage of his son also, he wanted the above said financial assistance from the 1st respondent/plaintiff promising to repay the same with interest and that the respondent/plaintiff, taking into account the fact the appellant/defendant was going to be the father-in-law of the son of the first respondent/plaintiff, obliged and made payment as requested by the appellant herein/defendant. It is the further case of the respondent/plaintiff that since the matrimony between the above said Janaki (daughter of the appellant/defendant) and the son of the first respondent/plaintiff did not last long and it broke down within a couple of months after their marriage and the said Janaki went to the extent of giving a complaint in the police station at Nagapattinam alleging commission of offences under the provisions of the Dowry Prohibition Act by the family members of the 1st respondent/plaintiff, the 1st respondent/plaintiff had to demand repayment of the amount lent by him to the appellant/defendant; that the appellant/defendant on the other hand tried to set up a false case as if the said amount was paid for purchasing the house of the appellant/defendant and subsequently, the respondent/plaintiff retracting from the said commitment refused to purchase the property and insisted upon repayment of the amount; that the appellant/defendant also made attempts to sell the property in order to defeat the claim of the 1st respondent/plaintiff and that in such circumstances, the plaintiff was constrained to cause a notice to be issued by his son through a lawyer and an advertisement in the newspaper informing the public that they should not purchase the property before ever the claim of the 1st respondent/plaintiff could be settled and filed a suit for the recovery of the above said amount when a reply containing false allegations was received from the appellant/defendant.
4. According to the plaint averments, eventhough the amount was lent in the month of April 1989, the appellant/defendant made acknowledgements in writing on 15.03.1991 at the first instance, on 03.07.1991 at the second instance, on 17.10.1993 and 22.12.1993 respectively on the third and fourth instances and in view of the said acknowledgements limitations started afresh on each occasion when such acknowledgement was made and hence the suit was not barred by limitation.
5. The suit was resisted by the appellant/defendant by putting in a written statement containing the following allegations:
The appellant/defendant never admitted that he borrowed a sum of Rs.4,00,000/- from the 1st respondent/plaintiff and the admission made by him was to the effect that only a sum of Rs.3,00,000/- was received by him from the 1st respondent/plaintiff. It was the 1st respondent/plaintiff, who approached the appellant/ defendant with a proposal for the marriage of the son of the plaintiff with the daughter of the defendant. As the appellant/defendant did not have funds for arranging the marriage, he informed the 1st respondent/plaintiff that he could arrange the marriage provided the 1st respondent/plaintiff gave him financial assistance. In such circumstances, the 1st respondent/plaintiff came forward to purchase the house property of the appellant/defendant for a sum of Rs.5,50,000/-. Out of the above said agreed amount, 1st respondent/plaintiff paid only a sum of Rs.2,92,000/- to the appellant/defendant and promised to utilise another sum of Rs.1,00,000/- for purchasing jewels for the daughter of the appellant/defendant. However, the 1st respondent/ plaintiff did not give any jewels to Janaki, the daughter of the appellant/defendant. As the amount was lent, according to the plaint averments, in April 1989, the suit should have been filed before the end of April 1992. Even on the basis of the alleged acknowledgement in the form of a letter dated 15.03.1991, the suit should have been filed on or before 15.03.1994. As the suit was not filed on or before 15.03.1994 and it was in fact filed on 30.03.1994, the suit should be dismissed as barred by limitation. The alleged letter dated 03.07.1991 addressed to Thiru.Ramamurthy, the son-in-law of the respondent/plaintiff, by no stretch of imagination, could be construed to be an acknowledgement of liability. The said letter was not addressed to the respondent/plaintiff and hence he cannot claim it to be an acknowledgement saving limitation. Therefore the suit should be dismissed as hopelessly barred by limitation.
6. Based on the above said pleadings made by the respective parties, the learned Trial Judge framed three issues as follows:
1) Whether the suit is barred by limitation?
2) Whether the plaintiff is entitled to the relief as prayed for in the plaint and
3) What are the other reliefs to which the plaintiff is entitled?
7. On the above said issues the parties went for trial, in which the plaintiff examined himself as the sole witness, namely PW-1 on his side and produced seven documents, marked as Ex.A1 to A7. Including appellant/defendant, three witnesses were examined as DW-1 to DW-3 and seven documents were produced and marked as Ex.B1 to Ex.B7 on the side of the appellant/defendant.
8. At the conclusion of trial, the court below considered the pleadings made and the evidence brought-forth on either side in the light of the arguments advanced by respective counsel. Upon such a consideration, the learned Principal Subordinate Judge, Nagapattinam pronounced a judgment on 08.11.1996 sustaining the claim made by the 1st respondent/plaintiff and decreeing the suit in part. As per the decree drafted in the above said judgment, the appellant/ defendant was directed to pay a sum of Rs.4,00,000/- along with an interest for the above said amount at the rate of 9% per annum from 21.09.1993 and thereafter at the rate of 6% per annum till realization.
9. Aggrieved by and challenging the above said judgment and decree, the appellant herein/defendant in the suit has brought-forth this appeal on various grounds set out in the Memorandum of Appeal.
10. This court heard the submissions made by Mr.P.Mani, learned counsel for the appellant and Mrs.R.T.Shyamala, learned counsel for the second and third respondent. The materials available on record submitted by the trial court for reference in this appeal were also considered.
11. Admittedly, there was a money transaction in the month of April 1989 between the appellant/defendant and the 1st respondent/plaintiff. According to the 1st respondent/plaintiff the same was a loan transaction in which the plaintiff was the creditor and the defendant was the borrower. On the other hand, the appellant/defendant would contend that the transaction was not a loan transaction and in fact it was an agreement for the sale of the house property of the appellant/defendant and that the 1st respondent/plaintiff, who agreed to purchase the property for rupees 5= lakhs, paid an amount as advance and part consideration. Therefore, the first and foremost controversy between the parties is as to the nature of the transaction between them. The next controversy is regarding the actual amount paid by the 1st respondent/plaintiff to the appellant/defendant. According to the plaint averments the plaintiff paid a sum of Rs.4,00,000/-. Per contra, it is the contention of the appellant/defendant that only a sum of Rs.2,92,000/- was paid and a sum of Rs.1,00,000/- was retained by the plaintiff for the purchase of jewels for Janaki, daughter of the appellant herein/defendant. It is his further contention that no jewel was purchased and given to the daughter of the appellant herein/defendant by the 1st respondent/plaintiff and hence the said sum of Rs.1,00,000/- could not be taken as an amount paid to the appellant/defendant.
12. The next point in issue is regarding the alleged acknowledgement. The appellant/defendant did not deny in written statement that he made an acknowledgement in his letter dated 15.03.1991 to the 1st respondent/plaintiff. The said letter has been marked as Ex.A1. The appellant/defendant would contend that even assuming that the said letter contains an acknowledgment of liability, the same would not save the suit of the plaintiff from being barred by limitation, as the suit was not filed within three years from the said date. But the 1st respondent/plaintiff relies on yet another letter written by the appellant/defendant to one Ramamurthy, the son-in-law of the plaintiff containing acknowledgement of the liability. The same has been marked as Ex.A2. Apart from the said letter addressed to Ramamurthy, one more document, namely the reply notice sent by the appellant/defendant to the respondent/plaintiff on 17.10.1993 and marked as Ex.A5 is also relied on by the 1st respondent/plaintiff as acknowledgement of liability which would save the suit of the plaintiff from being barred by limitation. Therefore the points that arise for consideration in this appeal are:
1) Whether the suit is barred by limitation?
And
2) Whether the plaintiff is entitled to a decree for recovery of a sum of Rs.4,00,000/- with subsequent interest?
13. The plaintiff and the defendant are closely related. The defendant's daughter Janaki was given in marriage to the son of the plaintiff. As such the plaintiff is none other than the father-in-law of the daughter of the defendant. But, unfortunately the matrimonial bliss was a short lived one and within a couple of months after marriage, that too, when the said Janaki was in the family way, the couple had to part their ways. The relationship got strained further, as the said Janaki gave a complaint to the police alleging dowry harassment and her husband (son of the plaintiff) initiated judicial proceedings for dissolution of marriage. However, ultimately the said divorce petition, namely HMOP No.195/1993 instituted on the file of Sub-Court, Nagapattinam was dismissed as withdrawn. Under such circumstances, the plaintiff filed the suit for the recovery of the amount allegedly lent by him to the defendant. The above said background should be kept in mind for proper appreciation of the case of both parties.
14. According to the plaintiff's case, the defendant wanted the plaintiff to help him financially by advancing him a loan of Rs.4,00,000/- as the defendant wanted to arrange for the marriage of his son also and the plaintiff obliged him and lent him the above said sum because the marriage of Janaki, daughter of the defendant, with the son of the plaintiff had then been finalised and the plaintiff was the father-in-law designate of the said Janaki.
15. On the other hand, the defendant would contend that though he was not financially prepared to arrange for the marriage of his daughter Janaki, the plaintiff who came with the proposal to get Janaki married to the son of the plaintiff, came forward to give him the money needed for the said marriage on the understanding that the plaintiff would purchase the house of the defendant for a sum of Rs.5 = lakhs. The first and foremost contention of the defendant before the trial court happened to be that the transaction between the plaintiff and the defendant being one of agreement for sale, the suit instituted as a simple money suit was not maintainable. In this regard, reference can be made to the evidence adduced on either side. The plaintiff, who deposed as PW-1 was categorical in his assertion that he did not enter into any agreement or understanding with the defendant to purchase the house property of the defendant. On the other hand, the plaintiff submitted that he paid a sum of Rs.4,00,000/- as loan to the defendant and the defendant instead of repaying the said amount wanted the plaintiff to purchase the house property of the defendant which the plaintiff promptly declined and that the defendant falsely tried to set up a case as if the plaintiff had entered into an agreement for the purchase of the house property of the defendant and for that purpose alone the payment to the defendant was made.
16. The defendant who deposed as DW-1 would admit that there was no document evidencing the amount paid by the plaintiff to the defendant and that it was done on mutual trust and understanding. He would also admit that he wrote the letters addressed to the plaintiff and his son-in-law admitting that he received a sum of Rs.4,00,000/- from the plaintiff. However, he would add that he received a sum of Rs.2,92,000/- alone and in view of the promise made by the plaintiff to give jewels worth Rs.1,00,000/- to Janaki, he had made such an admission in the letters to the effect that the amount received by him was Rs.4,00,000/-. The other two witnesses examined on the side of the defendant, namely DW-2 and 3, have not deposed anything about the transaction between the plaintiff and the defendant. However, they have stated that one Janarthanam came forward to purchase the house property of the defendant for a sum of Rs.5,80,000/- and a sum of Rs.3,00,000/- was paid by him as advance. It was nothing but an attempt made by the defendant to show that only a sum of Rs.3,00,000/- was due to the plaintiff and that when the said amount was tendered, the plaintiff refused to accept the same. A close consideration of the evidence of DWs-1 to 3 in this regard, shows existence of a lot of contradictions, making the said contention improbable. DW-1 in his evidence would state that he entered into an agreement with one Santhabai, wife of Janarthanam for the sale of his house property for a sum of Rs.5,80,000/-. He would also state that on the date of agreement itself a sale deed was prepared but the sale transaction could not be completed as he was not able to get back the title deed from the plaintiff. According to the case of the defendant, the title deed had been given to the plaintiff pursuant to a mediation made in the police station. Neither the sale agreement nor the draft sale deed prepared pursuant to the agreement between the defendant and Santhabai, wife of Janarthanam has been produced. DW-1 has not stated anything regarding the actual amount he received from Santhabai, wife of Janarthanam.
17. On the other hand, DW-2 would state in his evidence that a sum of Rs.3,00,000/- was paid by Santhabai, wife of Janarthanam as advance and a voucher was passed for the same. The said voucher has not seen the light of the day.
18. The evidence of DW-3 was quite contra to the evidence of DW-2. He would state that on the date of finalization of the sale agreement, a sum of Rs.101/- alone was paid as advance and a further sum of Rs.3,00,000/- was paid subsequently. Though DW-3 during cross-examination, would state that in the voucher evidencing payment by Santhabai, wife of Janarthanam, a sum of Rs.3,61,000/- was noted as the amount paid and that he had attested the said voucher. He was also not able to state the date on which the said voucher was obtained. A copy of alleged mochalika signed by the parties pursuant to the mediation made in the police station in an enquiry conducted by the police on the complaint made by Janaki has been marked as Ex.B5. In the said document it has been stated that the defendant promised to pay back the amount borrowed by him from the plaintiff after selling his house. A similar mochalika signed by the defendant has also been marked as Ex.B4. Ex.B4 and B5 do not contain any recital to the effect that the amount was paid by the plaintiff as price for the purchase of the property or that there was any agreement between the plaintiff and the defendant for the sale of the said property to the plaintiff. On the other hand, it is obvious from the said documents that the defendant agreed having borrowed from the plaintiff and consented for leaving the title deed of his property with the plaintiff till he makes arrangement for payment of the amount due to the plaintiff after selling the property to any third party.
19. Furthermore, Ex.A1 and A2 are the letters admittedly written and sent by the defendant addressed to the plaintiff and one Ramamurthy, son-in-law of the plaintiff respectively. In both the letters the defendant has admitted having received a sum of Rs.4,00,000/- from the plaintiff. As per the contents of the said letters the defendant received a sum of Rs.3,00,000/- from the plaintiff for meeting the marriage expenses and a further sum of Rs.1,00,000/- for purchasing jewels for his daughter. No where in those letters it has been stated that a sum of Rs.1,00,000/- was retained by the plaintiff to purchase jewels for Janaki. On the other hand clear admission has been made in those documents to the effect that the defendant received a sum of Rs.1,00,000/- to meet the expenses of purchasing jewels for his daughter Janaki.
20. Ex.A3 is the legal notice sent by the plaintiff through his lawyer to the defendant. Clear assertion was made in the said notice that a sum of Rs.4,00,000/- was lent to the defendant in April 1989. Ex.A4 is the acknowledgement, Ex.A5 is the reply to the above said notice sent by the defendant himself with his signature. The allegation made in the notice that the defendant borrowed a sum of Rs.4,00,000/- from the plaintiff in April 1989 was not specifically denied in the reply notice. On the other hand he had expressed his willingness to make payment as demanded in the notice. The said willingness expressed in the vernacular language is extracted hereunder.
"ehDk; gzk; ju jahuhf cs;nsd;"
Another notice sent to the defendant by the plaintiff through his advocate dated 18.12.1993 is Ex.A6. Ex.B7 is the reply sent by the defendant with his signature for the said notice. Only in the said notice, the defendant has come forward with the plea now he has made in the written statement regarding the amount received. The court below, after evaluating the evidence adduced on both side, has come to a correct conclusion that the defendant borrowed a sum of Rs.4,00,000/- from the plaintiff and that the contention of the defendant as if he received only a sum of Rs.2,92,000/- could not be sustained. This court, being the appellate court and the final court for appeal on facts, also meticulously considered the evidences, both oral and documentary and upon such a consideration, concurs with the view expressed by the court below. This court finds no defect or infirmity with the above finding of the court below warranting interference with the same in this appeal. Therefore, this court comes to the conclusion that the plaintiff has proved his case of lending a sum of Rs.4,00,000/- to the defendant in the month of April 1989.
21. According to the plaintiff's case, the amount was lent in the month of April 1989. If there is no subsequent acknowledgement, then the period of limitation for filing the suit would have been over by the end of April 1992. As this suit has been filed only on 30.03.1994, in the absence of acknowledgment the suit would have been barred by limitation. There is no dispute over such a proposition. But in the instant case, the 1st respondent/plaintiff has relied on the plea of acknowledgement of liability and fresh start of limitation from the date of acknowledgement. Ex.A1 and A2 are the alleged acknowledgements relied on by the plaintiff. There is also no controversy regarding the proposition that an acknowledgement to be valid should be made before the expiry of the period of limitation.
Section 18 of the Limitation Act reads as follows:
"18. Effect of acknowledgment in writing - (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement 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 of liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872(1 of 1872), oral evidence of its contents shall not be received.
Explanation: For the purposes of this Section -
(a) an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, delivery, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right."
22. As per the language of the above said section, the acknowledgement should be in writing and signed by the person making the acknowledgement. So far as Ex.A1 letter is concerned, there is an admission by the defendant in the written statement as well as his evidence as DW-1 that the said letter was written by him to the plaintiff. It is not the case of the defendant that Ex.A1 would not amount to acknowledgement of the liability. On the other hand, it is the contention of the defendant that the said letter was dated 15.03.1991 and if the said letter containing acknowledgement is to give new start of the period of limitation, the suit should have been filed on or before 15.03.1994 and that the suit filed on 30.03.1994 is barred by limitation. Of course it is true that the suit would have been barred by limitation provided there is no subsequent acknowledgement. But, unfortunately for the defendant, there is another acknowledgement in writing made by him in the form of Ex.A2. Ex.A2 is a letter written by the defendant to one Ramamurthy, the son-in-law of the plaintiff. The said letter contains clear acknowledgement that the defendant borrowed a sum of Rs.4,00,000/- from the plaintiff. Of course the said letter was not addressed to the creditor, namely the plaintiff. But it is not necessary that the acknowledgement of liability should be addressed to the creditor himself. The section itself contains following explanation:
"The acknowledgement need not be addressed to the creditor or the person having right to institute the suit or to make the application in respect of the same property or right or communicated to him". It may be in the form of recital in document executed even in favour of a stranger. The conditions required for a valid acknowledgement have been listed in the judgement of a division bench of this court made in V.S.Manickasundaram Vs. V.S.Ramalinga Gounder & Co. by partner, Palanivelu, Park Road, Erode and others reported in 2004(2)CTC 624. They are as follows:
"(a) It must be an acknowledgement or affirming admission of an accepting liability. But the acknowledgement need not directly refer to the liability sought to be enforced in the suit.
(b) It must be made by the person under the liability. The liability must relate to some debt or other obligation or to some property or right.
(c) The liability must be subsisting on the date of the acknowledgement; it must not have become barred, or satisfied, or destroyed.
(d) The acknowledgement must be made before the expiry of the period prescribed for a suit or application in respect of such property or right.
(e) The acknowledgement must be in writing.
(f) The acknowledgement must be signed.
(g) The signature must be of the party against whom such property or right is claimed, or of some person through whom he derives title or liability.
(h) The acknowledgement must not be vague or ambiguous.
(i) The surrounding circumstances are also relevant and can be taken into consideration in construing the words in which an acknowledgement is said to have been expressed.
23. In the instant case, admittedly, Ex.A2 was written by the defendant to Ramamurthy, son-in-law of the plaintiff. But, it does not contain his signature. Therefore, the same shall not amount to a valid ackowledgement as per
Section 18 of Limitation Act which says that the acknowledgment shall be in writing and signed by the person making acknowledgment of liability.
24. However, even if the letter addressed to Ramamurthy, the son-in-law of the plaintiff (marked as Ex.A2) will not amount to a proper acknowledgment of liability under
Section 18 of the Limitation Act, there is yet another document evidencing that the defendant has made an acknowledgment of liability on 17.10.1993 i.e well within three years from the date of Ex.A1. The said document is none other than the reply notice sent by the defendant with his signature for Ex.A3 notice. In Ex.A5-reply notice, the defendant has clearly admitted and acknowledged his liability stating that he was prepared to make payment to the plaintiff. In Ex.A3 notice it was clearly averred that the defendant had borrowed a sum of Rs.4,00,000/-. The amount was not disputed in the reply, namely Ex.A5. On the other hand, he expressed his willingness to make payment as demanded in the notice. However, he had also made a request that his daughter should be allowed to live with her husband, namely the son of the plaintiff. In the light of the above said document, this court comes to the conclusion that there is a clear acknowledgment of liability of the defendant towards the plaintiff and that the same has saved the limitation and made the suit filed the plaintiff well within the period of limitation. The court below, on proper appreciation of evidence, has come to a correct conclusion that the suit is not barred by limitation. The well considered finding of the court below in this regard, deserves confirmation. Accordingly, the same is confirmed.
25. The next contention of the defendant is that as there was no contract for payment of interest, the court below should not have awarded interest. Of course, the plaintiff has claimed interest from the date of borrowal at the rate of 9% per annum. But simply because there is no contract for payment of interest it does not mean that the creditor cannot claim interest and that the court does not have power to award interest. Payment of interest in such cases shall be governed by the provisions of the Interest Act and reasonable interest can be awarded. The plaintiff has claimed only 9% interest from the date of transaction. However, taking into account the relationship of the parties at the time of transaction, the court below has chosen to award interest only from the date of demand made by the plaintiff for repayment of the amount lent to the defendant. The said course adopted by the court below cannot be said to be against law or unreasonable. The court below has chosen to award interest at the rate of 9% per annum from the date on which the plaintiff issued a notice to the defendant demanding payment of amount i.e. 21.09.1993. The court below also restricted the said rate of interest up to the date of decree alone and allowed 6% subsequent interest from the date of decree till realisation in tune with the tenor of Section 34 of Civil Procedure Code. This court finds nothing wrong in the procedure adopted by the court below. The said fining also deserves to be confirmed.
26. For all the reasons stated above, this court comes to the conclusion that there is no merit in the appeal preferred against the judgment and decree of the court below. There is no scope, whatsoever, to interfere with the well considered judgment of the court below and the appeal deserves to be dismissed confirming the decree passed by the trial court.
27. In the result, the judgment and decree of the court below dated 08.11.1996 is confirmed and the appeal is dismissed with costs. Consequently, connected miscellaneous petition is also closed.
20.04.2009 Index : Yes Internet : Yes asr To The Principal Subordinate Judge, Nagapattinam P.R.SHIVAKUMAR, J.
asr/ Judgment in A.S.No.383 of 1997 Dated : 20.04.2009