Decided on August 07,1944

Kumar Krishna Mitter And Anr. Respondents


King, J. - (1.) THE appellant here is the endorsee of a document, Ex. A, and at the same time the assignee of all rights under the original cause of action under that document. It is common ground that the appellant's assignor and the respondent had dealings in mica in 1930. The respondent purchased mica From the appellant's predecessor and was in the habit of selling this mica in England and sending cheques to the appellant's predecessor to pay for it. Of one of these cheques he stopped payment. Subsequently in 1933 Ex. A was executed in which the respondent undertook to pay to the appellant's predecessor after two years the sum of Rs. 12,600 with a certain interest "after deductions as would be agreed upon." It was the claim based upon this document with its original cause of action that was assigned to the appellant in 1938. The learned District Judge has dismissed the suit and the appellant now appeals. Two main difficulties stand in the way of the appellant and are the reasons why the suit was dismissed. The first is that no suit will lie on the terms of Ex. A itself because they embody an agreement which in the words of Section 29, Contract Act, is one, the meaning of which is not certain or capable of being made certain. The second reason is that if the appellant falls back upon the original cause of action in 1930 although he can rely upon Ex. A as an acknowledgment of indebtedness given by the respondent's predecessor in 1933 that will afford him only a further three years in which to file his suit, and the suit being filed in 1938 is barred by limitation.
(2.) IT is contended on the first question that Section 29, Contrast Act, does not apply and that it will be possible for the Court after scrutinizing the various registered notices and other evidence in the case to give some intelligible meaning to the expression "after deductions as would be agreed upon." It seems to us however that the Court is not called upon to decide between conflicting claims put in by both sides as to the meaning of a document. Section 29 contemplates that that meaning shall be clear on the face of it. The very first illustration given in the section is of an agreement by A to sell to B a hundred tons of oil. That agreement is held in the illustration to be void for uncertainty, though it might be argued that it was open both to A and B to go into the witness box and give evidence from which it would not be beyond the power of the Court to arrive at the actual truth regarding an agreement which has been so vaguely expressed. It has been clear from the arguments before us that there are two very obviously different views in regard to the interpretation of the final few words of Ex. A, It has been claimed by Mr. Venkatarama Sastriar on behalf," of his client that the real meaning of the phrase is that if in fact there had been no agreement regarding a reduction at any time before suit, and if the money had become payable the full amount of Rs. 12,600 could be claimed. There is also another and, in our opinion, more plausible interpretation that Rs. 12,600 was intended to be the maximum' beyond which in no circumstances could the appellant's predecessor claim, and that some deduction was contemplated by both parties as being certain. However, the parties have expressed this matter in a language with which they were not very familiar in so vague a fashion that in our opinion there can be no doubt that the learned Judge was right in holding that the suit based upon the terms "of this document must fail by reason of Section 29, Contract Act. The next question is whether the plaintiff can sue upon the original cause of action, and this is a question merely of limitation. It is argued that because in the acknowledgment which the respondent's predecessor gave in 1933 there is also a clear promise to pay and that that payment is deferred until a further period of two years, therefore no suit should have been filed even upon the original cause of action by the appellant's predecessor between 1933 and 1935. In support of this contention we were referred to the judgment of Lord Wrenbury in Spencer v. Hemmerde, (1922) 2 A.C. 507:
(3.) Thus if he writes, 'I acknowledge the debt and will pay it you six months hence' the implied promise which would be a promise to pay forthwith is superseded by the express promise to 'pay six months hence,' and an action cannot be brought until the six months have expired. Whatever may be the case in England, the question of limitation has been codified in this country in the Limitation Act, and it seems to us that an acknowledgment can be used to extend the period of limitation only to the extent which the Limitation Act itself permits. The language of Section 19 of the Act is clear that where there is an acknowledgment of liability he result which follows is that the fresh period of limitation shall be computed from the time when the acknowledgment was so signed. There can be no doubt we think that the learned District Judge is right also in holding that any suit based upon the original cause of action in 1930 is barred by limitation. In the result this appeal must fail and is dismissed with costs.;

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