- (1.)The present appeal arises from a suit filed by the plaintiff for recovery of a sum of Rs. 7,000 due upon a 'khata' dated I5-12-1934, for Rs. 9,000 signed by two persons Motibhai Ishwar-bhai and Jiwabliai Javerbhai. Both the executants specifically say in the 'khata' that they would pay the amount of Rs. 9,000 on demand. The 'khata' obviously, therefore, is a promissory note. It is not necessary to state all the defences which were taken on behalf of the representatives of Motibhai Ishwar-bhai and Jiwabhai Javerbhai, for the reason that the only question in this appeal is one of limitation. It is contended on behalf of the defendants that the suit was barred by limitation, The suit was upon a promissory note dated 15-12-1934, and was actually filed on 19-10-1946. In order to bring the suit within limitation, the plaintiff relied upon a part payment dated 22-10-1940, acknowledged in the handwriting of Kantilal Vilhal-bhai, the grandson of Jiwabhai. The part payment is endorsed upon the promissory note itself in the hand of Kantilal Vithalbhai. The defendants disputed this endorsement, but the learned trial Judge has found the endorsement proved. The defendants contended even so that this endorsement did not serve to save limitation, because the plaintiff's suit upon the promissory note was barred by limitation before the endorsement was made by Kantilal Vithalbhai. It appears that when Act No. 1 of 1987 Section Y. (Mudat Nibandh No. 1 of 1987) of the former Baroda State was enacted, the rule of limitation in regard to promissory notes was contained in Article 63, and the period was, as in what was formerly British India, three years. The Act contained a section at that time, No. 6, Sub-section (1) of which provided an enlarged period of limitation of six years, where the suit was filed upon a writing or a document and was a suit to which certain articles, including Article 47, which was for a suit for money lent, applied, but at that time Article 63 was not included in the articles enumerated in Section 6 (1). The Barocla Limitation Act was, however, amended from time to time. It was amended for the first time by Act No. 47 of 1934, which came into force on 8-111934. It was amended a second time by Act No. 3 of 1936, which came into force on 30-1-1936. It is not in dispute, however, that Article 63 of the Act was not included among the articles enumerated in Section 6(1) by either of these amendments. It was included among those articles by Act No. 21 of 1939, which came into force on 255- 1939. It is the contention of the defendants that before this Act came into force, the period of limitation for suits upon promissory notes was three years, with the result that there being no acknowledgment before 25-5-1939, when the Act No. 21 of 1939 came into force, the plaintiff's suit upon Ex. 39 regarded as a promissory note was barred by time, and his remedy was not revived by that Act which was not retrospective.
(2.)On the other hand, it is the contention of the plaintiff that the plaintiff's suit is not a suit upon a promissory note. The plaintiff's suit is a suit for money lent, which will be governed by Article 47, or a suit on an account stated, which would be governed by Article 54. Now, Article 54 also was not included among the articles enumerated in Section 6(1) when the Act came into force originally. It was included among those articles for the first time by Act No. 3 of 1936 which came into force on 30-1-1936. It is contended on behalf of the plaintiff that the plaintiff's suit was not barred by time on that date if it is a suit on an account stated. So in any case the period of limitation for the plaintiff's suit, regarded as a suit for an account stated, was six years, and inasmuch as on 22-10-1940, Kantilal Vithalbhai, the grandson of Jiwabhai made payment of a sum of Rs. 3,000 before the period of limitation was over, a fresh starting point of limitation was provided by the payment by Kantilal on that date, and the plaintiff's suit was consequently within time.
(3.)In the alternative, it is contended that even if the plaintiff's suit must be regarded as a suit upon a promissory note, the Limitation Act which applies to the suit is the Act as it was amended by Act No. 21 of 1939. The period of limitation for such a suit is consequently six years. If within a period of six years from the execution of the promissory note there happens to be executed an endorsement of a part payment, it serves to save the limitation and affords a fresh period of limitation, and it does not make any difference if upon the date upon which Act No. 21 of 1939 came into force the plaintiff's suit regarded as a suit upon a promissory note was barred by time.