JAGANNATH PRASAD SINGH DEO Vs. BIRBAL PANSARI
HIGH COURT OF ORISSA
Jagannath Prasad Singh Deo
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Panigrahi, J. -
(1.) THIS is a Defendants appeal against a decrees for money in a suit for enforcing a contract. The Plaintiff's case is that the Defendant had borrowed, on a handnote dated 12 -10 -41, a sum of Rs. 9,000/ - and had made payments from time to time aggregating to Rs. 7,500/ -. On 26 -9 -1945, the Defendant sent a note Ext. 3 -(a) to the Plaintiff which is relied on by the Plaintiff as a fresh contract to pay the debt on the assumption that the claim under the handnote of 12 -10 -41 is barred by limitation. The handnote itself is not available as the Plaintiff says that it was lost during the partition disputes between himself and his brothers. The suit is, therefore, laid on the foot of Ext. 3(a) in which the Defendant is alleged to have promised to pay the debt. The learned Subordinate Judge found that Ext. 3(a) purports to be a contract within the meaning of Section 25 of the Indian Contract Act to pay a barred debt and is therefore enforceable. Section 25 of the Contract, says:
An agreement made without consideration is void unless
(3) It is a promise made in writing Bond signed by the persons to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part of which the creditor might have enforced payment but for law for the limitation of suits.
In any of these cases, such an agreement is a contract.
(2.) EXT . 3 -(a) i an endorsement on a note signed by the Dewan of the Defendant to 'the Zamindar (the Defendant). That note says:
Birbal (Plaintiff) is anxious to go back after finishing his business with the Zamindar sahib.
The Zamindar replies to this note as follows:
Ascertain the amount due. The principal was Rs. 9,000/ -, on handnote. About Rs. 5,000/ - has been paid. Take accounts of the amount due. I am getting the money. That man has not returned. He will return within four or five days. I shall pay the dues immediately after he comes....
The note contains several other recitals about the payment but it is unnecessary to refer to them. It would appear that the Defendant knew what he was writing about. He makes a reference to the handnote, to the principal amount borrowed under the handnote, the amounts paid from time to time towards the discharge of the handnote, and asks his Dewan to calculate the amount then due. He also unambiguously makes a promise to pay. Learned Counsel for the Appellant relied on a decision reported in, I.L.R. 40 Mad 31, in which it was held that an arbitration agreement by which the parties agreed to have their liabilities ascertained did not amount to a 'debt' within the meaning of Clause (3) of Section 25 of the Contract Act. That case however is easily distinguishable on the facts. In the instant case, Ext. 3(a) is clear and explicit and there is no ambiguity at all in it as to what the Defendant was promising to pay. We are accordingly satisfied that there has been contract to pay a debt to the Plaintiff, which the Plaintiff could have enforced, but for the bar of limitation and that the Plaintiff is entitled to recover the amount due under the promissory note.
The judgment of the learned Subordinate Judge is therefore affirmed and this appeal is dismissed with costs. The cross -appeal filed by the Plaintiff relating to his claim for higher interest is also dismissed with costs.
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