Nigam, J. - (1.) THE plaintiff Daulatram Ruchiram Chablani filed suit No. 19 of 1951 in the Court of Civil Judge, Malihabad, Lucknow on 13th February, 1951 against Nawin Chandra Paul Misra claiming a decree for Rs. 12,170. An amendment of the plaint was allowed by the trial Court on 26-10-1951.
(2.) THE plaintiff alleges (in his amended plaint) that in the first week of January 1947 the defendant began borrowing money from the plaintiff. On 1st April, 1950 all advances were added up and after taking more cash the defendant executed a pronote and a receipt for Rs. 11,280 promising to pay the amount with interest at 9 per cent. The plaintiff gave details of the sums advanced. One item was a sum of Rs. 7,000 paid in cash in the first week of January 1947. The plaintiff further pleaded that if the pronote was not admissible in evidence, the plaintiff was entitled to a decree on the basis of the original advances which had been acknowledged four times as mentioned in the plaint, on one occasion by the receipt dated 1-4-1948. The plaintiff claimed a decree for this sum of Rs. 11,280 principal amount advanced and Rs. 890 interest accrued. The cause of action was stated to have accrued on 1-4-1950 (the advance of the loan, promise of interest and execution of receipt and pronote). The plaintiff thus based his claim on a fresh contract on 1 4-1950 on which date "more cash" had been advanced but in the alternative based his claim on the original advance of Rs 7,000 (with which alone we are concerned in this reference) acknowledged in the receipt dated 1-4-1948 (which is the only acknowledgment relied upon before us). In his final written-statement dated 27th November. 195] the defendant denied the plaint case and suggested that the defendant had not taken any loan from the plaintiff. The learned Civil Judge framed five issues, three on 23-7-1951 and two on 4-12-1951. In his statement, the plaintiff stated that on 1-4-1948 the defendant had paid Rs. 700 as interest on the previous loan and had executed receipt for Rs. 7000 (Ext. 18) in lieu of the principal amount previously advanced. P. W. 5 Soloman Benjamin Elias says that no cash was paid in his presence when Ext. 18 was executed. The defendant denied having executed Ext. 18. The learned Civil Tudge held that the payments alleged by the plaintiff were proved and decreed the plaintiffs claim. The defendant filed this appeal. When the appeal came up for hearing before a Bench of this Court, two issues were remitted to the trial Court for findings. These issues are:-- "1 (a) Assuming that the amount of seven thousand rupees was advanced as a loan in January, 1947, as alleged by the plaintiff is the plaintiff's claim in respect of this sum of seven thousand rupees within limitation in view of the allegations contained in paragraph 2 (a) of the plaint? (b) Whether Ext. 10 the letter dated the 16th of September, 1947, Ext. 18 the receipt dated the 1st of April, 1948 and Ext. 2 the receipt dated the 1st of April, 1950 constitute a valid acknowledgment of the subsisting liability in respect of the debt of seven thousand rupees due from the defendant to the plaintiff? (8) We are of opinion that it would perhaps have been better if the Bench had decided all questions of fact relating to receipt Ext. 18 namely, whether Ext. 18 was proved to have been executed by the defendant, whether any money had been paid by either party to the other at the time Ex. 18 was executed, whether in fact any sum of rupees seven thousand had been lent by the plaintiff to defendant in January 1947 and whether the liability to repay this debt still subsisted on 1st April, 1948, rather than entered upon the question of law on assumptions, which on scrutiny may not be found to be justified. In his findings, the learned Civil Judge answered the first issue remitted in the affirmative. He also held that receipt Ext. 18 alone constituted a valid acknowledgment of the subsisting liability in respect of the debt of Rupees 7,000 due from the defendant to the plaintiff. It appears that the learned Civil Tudge assumed that Rs. 7000 were advanced by the plaintiff to the defendant in January 1947, that this liability subsisted on 1st April, 1948 and that Ext. 18 had been executed bv the defendant. When the appeal again came up for hearing before the Bench, the Bench without proceeding to decide the questions of fact, made this reference to a larger Bench in view of the alleged inconsistency between Govind Singh v. Bijay Bahadur, AIR 1929 All 980 and lagan Nath v. Kunwar Girwar Singh, AIR 1930 All 368 on the one hand and Ghulam Murtaza v. Mt. Fasiunnissa Bibi, AIR 1935 All 129 on the other. That is how the matter is before us. The question referred to us is:-- "Assuming that the amount of Rs. 7,000 was advanced as a loan in January 1947 as alleged by the plaintiff, is the plaintiff's claim in respect of the said sum of Rs. 7,000 within limitation on the ground that Ext. 18 constitutes a valid acknowledgment of a subsisting liability in respect of the said amount of Rs. 7,000?"
(3.) WE are not concerned with the question whether Ext. 18 operates as a novation of contract i. e., as evidence of a fresh contract between the parties. It is neither party's casa that the old debt was wiped off and a fresh. loan was advanced. It is important to bear in mind that the plaintiffs case is that on 1-4- 1948, a sum of Rupees seven hundred was paid to him and Ext. 18 was executed in lieu of the principal amount originally advanced in January 1947. That aspect of the matter has not been referred to us and no doubt will be considered by the Bench when the appeal is again placed before it. The Bench may also have to determine the questions of fact mentioned by us earlier which have been assumed to exist in the issues remitted to the trial Court and in the reference made to us. In answering the question put to us, we will confine ourselves to the bara question referred to us leaving all other questions to the Bench hearing the appeal. In the reference we have heard Mr. Dhaon and Mr. Dwivedi. In AIR 1929 All 980, the plaintiff had sued on the basis of a promissory note. The plaint case was not inconsistent with the case that the promissory note was executed in lieu of an old debt. The promissory note was inadmissible in evidence. Niamatullah J., held: "The plaintiff-applicant is entitled to succeed as regards the principal debt at least on the strength of the acknowledgment contained in the receipt dated 6th January, 1925". The receipt was held to be "a clear acknowledgment of the defendant being a debtor to the plaintiff to the extent of Rs. 349 under a pro- note dated 6th January, 1925...... "Niama- tulah J., was also of the opinion that a clear and unconditional acknowledgment can itself be the foundation of an action and relied on Maniram v. Seth Rup Chand, (1906) 33 Ind App 165. Sulaiman J., (as he then was) expressed his views thus:-- "I also think that a receipt is ordinarily an acknowledgment of the receipt of consideration, and unless its contents suggest otherwise it does not imply a promise to pay or even an acknowledgment of an existing liability to pay.... But the recitals in the receipt may suggest that that payment of money was oy way of loan and that circumstance would necessarily imply a promise to repay it. In such cases the receipt alone with other oral evidence may be sufficient proof of a debt which is recoverable by suit". ;