Buckland, J - (1.)This is a suit to recover the sum of Rs. 6,895 for principal and interest upon a time-barred promissory note. On 22 June, 1927 the plaintiff lent Rs. 5,000 to the defendant who by his promissory note in the usual form promised to pay that sum with interest at 9 per cent per annum to one S.C. Dutt, the plaintiff's brother, who endorsed the note over to the plaintiff. On l0 January 1931 after the promissory note had become time-barred defendant wrote to the plaintiff a letter in the following terms: My dear Kelu, I have been expecting you for some time, I am quite willing to renew the note come and see me with it either tomorrow evening or on Monday, Phone me beforehand. Yours sincerely, (Sd). R.C. Sen.
(2.)The only question that arises in this case is whether the suit is barred by limitation. To determine this it has to bo considered not whether this letter is an acknowledgment in writing within the meaning of Section 19, Limitation Act, for such an acknowledgment must be made before the expiration of the period of time prescribed for a suit but whether as has been submitted on behalf of the plaintiff there was a promise to pay the debt made without consideration but nevertheless valid, by virtue of Section 25, Sub-section (3), Contract Act. By that section it is provided that an agreement made without consideration is void unless it is a promise made in writing and signed by the person to be charged therewith to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. Mr. Pugh on behalf of the plaintiff has drawn my attention to Spencer v. Hemmerde (1922) 2 AC 507 where the English law on the subject of acknowledgments sufficient to take a case out of the statute of limitations was discussed at length. For reasons which will appear it suffices to say with the utmost brevity that the rule applied in that case is: if there is an acknowledgment in writing which satisfies the Act (9 Geo. 4, C. 14) there arises by implication of law a promise by the debtor to pay the debt (Per Lord Wrenbury at p. 537).
(3.)Such acknowledgment may be made either before or after the debt has become time- barred and consequently though it may be that the authority cited would be of assistance in considering the sufficiency of an acknowledgment under Section 19, different considerations arise in determining whether or not there was a promise within the meaning of Section 25(3), Contract Act. I have been referred to the decisions of other Indian High Courts for the purpose of establishing the proposition that no such promise may be inferred from a mere acknowledgment a point on which I am informed there is no reported decision by this Court. In Ganga Prasad V/s. Ram Dayal (1901) 23 All 502 the learned Judges observed with reference to cases cited in their judgment: Thus it seems that there is a consensus of opinion that a mere acknowledgment does not amount to a new contract. In all these cases the question for decision is really one of limitation, but if an acknowledgment does not amount to a new contract for the purpose of giving a fresh period of limitation it does not amount to a contract which can be sued upon. No doubt, as pointed out in the Bombay case in England an acknowledgment, if unconditional, is held to be sufficient evidence of a new contract which can be sued upon but there no difficulty arises with reference to the law of limitation because an unconditional acknowledgment takes the case out of the statute of limitation whether it is made before or after the period of limitation expires. In India it is otherwise. An acknowledgment in writing signed by a debtor provides a fresh period of limitation only if it is made before the period of limitation expires. After the period expires nothing short of a fresh contract will revive the debt and provide a fresh period of limitation.