ORDER
S.B. Majage, J.
1. A short but an important question for consideration is; “whether an endorsement on pronote, showing part payment and extending the period of limitation, could be construed as “promise” under Section 25(3) of the Contract Act?”
2. Facts in brief, which gave raise to the question, are; Respondent Narayanachari, who was the plaintiff in O.S.No. 201/ 00 before the Court of Civil Judge(Sr.Dn) & JMFC at Bhadravathi, brought suit against one Adivelu (now deceased) stating that Adivelu borrowed a sum of Rs. 26,000/- on 20.11.91 and also Rs. 25,000/- on 15.12.91 under two different pronotes agreeing to repay the same with interest at the rate of Rs. 18% p.a. and in connection with first pronote, Adivelu made part payments of Rs. 3,500/- and Rs. 3,000 on 8.11.94 and 18.11.97 respectively and, with regard to second pronote dated 15.12.91, he made part payment of Rs. 3,500/- on 8.11.94 and Rs. 4,000/- on 28.11.97 but not thereafter. As such, calculating the amount due under the said two pronotes, the plaintiff claimed Rs. 1,47,978/- from Adivelu showing that cause of action arose on 20.11.91, 15.12.91, 8,11.94, 18.11.97 and 28.11.97. On his appearance before the trial Court, Adivelu filed I.A.5 under Order 7 Rule 11 of the CPC requesting to reject the plaint as barred by time. After hearing, the trial Court dismissed that I.A. by the impugned Order. Hence, the L.Rs of the deceased defendant Adivelu are before this Court as petitioners.
3. It was vehemently contended for them that even if the dates of alleged payments stated by the plaintiff are considered, the suit claim was barred by time on the date of suit and as such the endorsements made on the two pronotes on 18.11.97 and 28.11.97 respectively did not extend the period of limitation of time barred claims. On the other hand, the learned Counsel for the plaintiff supported the impugned Order. Perused the records carefully.
4. In the present case, the endorsements of the defendant on the pronotes contain acknowledgment and part payments made in connection with his liability namely, the debt due to the plaintiff. If they had been made before the expiry of the period of limitation provided under the Limitation Act, they would have certainly extended the period of limitation in view of Sections 18 and 19 of that Act as it is trite that to attract Section 18 and 19 of the Limitation Act, the acknowledgment or part payment made should be earlier to the expiry of the period of limitation provided under that Act. But endorsement/writing relied on by the plaintiff, containing acknowledgment with part payment, was made after the expiry of the period of limitation. Hence, the endorsement showing acknowledgment and part payment does not come to the aid of the plaintiff to extend the limitation period under Section 18 or 19 of that Act. Still, let me consider whether the acknowledgment and part payment made by the defendant could be of any help to the plaintiff or not.
5. Acknowledgment of liability is nothing but an admission of the truth of one’s own liability. It is well settled that an unqualified, unequivocal and unconditional acknowledgment of a debt is a clear admission of the liability to pay it. Such an admission may be in any form and may be ‘express’ or ‘implied’, as held by the Supreme Court in the case of SHAPOOR FREEDOM MAZDA v. DURGA PRASAD CHAMARIA AND ORS., . But, whatever may be the form, regard must be had to the meaning of the writer by judging the acknowledgment as a whole and also such surrounding circumstances as the Court can take into consideration in construing the acknowledgment rather than to the literal meaning of the words used in it. And while doing so, such acknowledgment requires to be construed liberally, as held in the case of Shapoor Freedom Mazda (Supra).
6. An acknowledgment under Section 18 of the limitation Act and a promise under Section 25(3) of the Contract Act are required to be in writing and signed by the debtor or his authorised agent and both have the effect of giving fresh start of limitation. But, there is a distinction between the two. While an acknowledgment under Section 18 of the Limitation Act must necessarily be made before the expiry of the period of Limitation, a promise under Clause 3 of Section 25 of the Contract Act is made after the expiry of the period of limitation. Where a promise falls under Section 25(3) of the Contract Act, it constitutes a valid agreement for the purpose of suing, whether or not there is a fresh consideration for the promise and the debt covered thereby is within the limitation.
7. Further, whenever an acknowledgment is coupled with an agreement to pay interest, it is not regarded as a mere acknowledgment but an agreement importing a promise to pay within the meaning of Section 25(3) of the Act. Similarly, where an acknowledgment contains a clear promise to pay, such as fixing a date for payment and so on, such an acknowledgment amounts to a ‘promise’ to pay. So also, where the debtor by a letter proposes to pay a time barred debt in monthly installments and pays some of the installments, the acceptance of the installment amounts to acceptance of the proposal by the creditor and the proposal is converted into a ‘promise’.
8. Like acknowledgment, part payment could be regarded as equivalent to admission of a debt. So, in the facts and circumstances of the case, the words used in an acknowledgment accompanied by part payment require to be construed to determine whether there is any evidence showing a determination to pay debt and amounts to a ‘promise’ to pay it or not.
9. In the case on hand, there is not only an acknowledgment, there is even part payment made by the defendant and accepted by the plaintiff. That apart, there is even a recital in the endorsement/ writing containing acknowledgment with part payment that the time (limitation) is also continued/extended. It is true that a promise never to plead limitation is illegal. But, where the debt has already matured, a promise not to plead limitation may properly be taken or interpreted to mean a promise to pay the debt, extending the statutory period from the time the promise is made.
10. Now, reference can be had to Section 25(3) of the Contract Act. It reads as follows:
“25. Agreement without consideration void, unless-An agreement made without consideration is void, unless-
1)XXXXXXX
2) X X X X X X
3) is a promise to pay a debt barred by limitation law.- It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part of a debt of which the creditor might have enforced payment but for the law for the limitation of suits”.
The requirement of the said Sections are: (i) there must be a promise, (ii) Promise must be in writing, (iii) under the signature of the promiser or his authorised agent, (iv) to pay whole or in part time barred debt.
11. There is no dispute that the second and third requirements referred to above are present in the case on hand. But, the dispute is, whether or not, first and fourth requirements namely, whether there is a ‘promise’ to pay whole or in part the time barred debt and whether this could be construed as ‘promise’ made under Section 25(3) of the Act or not, is the point for consideration.
12. Section 2(b) defines the term ‘promise’ as under:
“when the person whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise”.
13. According to Section 9 of the Contract Act, where the proposal or acceptance of any promise is made in words, the promise is said to be “express” and where such proposal or acceptance is made otherwise, it is “implied promise”. Thus, a promise could be “express” or “implied”.
14. Since, in the present case, the defendant, by endorsement/ writing, has acknowledged his liability under the pronotes, made part payment and continued or extended the period (limitation) to pay the amount, what requires to be considered in the facts and circumstances of the case is, whether that endorsement on the pronotes could be considered or taken as ‘promise’ or not and, for this purpose, the parties will have to go for trial. In other words, based on the plaint averments only, without ascertaining the real intention of the parties in the facts and circumstances, it cannot be held whether the recital in the endorsements amounts to a ‘promise’ or not.
15. I am well aware of a decision in the case of TULSIRAM v. M. S. SAMESINGH, , where an endorsement on the pronote did not contain any word expressing any promise to pay, Delhi High Court has held that such an endorsement is not a ‘promise’. According to that High Court, in Order to constitute promise within the meaning of Section 25(3) of the Act, promise to pay must be an ‘express promise’, indicating that in writing itself to show that the writer agreed to pay the debt though barred by time. In other words, according to it, to attract said Clause, promise must be an ‘express promise’. In some other decisions also, similar view has been taken.
16. But, when the word ‘promise’, defined in Section 2(b) besides Section 9 of the Act are kept in mind with the decision of the Supreme Court in the case of Shapoor Freedom Mazda (supra) wherein it is held that an admission could be ‘express’ or ‘implied’, ‘promise’ covered by Section 25(3) of the Act, need not be ‘express’. If the legislature had intended that such promise should be an ‘express promise’ only, it would have indicated so but the word ‘express’ is not found in Section 25(3) of the Act. So, it would not be proper to read so and restrict the scope of Section 25(3) of the Act to “express promise” only. In the above view, I do not agree that the view taken by the Delhi High Court in the case of Tulsiram (supra) and also of the Madras High Court in the case of N. E. ETHIRAJULU NAIDU v. K. R. CHINNAKRISHNAN CHETTIYAR, .
17. In the case on hand, not only there is acknowledgment, there is even part payment accepted by the plaintiff besides recital extending the period (limitation), though all this was after the expiry of the limitation period. It is a settled law that promise to pay time barred debt is also a valid consideration. So, whether the facts and circumstances show a ‘promise’ attracting Section 25(3) of the Act or not could be decided only after evidence is adduced by the parties at the trial and not earlier to that even before written statement is filed. In view of the above, there is no error of jurisdiction or illegality or perversity in the impugned Order to interfere at this stage.
In the result, the petition is rejected.
