JUDGMENT
Arnold White, C.J.
1. In this case : the plaintiff sued the defendants for a certain sum of money. He instituted his suit in 1909. He sued defendants Nos. 1 to 3 in a representative capacity as the legal representatives of a deceased person. He sued defendants Nos. 4 to 6 also in a representative capacity. He sued defendant No. 7 in his personal capacity alleging him to be a partner in the firm with which the plaintiff had had transactions. In February 1912 the plaintiff applied for leave to amend his plaint. The amendment he asked for was that the claim against defendants No. 1 to 3 should be made as against them not in their representative, but in their personal capacity as partners. The learned Judge gave leave to amend on certain terms. The exact words of his order after giving leave to amend are ” written statements of all the defendants to be filed before the 20th March….defendants to be at liberty to raise all defences available to the amended plaint as if the plaint had been filed this day “. It was argued on behalf of the plaintiffs (the appellants) that Section 22 of the Limitation Act did not apply to defendants Nos. 1 to 3 since they were not new defendants within the meaning of that Section It seems to me it is not necessary to consider that question, because assuming that they were not new defendants within the meaning of the section, under the express terms of the order under which leave to amend was given to the plaintiff, all the defendants were to be at liberty to raise all the defences to the amended plaint as if the plaint had been filed in February 1912.
2. Then we have to consider whether there has been an acknowledgment of liability sufficient to prevent the operation of the law of limitation within the meaning of ‘S. 19 of the Limitation Act. It is true, as Mr. Devadoss on behalf of the appellant has pointed out, that all that is necessary is an acknowledgment of liability and that a promise to pay is not necessary as an acknowledgment of liability and that a promise to pay is not necessary. We have to see is there any acknowledgment ? An acknowledgment in view of the order of the learned Judge, when he gave leave to amend, in order to be available to the plaintiff, must be within three years prior to 1912. Mr. Devadoss has argued that we can extract from certain paragraphs in the written statements of these defendants an acknowledgment sufficient for the purpose of the section; as the written statement was put in, in 1909, if an acknowledgment can be so extracted, that is sufficient to prevent the operation of the statute. Paragraphs 10 and 11 of the written statement relate to the same matter, and they run thus:
10. This defendant states that in consequence of the loss sustained by the defendant in his business he entered into a composition with all his creditors inclusive of the plaintiff’s firm and that on or about 4th March 1907 it was agreed at Sikkal between this defendant and the plaintiff’s firm that the plaintiffs firm should receive from this defendant 25 per cent, of their dues in full satisfaction of all their claims against defendant, and the plaintiff’s firm agreed to receive the said sum in full satisfaction of all their claims as aforesaid and exonerate this defendant from all liability in respect thereof.
11. This defendant was ever ready willing and prepared to pay to this plaintiff 25 per cent, of the amount due to the plaintiff as aforesaid, but the plaintiff has made default in receiving the said amount from this defendant and exonerating him from all liabilities as aforesaid .
3. These statements in the written statement are no good to the plaintiff as evidence of something which may have happened in 1907 because that would be more than three years before the date, which has to be taken now as the date when the suit was instituted. What we have to see is, are these statements in the pleading an acknowledgment of liability sufficient for the purpose of the section ? As I read these allegations, so far from being an admission of an existing liability in 1900, they are in effect a plea of accord and satisfaction a plea that whatever may have been the state of affairs in 1907, an agreement was entered into in 1907 which had the effect of putting an. end to any liability in respect of the original transactions which the defendants may have been under in 1907. They amount to a plea of accord and satisfaction in answer to the plaintiff’s claim. Whether the plea is good in law or bad in law seems to me to be a matter which we need not consider. All that we have to consider is, is it an acknowledgment, and how a plea of accord and satisfaction of a debt by reason of an agreement said to have been entered into between the parties at an earlier date can be said to operate as an acknowledgment of a specific liability at the time the plea is put in, speaking for myself, I entirely fail to understand so far from being an acknowledgment it seems to be a denial of any subsisting liability in 1909.
4. Then it has been contended that, whatever may be the true view with regard to the original liability, paragraph 11 of the written statement operated as an acknowledgment as regards defendants Nos. 1 to 3 and 7 of the liability to pay the 25 per cent, the composition which it is said was accepted in 1907 by the creditor in discharge of his whole claim. It does not follow that the plea involves an admission that 25 per cent, was payable in 1909. The defendant said that he had been since 1907 willing to pay 25 per cent, in discharge of the original liability but the plaintiff had made a default in accepting it. I do not think we can treat that as an admission in 1909 that 25 per cent, still remained due by the defendants to the plaintiff in respect of the original liability, if it was due and owing by reason of the agreement by way of composition which was entered into in 1907.
5. Then we are asked to say that reading paragraphs 12 and 13 together there is a plea of set off. Explanation 1 to Section 19 says that an acknowledgment would be sufficient ” though it is coupled with a claim to a set off “. Is this an acknowledgment coupled with a claim to a set off ? The plea alleges that the plaint firm took possession of certain goods belonging to the defendants worth Rs. 5,000. Then it goes on : ” This defendant here submits that the plaintiffs are liable to give credit to this defendant out of the value of the said goods to the extent of 25 per cent, of their claim and submits that in any event the defendants’ liability to the plaintiffs’ firm should be exonerated to the extent of the value of the said goods “. This seems to me to be a plea of set off in the alternative. I don’t owe the money. If I do, I have a set off. It seems to me that is not an acknowledgment of liability coupled with a claim to a set oft. It is a denial of liability with a claim by way of set off in the alternative.
6. Finally we have been asked to amend the order of amendment as regards all the defendants other than defendants Nos. 1, 2 and 3 that is to say, to treat the case as if, as regards defendants Nos. 1 to 3 they are only to be entitled to raise defences available to them as if the plaint was filed in 1912, but that as regards the other defendants they are to be entitled to raise the defences which would have been available on the plaint filed in 1909. What are the words of the order ?
7. “All the defendants are at liberty to raise all the defences as if the plaint had been filed in 1909. It is suggested that the plaintiff is no better off by reason of this order than he would have been if he had never applied for any order at all, and that, if he had never applied for any amendment he could have gone on as against defendants other than Nos. 1 to 3, the law of limitation being no bar to his claim. That may or may not be so; but I fail to see how we could take into consideration in determining whether we ought to vary or cancel the order. If there was anything in the nature of a slip in making the order, nothing would have been easier than to apply to the learned Judge to correct it. I do not think there was anything in the nature of a slip. I think the learned Judge after having considered the matter and after having decided in the exercise of his discretion that he would grant the amendment imposed such conditions as he thought the justice of the case demanded. At any rate there is nothing which would warrant us in saying that the Judge made a slip. I thing the plea of limitation is good and that the appeal should be dismissed with costs (two sets). .
Oldfield, J.
8. I concur.
