JUDGMENT
1. The plaintiff lent certain sums to the defendants, and the account between them was last settled on the 18th December 1888. In November 1892, the plaintiff sued for the balance of principal and interest due. In order to take the case out of the statute of limitations, certain alleged payments were relied on. The District Munsif found that one of these, viz., of Rs. 200 on the 6th October 1891, was true, and that there was no bar by limitation. The Subordinate Judge, however, found that the payment was not made and dismissed the plaintiff’s suit, except as regards a small sum admitted by defendants. The finding of the Subordinate Judge as regards this payment is a finding of fact, and although we do not regard his reasons for the finding as altogether satisfactory, we have no power in second appeal to go behind it.
2. It has, however, been found by both Courts that a sum of Rs. 303 was credited in the defendants’ books (Day-book and Ledger) to the plaintiff’s account with them on the 10th October 1890 as interest due on her loan to date, and it is strongly urged before us that this amounts to a payment to her sufficient, under Section 20 of the Limitation Act, to give a new starting point for limitation. No authority in support of this construction of the section has been brought to our notice, and the current of English decisions on the English statute is opposed to it. Amos v. Smith 1 H. & C. 238; Maber v. Maber L.R. 2 Ex. 153; Hart v. Nash 2 C.M. & E. 337. The broad rule deducible from those cases seems to be that though the payment need not be in money but may be in goods, or even by a settlement of account between the parties, yet the payment must be of such a nature that it would be an answer in a suit brought by the plaintiff to recover the amount. If that test be applied to the present case, can it be said that the credit of the sum by the defendants in their books to the plaintiff’s account with them is such a payment to her as would be an answer in a suit brought by her to recover the money and the interest? Clearly it would not. We find, too, that in a case (very like the present case) the Bombay High Court has decided that such a credit of interest is not a payment within the meaning of Section 20. Ichha Dhanji v. Natha I.L.R. 13 Bom. 338. We, therefore, find that this credit is not sufficient to remove the bar by limitation.
3. The only other ground urged on us is that the transaction was not a loan, but a deposit, by plaintiff, in which case limitation would only run from the date of demand for payment under Article 60[1] Schedule 2 of the Act, and the suit would not be barred. The District Munsif expressly states that this plea was given up before him, and there is no affidavit to show that this statement is incorrect. The mere reference to it in the written arguments filed before the District Munsif is no proof that it was not given up after that paper was put in.
4. In the result, the second appeal fails and is dismissed with costs.
[1]
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Article 60:
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Description of Suit. Period of limitation. Time from which period
begins to run
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For money deposited under an Three years when the demand is
agreement that it shall be made]
payable on demand.
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