JUDGMENT
D. Biswas, J.
1. This appeal is directed against the Judgment and Decree dated . 16.2.2001 passed by the learned Civil Judge (Senior Division) No. 2, Kamrup, Guwhati dismissing the Money Suit No 131 of 1997.
2. The aforesaid Money Suit was instituted by the appellant for realization of Rs. 31,129.92 along with interest of Rs. 43,325.68 at the rate of 18 per cent per annum being the cost of the materials supplied by them to the respondents during the year 1988 and onwards. The learned Trial Court dismissed the suit on the ground that it is barred by limitation and bad for non-joinder of Karbi Anglong District Council.
3. The appellant is a proprietorial firm engaged in the business of supply of various equipments. It supplied various items as per order issued by the Executive Engineer (Defendant No. 7). Besides, the Executive Engineer also deputed his employees to collect spare parts from time to time to take delivery of spare parts by signing on the delivery challan without formal orders. Supplies were accordingly made on 28.11.1988 and various other dates thereafter, the last one being on 27.5.1994. The total value of articles supplied remained due for payment amounted to Rs. 31,129.92. The suit was instituted on 27.6.1997 for realisation of the aforesaid amount with interest at the rate of 18 per cent per annum.
4. The respondents, as defendants, contested the suit pleading inter alia that the suit is barred by law of limitation and bad for defects of praties. The learned Trial Court, on consideration of the pleadings, framed the following issues :-
1. Whether there is cause of action for the suit?
2. Whether the suit is barred by limitation?
3. Whether the suit is not maintainable for not making Karbi Anglong District Council, Diphu as a necessary party in this case?
4. Whether the plaintiff is entitled to a decree as prayed for ?
5. To what other relief or reliefs the parties are entitled ?
5. The learned Trial Court held that the cause of action arose on different dates, as alleged, and answered the issue No. 1 in favour of the plaintiff- appellants. However, the issue relating to limitation and non-joinder of parties were answered in positive and against the appellants. Therefore, this Court proposes to take up the questions of limitation and plea of non-joinder of parties at the first instance.
6. There is no dispute that the cause of action arose on different dates of supply of the spare parts. Limitation will, therefore, have to be computed separately from the date of supply of the items on each occasion.
7. The first supply was made on 28.11.1988 against delivery Challan No. 3622 of the same date. The suit has been filed on 27.6.1997. The claim with regard to supply dated 28.11.1988 having been made after three years is barred by the law of limitation. Similar is the position with regard to the supplies dated 25.7.1989, 22.9.1989, 1.8.1990, 14.8.1990, 27.8.1990, 7.3.1991, 29.7.1991, 21.9.1991, 14.12,1992, 14.6.1993, 3.12.1993, 6.1.1994, 10.2.1994, 21.3.1994, 28.2.1994, 4.3.1994, 21.3.1994, 24.3,1994, 30.3.1994 and 27.5.1994. It appears that the Executive Engineer (Defendant No. 7) wrote a letter dated 27.5.1994 to the Additional Chief Engineer with copies to the appellant requesting to take up the matter with Karbi Anglong District Council for release of fund. Thereafter, again on 29.2.1996, the Executive Engineer wrote a letter to the petitioner stating that final sanction has not been received from the District Council. It is admitted that the aforesaid two letters dated 27.5.1994 and 29.2.1996 revived the limitation giving rise to fresh cause of action. The question to be answered is whether the period of limitation stood extended or revived.
8. The hon’ble Supreme Court in Sampuran Singh v. Smt. Niranjan Kaur, AIR 1999 SC 1047 held that acknowledgement, if any, has to be prior to the expiration of the prescribed period for filing of the suit. The hon’ble Supreme Court made it clear that the provisions of Sub-section (1) of Section 18 of the Limitation Act, 1963 would not come into operation for reviving the limitation when acknowledgement is accorded after the expiration of the prescribed period. The language employed in Sub-section (1) of Section 18 is clear and leaves no room for further interpretation.
9. Shri S.P. Roy, learned counsel for the appellants relying upon the provisions in Section 25 of the Contract Act submitted that the letters written by the Executive Engineer on 27.5.1994 and 29.2.1996 amounted to promise made in writing to pay the whole amount due and, therefore, amounted to a fresh contract enforceable in law. In support of this contention, Shri Roy relied upon the decisions in Kishen Lal, Appellant v. Gholi, Respondent AIR 1938 Lahore 757; Shri Rapaleestuarar Temple, Mylapore, Petitioner v. T. TXrunavukarasu, Respondents, AIR 1975 Madras 164; N. Ethirajulu Naidu, Appellant v. K. R. Chinnikrishnan Chettiar, Respondents AIR 1975 Madras 333, M/S R. Sureshchandra & Co. Plaintiff v. M/s. Vadnere Chemical Works and Ors., AIR 1991 Bombay 44; and Hiralal and Ors., Appellants v. Badkulal and Ors., Respondents, AIR 1953 SC 225.
10. It appears that the letter dated 27.5.19,94 was written by the Executive Engineer to the Additional Chief Engineer requesting for taking up the matter with the KarbiAnglong Autonomous Council for payment. This letter was written within the period of limitation with copies to the appellant firm and the duly appointed attorney. From the language employed, it can be construed that a promise was impliedly made by the Executive Engineer to liquidate the debt due to the appellant firm. Thereafter, again on 29.2.1996, after expiration of the period of limitation, that arose last on 27.5.1994, the Executive Engineer wrote a letter to the appellant firm informing that payment could not be made for want of sanction from the Karbi Anglong Autonomous Council. This letter reads as follows : –
“D/Sir,
With reference to the subject cited above, I am to state that as communicated earlier vide T.O. No. PHEE/LIP/Rural/Estt/15(C)/1566 dt. 11.11.94, the financial Sanction of your passed bills not yet accorded by the authority of Karbi Anglong Autonomous Council, Diphu, hence payment could not be made from this end.
You are therefore requested once again to persurise the matter to the authority of Karbi Anglong Autonomous Council, Diphu from your end, and also make further communication with the authority of Karbi Anglong Autonomous Council Diphu, relating to all payment of your bills, instead of making correspondences with this Office. It shall be of little to communicate to this office for payment.”
11. It would appear from above that the Executive Engineer acknowledged the debt by its letter and requested him to take up the matter with the Autonomous Council, The Executive Engineer who had placed orders and collected materials thus acknowledged the debt due even on 29.2.1996 and held out a promise to pay the debt on receipt of financial sanction from the Autonomous Council.
12. It is, therefore, to be seen whether the promise made by the Engineer vide the aforesaid two letters can be held to be a promise within the meaning of Sub-section (3) of Section 25 of the Indian Contract Act and thus amounting to a contract enforceable in law. To make it more clear, we may refer to the relevant provisions of Section 25 as below : –
“25. Agreement without consideration, void, unless it is in writing and registered or is a promised to compensate for something done or is a promise to pay a debt barred by limitation law. – An agreement made without consideration is void, unless –
(1)…..
(2)…..
(3) 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 a debt of which the creditor might have enforced payment but for the law for the limitation of suits.
In any of these cases, such an agreement is a contract. ………….
Illustrations
(a).____.
(e) A owes B Rs. 1,000, but the debt is barred by the Limitation Act. A signs written promise to pay B Rs. 500 on account of the debt. This is a contract.”
13. The provisions of Section 25 of the Indian Contract Act quoted above clearly shows that a written promise to pay a time barred debt is a contract. In this context, the promise made by the Executive Engineer by the aforesaid two letters can be construed as a contract within the meaning of Sub-section (3) of Section 25 of the Indian Contract Act enforceable in law.
14. This view gain support from the decisions relied upon by Shri Roy, learned counsel for the appellants. In Shri Rapaleeswarar Temple (supra), the Madras High Court relying upon the decision in Kishen Lal (supra) held as follows :-
“6. It is thus clear that there are a catena of decisions and plethora of authority for holding that though a debt might have become time-barred on the date a debtor entered into a fresh obligation with the creditor to pay the liability, the said obligation, if it satisfies the conditions laid down in Section 25(3) of the Indian Contract Act, will amount to a fresh contract in the eye of law and can certainly be made the basis of an action for recovering the amount promised and acknowledged therein by the debtor. While Section 18 of the Limitation Act (Section 19 of the old Act) deals with an acknowledgement made by a debtor within the period of limitation, the contractual obligation which a debtor enters into under the terms of Section 25(3) has no reference whatsoever to the acknowledged debt being within time or not. In Section 25(3) is far wider in scope than the acknowledgement contemplated in Section 18 of the Limitation Act. The contract entered into under Section 25(3) is an independent and enforceable contract and has no reference to the debt acknowledged under the contract being a live one in the sense that it had not become barred under the law of limitation.”
15. The same view was again reiterated by a Division Bench of Madras High Court in N Ethirajulu Naidu (supra). In Mis. R. Sureshchandra (supra), the Bombay High Court held that after the expiry of the period of limitation, nothing short of a clear promise can provide fresh period of limitation and such a promise can also be inferred by necessary implication. It reads as follows: –
“10…..I understand that after the expiry of the period of limitation nothing short of a clear promise can provide a fresh period of limitation. But such a promise can also be inferred by necessary implication. The Supreme Court in Hiralal v. Badkulal AIR 1953 SC 225 quoted with approval a Privy Council decision in Maniram v. Seth Rupchand 33 Ind Appeals 165 (PC)(C), that an unconditional acknowledgement was sufficient to furnish a cause of action for it implied promise to pay……………”.
16. It is, therefore, clear that the promise made by the Executive Engineer the letter dated 29.2.1996 is a contract within the meaning of Section 25(3) of the Indian Contract Act and it gave rise to fresh cause of action in views of the ratio available from the above decisions. The decision of the learned Trial Judge in Issue No. 2 is, therefore, liable to be reversed. It is reversed accordingly.
17. The learned Trial Court also held that the suit could not be decreed being bad for non-joinder of the Karbi Anglong Autonomous Council. There is no dispute that the Karbi Anglong Autonomous Council has not been impleaded as a defendant. The plaint shows that the State of Assam represented by the Secretary of the Public Health Engineering Department, the Chief Public Health Engineer and others including Executive Engineers have been impleaded as defendants. The Secretary, the Chief Public Health Engineer and other Engineers of the Department are the officials of the State of Assam. Their services have been placed at the disposal of the Karbi Anglong Autonomous Council and they are to act in terms of the orders passed by the Council from time to time. For all practical purposes, they function as officers of the Council with lien to their present posts. In this connection the office Memorandum No. HAD.57/95/316 dated 31st December, 1996 may be referred to. The modalities incorporated therein clearly indicate that the administrative control of the Council over the officers and staffs at its disposal is final in all matters of intra-Council transfer and posting. Annexure-1 to the aforesaid memorandum clearly shows that Public Health is one of the subject over which the Council has executive powers. From different letters written by the respondent-authority it is clear that no payment could be made without previous sanction of the Council. That being the situation, the Karbi Anglong Autonomous Council is a necessary party in the absence of which any decree that may be passed cannot be executed. The appellant-firm did not implead the Council as one of the defendants. The suit is, therefore, bad for defect of parties.
18. In the result, the appeal is dismissed without costs.