TMI Blog2015 (2) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... . But proof has been placed to show that only three cheques have been dishonored (Exs.P-6 to P-8). When this was pointed out the learned counsel for the plaintiff submitted that the defendant has paid a sum of ₹ 10,00,000/- and the balance due is only ₹ 15,00,000/-. Therefore, the suit has to be decreed for a sum of ₹ 15,00,000/-, even though as per Ex.P5 the liability is ₹ 25,00,000/-. Suit is partly decreed. - Civil Suit No.250 of 2007 - - - Dated:- 11-2-2015 - Mrs.. S.Vimala, J. For Plaintiff: Mr. R.Shanmugam For Defendant: M/s. Sampathkumar Associates JUDGMENT Whether the plaintiff is entitled to a decree based upon the admission made by the defendant in the pleadings or otherwise (written statement and Exs.P-4 and P-5) admitting his liability, based upon the provisions of Order XII Rule 6 of the Civil Procedure Code, providing for Judgment on admission? 1.1. When the acknowledgment of liability, though made after the period of limitation, satisfies the conditions laid down under Section 25(3) of the Indian Contract Act, would it amount to a fresh contract in the eye of law and whether it can be made the basis of an action f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit claim. Based upon the said letter, the learned counsel for the plaintiff filed an application under Order XII Rule VI of the CPC., praying the Court to give a judgment on admission. This Court, by order, dated 12.01.2011, did not allow the application, but directed the parties to face the trial. 7. Thereafter, the following issues have been framed by this Court on 21.06.2011:- i. When the defendant acknowledged his liability to the suit claim by way of his letter dated 29.09.2008 addressed to the plaintiff, is it open to the defendant now to dispute the suit claim on the question of limitation? ii. When the defendant after accepting his liability to pay the suit claim and after effecting part-payment towards the suit during the pendency of the suit, is there any defence for the defendant denying or disputing to pay the balance of the suit claim? iii. When the defendant admitted his liability to the suit claim and issued three cheques each for ₹ 5,00,000/- totalling ₹ 15,00,000/- and got them bounced for insufficiency of funds, is it now open to the defendant to deny or dispute the suit claim on the question of limitation? iv. Is not the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh starting point of limitation and therefore, the suit is liable to be dismissed. 10.1. In order to support the contention that that the acknowledgment must be made before the expiry of the period of limitation, the learned counsel for the defendant relied upon the following decisions:- (i) 2012-2-L.W. 256 (K.Krishnamoorthy v. Investment Trust of India Limited ors.):- 40. .... As per Section 18 of Limitation Act, essentials of a valid acknowledgment are (i) an admission of acknowledgment; (ii) that such acknowledgment must be in respect of a liability in respect of a property or right; (iii) that it must be made before the expiry of the period of limitation; (iv) that it should be in writing and signed by the party against whom such property or right is claimed. .... (ii) 2008-3-L.W. 259 (K.Jeyaraman v. M/s.Sundaram Industries Ltd.,) :- A plain reading of Section 18 of the Limitation Act shows that the acknowledgment of liability should be made before the expiry of the prescribed period for instituting a suit on the basis of the original cause of action. (iii) AIR 1961 SC 1236 (PC) (V 48 C 221) (S.F.Mazda v. Durga Prosad Chamaria and Others):- (5) Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been made between a mere acknowledgment of liability and an acknowledgment of liability which will have the effect of creating a new cause of action, providing a fresh start of limitation, i.e., from the point of promise, new limitation period will begin to run. In other words, whether it would be a promise as contemplated under Section 25 (3) of The Contract Act, which can be made after the period of limitation, providing fresh start of limitation. This aspect would be discussed in the subsequent paragraphs. Duty of the Court:- 11. The learned counsel for the plaintiff contended that it is not open to the defendant to raise the plea of limitation when the defendant has not chosen to examine himself and therefore, in the absence of evidence on limitation, the case of the defendant must be thrown out. 11.1. In reply to that, the learned counsel for the defendant pointed out that even without the plea of limitation being raised by the defendant, it is the duty of the Court to look into the point of limitation and to decide the case. In order to support the proposition, the decision reported in (1995) 2 MLJ 84 (C.Selvaraj (died) and others v. The Corporation of Madras, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation for collection on the due dates without fail. 14. Whether the letter, dated 29.09.2008, would amount to a mere acknowledgment of liability made after the expiry of period of limitation (which is not valid) or it is a promise as contemplated under Section 25 (3) of The Contract Act, which can be made after the period of limitation, providing fresh start of limitation is the issue to be considered? 14.1. In order to satisfy the stipulations of Section 25 (3) of The Contract Act, the following essentials must be present:- (i) there must be a promise to pay a debt; (ii) there must be a debt of which the creditor might have enforced payment but for the law for the limitation of the suits; (iii) the promise must be made in writing; and (iv) the writing must be signed by the person to be charged therewith or by his agent generally or specifically authorized on his behalf. 14.2. The debtor while acknowledging his liability to pay a time-barred debt must make an express promise to make, if the claim is to be sustained under Section 25 (3) of the Contract Act. The language used must indicate that it is something more than an acknowledgment of a debt. 14.3. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uth of Exs.P-4 and P-5 has not been challenged by the defendant by examining himself and therefore, there must be a decree based on admissions made by the defendant in Ex.P-5. It is also pointed out that the admission made in the written statement would also be the strong basis for the grant of decree in favour of the plaintiff. This contention is well founded. 15.3. It would be relevant to consider the relevant order providing for judgment on admission, i.e., Order XII Rule 6 CPC, which reads thus:- Judgment on admissions - (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit having regard to such admissions. Admission made in the written statement 16. In the written statement, the defendant has stated that he paid a sum of ₹ 15,00,000/- in full quit and this settlement was not reported to the Court as promised by the plaintiff. But, no proof has been filed to show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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