TMI Blog2003 (7) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... ewal of the period of limitation under Sections 18 and 19 of the Limitation Act, 1963. He further stated in the plaint that plaintiff sues for a decree for ₹ 40,000/- consisting of ₹ 37,000/- as principal and ₹ 3,000/- by way of interest until the date of filing of the suit, though the amount of interest is much more as per the mortgage-deed. Claim for interest amount exceeding ₹ 3,000/- up to the date of suit was given up. 3. A decree for ₹ 40,000/- sought against the defendant and it was also prayed that in case the decree is not satisfied, the property under mortgage may be attached and sold for recovery of the aforesaid amount; and in case, the proceeds of mortgaged property are not sufficient to satisfy the decree, the decree-holder may be permitted to execute decree against other properties of the defendant. 4. The defendant in his written statement dated 3-3-1969, while admitting the execution of mortgage-deed dated 9-4-1949, denied receipt of consideration and also denied proper attestation of the mortgage-deed. He denied to have received ₹ 37,000/- as consideration and denied the payment of ₹ 1,000/- by him to the plaintiff. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant Jatan Mal. The expert opinion of A. S. Kapoor was produced on behalf of the defendant opining in favour of the defendant that the letter was not in the handwriting of defendant. That opinion came on record as Ex. DW/3/3, Apart from the aforesaid material documents, the other documents on record are vakalatnama Ex.-3 dated 7-11-68, which admittedly bears signatures of the defendant Jatan Mal Bothra on 7-11-1968 authorising Hanuman Das Khatri, Advocate to appear on his behalf in this very suit filed by the plaintiff EX.-P/4 the document executed by the defendant as his specimen handwriting produced in the Court for the purpose of examination by the handwriting expert. 8. Apart from the aforesaid documentary evidence, the plaintiff as PW/1, K.S. Puri, the handwriting expert as PW/2, and Kishan Chand PW/3 were examined. On behalf of the defendant, he himself was examined as DW/1 and Manak Chand Bothra DW/2 Handwriting expert Ashok Kapoor as DW/3 were also examined. 9. The trial Court after examining the entire evidence documentary, as well as oral, decided issue No. 1 in favour of the plaintiff by holding that the mortgage-deed was executed by the defendant and that it bears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle Judge held the suit filed on 22-4-1962 to be barred by time. He did not agree with findings of trial Court on issue No. 2. 11. It was found by the learned single Judge that plaintiff has failed to prove the receipt of sum of ₹ 1,000/- made by the defendant on 12-10-60. The learned single Judge further found that the document Ex.-1 has not been proved to be executed by defendant Jatan Lai solely on the basis of his own ocular comparison of the admitted handwriting of the defendant on Ex.-P/ 4 with the disputed document. Thus, finding that neither the acknowledgment of the right of the plaintiff under mortgage has been proved nor the payment alleged by the plaintiff has been proved so as to derive assistance of Sections 18 and 19 of the Limitation Act to give a fresh starting point of limitation in favour of the plaintiff before the expiry of limitation on the basis of original cause of action. 12. In view of these findings the appeal was allowed and the suit of the plaintiff was dismissed as barred by limitation. 13. Hence, this appeal is before us by the plaintiff. 14. No contention has been raised about the finding on issue No. 1 by the learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11-12-1960 to bring the suit within the purview of Section 18 of the Limitation Act, 1963. If the document is proved to be executed by the defendant, it also supports the plea of the plaintiff about the part payment so as to take the benefit of such payment under Section 19 also. 18. It will, therefore, be apposite to reproduce the document in its full to understand its true import:- (Matter in vernacular; omitted- Ed.) 19. It will be also apposite here to reproduce Section 18 of the Limitation Act to consider whether the aforesaid document, if accepted to be written by the defendant, amounts to acknowledgment of the defendant's liability as claimed by the plaintiff against the defendant:- 18. Effect of acknowledgment in writing.- (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if we examine the attending circumstances and the credibility of the witnesses, it is very much apparent that the defendant is not at all a creditworthy witness. Apart from the fact that he has put forward a spurious story about execution of a sham mortgage on 9-4-1949 without consideration, which on the face of his own statement cannot be accepted and has not been accepted both by learned trial Judge and learned single Judge. His statement further reveals that he has tendency of using different handwriting and different script at different times to suit the occasion. While he has denied the fact of Kishan Chand coming to Lashker requesting him to make the payment to plaintiff and making of any payment pursuant thereof, in the first instance, he stated that Kishan Chand PW/2 did not come to him at Lashkar and he did not make any payment of amount to the plaintiff. The witness hastened to add on his own (Matter in vernacular, omitted- Ed.) ' 23. Literally, translation of it, means that perhaps Kishan Chand may have come to Lashkar and taken Bank drafts, he does not know. 24. From the statement also, it is Clear that he was at Lashkar at the relevant time and the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo pieces and preparing a draft on one and then final scripting on another and taking out a stamp from the chest box. With such sharp memory, he makes it convenient to evade straight answer to his dealings with said Rawatmal. It is strange that while mortgage deed was in favour of the plaintiff and not in favour of his father Rawatmal, yet in the absence of plaintiff, said Rawat Mal would be confiding in a person who is not in communication with him for long and not connected with transaction at all in a matter like this. 27. Apart from the above fact, the defendant has put forward the story that device of executing mortgage-deed was resorted to on account of necessity arising out of the losses caused and likely to be caused in the speculation in which the defendant was indulging. But the statement of Jatan Lal in this respect reveals to what extent he can build up the story. According to him, he was indulging in speculation since he was of 12 years. According to his own statement, at the time of executing mortgage-deed Ex.-2, he had not incurred any loss and he has not lost any money in the speculation at any time thereafter nor there was any other debt secured or unsecured, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in whose presence the document was written by the defendant and it was despatched to Calcutta to the plaintiff. This appears to be most natural in ordinary course of conduct that a common relative has been asked by plaintiff to secure repayment of his money by the defendant, when all the three are of common descent, and he while returning from Calcutta, has stopped over to Lashkar for the purpose. 29. The rejection of his testimony by the learned single Judge .on his own ocular comparison of admitted specimen writing with disputed document suffers from a serious error in the present circumstances. In the .light of defendant's own statement, which has been discussed in detail by the trial Judge for discarding his statement and not relying on the expert opinion produced by him, cannot be accepted, in the presence of the direct evidence about its execution and in the presence of the admission of the defendant that he writes different script at different time and he has not written specimen in both types of scripts makes the method of coming to the conclusion by ocular comparison with the admitted specimen document was inexpedient and inadequate. 30. We have also undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int, the document Ex.-1 cannot be read in piecemeal only to sustain the acknowledgment. In the absence of any proof of payment of ₹ 1000/- the document Ex.-1 is to be rejected in its entirety. 34. We have already noticed above that part payment of a sum due is not essential ingredient of acknowledgment in writing of the liability by a debtor. The admission of the fact that the property is mortgaged with the plaintiff and the payment is being remitted to the plaintiff against such debt, is sufficient to invoke Sec. 18. The actual payment if proved can independently be a ground for commencement of fresh period of limitation with effect from the date of such payment. If the acknowledgment is proved and the payment is not proved, it will not take away the effect of Section 18 on fulfilment the terms and conditions of Section 18. 35. Moreover, the learned single Judge has reached his conclusion about non-payment of ₹ 1,000/- without considering Ex.-1 as relevant piece of evidence as the learned single Judge has found against the plaintiff about execution of the Ex.-1 to be in the handwriting of the defendant. But if Ex.-1 is held to be proved to be in the handwriting o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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