TMI Blog1980 (11) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 25 of the Indian Contract Act, 1972 (hereinafter called 'the Act') and Therefore he is entitled to recover the same on the basis of the said endorsement. It is not dispute that the present suit was filed on 2nd March, 1968. The suit would be within time if it is held that the said endorsement is a promise to pay within the meaning of Clause (3) of Section 25. (2) Section 25 of the Act is as under S. 25 : An agreement made without consideration is void unless : (1) Agreement without consideration void unless it is writing and registered it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other, or unless (2)or is a promise to compensate for something done it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do, or unless (3)or is a promise to pay a debt, barred by limitation law : it is a promise made in writing and signed by the person to be charged therewi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cknowledgment and promise to pay can be spelt out from such a writing the suit would be covered by the said clause. Reading of Section 9 and Clause (3) of Section 25 of the Act it makes clear that though the word 'express' is not used in Clause (3) of Section 25, it is essential that the promise to pay must be clear and express. It also appears' to me that otherwise there will be no promise to pay in writing as required under this clause. In other words, an implied promise is not sufficient to satisfy the condition of Clause (3) of Section 25 of the Act. What is required is a clear promise. The language of the document is to be studied to find out if there is a clear and fresh promise. The question thus is whether the writing in suit amounts to an acknowledgment or a promise to pay. If it is only an acknowledgment, it cannot be the basis of the suit. But if it is a promise to pay, the suit would be maintainable. The Privy Council in Maniram. Seth v. Seth Rupchaind, 2nd 33 Calcutta 1047 observed that an unconditional acknowledgment implies a promise to pay. In that case the acknowledgment was made before the expiry of the period of limitation. Such an acknowledgment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh cause of action under section 25(3) of the Act. It is further observed that the words 'the promise to pay, necessary to bring a case within section 25(3) of the Indian Contract Act, must be in writing and under section 9 of the Contract Act, such a promise is an express promise and the document must bear words like 'I promise to pay' or 'I undertake to pay', must appear in the document. Learned counsel for the plaintiff-respondent submits that the writing in question is covered by section 25 clause 3 of the Act and relied upon various judgments. In Bhagwan Singh v. Munshi Ram and another, AIR.1937 Lahore 432, balance struck more than three years after the date of the last item in a bahi account is duly signed by the debtor with an additional statement that interest at a specified rate will be realisable along with the said balance. In those circumstances such an agreement was held to be a contract under section 25(3) of the Act and constituted a fresh cause of action. There are various other authorities which it is not necessary to refer at this stage in which it has been held that if the debtor has agreed to pay interest along with striking of the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... next three years. This writing was held to tent amount to novation of the contract meaning thereby that the liability under the pronote would remain alive for another three years. It was Therefore observed by the courts below that it was not an acknowledgment simplicitor. Reading of the endorsement on the back of the pronote, it seems, amounts to only an admission of the pronote and that it is valid for next three years. The existence of the pronote is not denied but I do not find any Words expressing, any promise to pay by the defendant to the plaintiff. The pronote is admitted and the endorsement says that it is valid for three years. To my mind this endorsement is meaningless At best it can mean that the defendant has acknowledged the existence of the pronote. In other words, it may amount to an acknowledgment for purpose of limitation but admittedly this endorsement was not made within the period of limitation. It does not appear to me a promise to pay within the meaning of section 25 of the Act. There are no words to conclude that the defendant intended to pay or promised to pay. Learned counsel for the plaintiff-respondent further contends that the acceptance of the pronote m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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