Judgement

Appeal (No. 46 of 1938) from a decree of the High Court (April 14, 1937) which had reversed a decree of the Senior Subordinate Judge of Jhelum (June 9, 1936).

The dispute in this appeal was in relation to the recovery of a sum of Rs. 11,463-8-0 on the basis of a promissory note, dated February 4, 1930, for Rs. 18,500, executed by the respondent, Lal Chand, a timber merchant, in favour of the appellant, Rama Shah, a banker, and the main question for determination was whether the suit for the recovery of the money was barred by limitation.

The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.

The trial Court held that the suit was not barred by limitation, and that the plaintiff (appellant) was entitled to recover the amount from the defendant (respondent).

On appeal, the High Court (Dalip Singh and Skemp JJ.) held that the suit was barred by limitation, and they reversed the decision of the Subordinate Judge.

1940. Jan. 26, 29, 30. L. P. E. Pugh K.C. and Chinna Durai for the appellant. The case was based on a promissory note, dated February 4, 1930, for Rs. 18,500. On January 24, 1933, within a few days of the period of limitation, the respondent paid Rs.100, and wrote an endorsement on the promissory note "Paid Rs.100 to-day in this pro-note.” It is submitted that it is perfectly clear that he intended thereby to extend the period of limitation. There has been a con siderable amount of judicial opinion on s. 20 of the Limitation Act of 1908, as amended by Act I. of 1927, which made the requirement of writing apply to both principal and interest. [The section was read.] The object of the amendment was to put principal and interest on exactly the same footing. The words "as such" are now become redundant except for one purpose, namely, the payment before January 1, 1928; they are still necessary as regards that, and that is the reason for keeping them in. It has been settled law in Calcutta since In re Ambrose Summers (( 1896) I. L.R. 23 C. 592.) that under the old law if there was a debt carrying principal and interest, and there was a general payment without any specific appropriation at all, that must be either towards principal or interest; whichever it was did not matter Kedar Nath Mitra v. Dinabandhu Saha.(( 1915) I. L. R. 42 C. 1043.) It was said in Hem Chandra Biswas v. Puma Chandra Mukherji (( 1916) I. L. R. 44 C. 567.) that where there is a writing the Court ought to hold that it is a principal payment. It appears from Maiz Uddin Miya v. Nalini Bala Debee (I. L. R. [ 1937] 2 C. 137.) that the writing may be made at any time, provided that the payment was made within time. It is submitted that this payment of Rs.1oo was, as the first Court said, directly a payment for principal, and was immediately appropriated by the creditor as such that is to be inferred from the form of the endorsement. It is put against the appellant that if a payment of any sum

is made to a man to whom both principal and interest are owing, if no appropriation is made by either the debtor or the creditor then the payment is no use under s. 20 to anybody because it is not appropriated either way. There was clearly no appropriation by the appellant to interest in the present case, therefore Udaypal Singh v. Lakhmi Chand (( 1935) I. L. R. 58 A. 261.) does not block appropriation for principal. The majority decision in Udaypal’s case (5) was dissented from in two Patna decisions Liquidator, Bagha Co-operative Society v. Debi Mangal Prasad Sinha (( 1936) I. L.

R. 16 Pat. 27.), and Bankanidhi Tantra v. Godipatna Co-operative Society. (( 1936) I. L. R. 16 Pat. 294.) It was also dissented from in Khan Sahib v. Uchil Lebbay (I. L. R. [ 1938] R. 591.), Lakshmi Naidu v. Gunnamma (( 1934) I. L. R. 58 M. 418.), Jagtu Mal Sada Sukh Rai v. Charanji Lal-Fakir Chand (( 1933) I. L. R. 14 Lah. 580), and Hariram-Dowlatram v. Ramsing Gopal Sing. (A. I. R. ( 1937) Sind.95) There are two questions first, was it a p