An unconditional acknowledgment of liability implies a promise to pay and can furnish a cause of action for maintaining a suit, even if it is not a formal promise under Section 25(3) of the Contract Act.

G.N.Prasad, J.

1. This is an appeal by the plaintiffs who instituted a suit for recovery of Rs. 4,305.44 from the defendant under the following circumstances. On the 30th Bhado 1360 Fasli, corresponding to 23rd September, 1953, the defendant took a loan from the plaintiffs of a sum of Rs. 2601/8/-in cash. Again on the 11th Baisakh 1361 Fasli, corresponding to 29th April, 1954, the defendant took a loan from the plaintiffs of Rs. 70 in cash and grains. Thirdly, on the 18th Kuar 1362 Fasli, corresponding to 19th October, 1954, the defendant took 5 maunds of paddy from the plaintiffs valued at Rs. 50. Thereafter, on the 1st Bhado 1362 Fasli, corresponding to 4th August, 1955, there was an accounting between the parties, and as a result thereof, the amount due to the plaintiffs was found to be Rs. 3,370/6/3, that is to say, Rs. 2,721/8/- as the principal sum advanced and Rs. 648/14/3 on account of interest up to the date of the accounting. The results of the accounting were incorporated in a chitha (Ext. 4) executed by the defendant on the same day in the following terms:

(TABLE)

The present suit was instituted by the plaintiffs on the 28th November 1957 for the recovery of the aforesaid sum of Rs. 3370/6/3 besides Rs. 935/-/9 on account of interest from the date of the chitha (Ext. 4) to the date of the institution of the suit.

2. The defendant raised various pleas in defence. He denied having taken the loans from the plaintiffs or that there was any accounting, as alleged in the plaint He averred that he used to take loans from the plaintiffs about eight or ten years previously and his thumb impression existed on a blank page of the plaintiffs Bahi and that pace of the Bahi appeared to have been converted into the chitha (Ext 4) and made the basis of the present suit. The reason for making such a false claim against the defendant was alleged to be that he had refused to depose for one Harihar Mahto who was involved in a dacoity case and who was on friendly terms with the plaintiff No 1.

3. The Learned Additional Subordinate Judge, who tried the suit found the plaintiffs case to be true and held that the plaintiffs were entitled to a decree for the amount claimed on the basis of the chitha (Ext. 4). In appeal, however, the learned Additional district Judge has set aside the decree and dismissed the suit. The learned Judge accepted the plaintiffs case that the chitha (Ext. 4) was duly executed by the defendant after the accounting which took place between the parties on the 4th August 1955 in respect of the three items of loan specified there in which had been taken by the defendant from the plaintiffs on the three relevant dates. But the learned Judge dismissed the suit on the ground that the chitha (Ext 4) could not form the basis of the present suit since it amounted to a mere acknowledgment of the defendants liability and not to a promise to pay on the part of the defendant as contemplated by Section 25(3) of the Contract Act. Being thus aggrieved, the plaintiffs have preferred this second appeal.

3A. At the outset, Mr. K.D. Chatterji appearing in support of the appeal put forward the contention that the learned Judge ought to have maintained the decree of the trial Court on the footing that the suit was in substance on the basis of the original loans advanced to the defendant more than three years before the institution of the suit, but the bar of limitation was saved by the acknowledgment of the defendants liability contained in the chitha (Ext. 4) which gave a fresh start of limitation under sec. 19 of the Limitation Act. 1908 Learned counsel pointed out that the acknowledgment of liability contained in the chitha (Ext 4) was made by the defendant before the expiration of the limitation period of three years computed from the dates of the original loan transactions.

This argument, however, is not available to the plaintiffs having regard to the frame of the suit, which clearly shows that it is based entirely upon th