The main legal point established in the judgment is the interpretation of the entitlement to rebate in a construction contract and the legal implications of payment by cheque as an acknowledgment of the debt.

JUDGMENT

S.K. Ghose, J. - This is an appeal under Clause 15, Letters Patent from the judgment of my learned brother Henderson J. The relevant facts are these: The plaintiff brought a suit alleging that he had agreed to construct a house for the defendant according to an estimated cost of Rs. 7555 less the sum of Rs. 555 claming Rs. 1776 as the amount due. The defendant con. tended that on account of the work being unsatisfactory, it had to be stopped after a certain time, that the total dues were settled at Rs. 4878 minus a rebate of Rs. 359 proportionate to the rebate of Rs. 555 upon the original estimate of Rs. 7555, that he made certain payments and that only Rs. 31 was due from him except with regard to some scaffolding materials. The Munsif decreed the suit at Rs. 531. On appeal by the defendant the Subordinate Judge reduced the figure to Rs. 480. The defendant again appealed to the High Court. Our learned brother Henderson J. agreed with the Subordinate Judge but allowed further appeal. Hence this Letters Patent Appeal by the defendant.

2. In this appeal two questions are raised. The first is that the defendant appellant is entitled to rebate as claimed by him proportionate to the rebate of Rs. 555 upon the original estimate. This argument is sought to be supported upon the principle of quantum meruit but really what the appellant asks us to do is to make a new contract for the parties. Henderson J. pointed out that the appellant himself put an end to the work before it was concluded, the original estimate of the plaintiff was set aside and the suit is for the work actually done. Therefore there can be no question of rebate on the basis of the original estimate. The point therefore fails.

3. The next point is that of limitation. The defendant's case is that he made a payment of Rs. 300 upon the settled account arrived at on the intervention of an Engineer, Mr. B. Dhar. This payment was made by two cheques which were given to the plaintiff by the defendant on 28th January 1929. Prom the date of that payment the present suit was instituted within three years. Henderson J. held that there was sufficient compliance with the proviso to Section 20, Limitation Act. This finding is challenged in this appeal. Now it is admitted that the payment of Rs. 300 was made by-two cheques as aforesaid and also that this payment was towards the plaintiff's claim and not on any other account. The question is whether the cheques are to be held to be acknowledgment of the payment in the handwriting of the appellant. The first point is whether the cheques are payments at all. This point was settled by the judgment of Sir Lawrence Jenkins C.J. in Kedar Nath Mitra v. Dinabandhu Saha AIR (1916) Cal 580. There, a cheque was delivered to a payee by way of payment and was received by him as such. Jenkins C. J. pointed out that "there was no suggestion in that case that the cheque upon presentation was not paid and in fact it was." Upon these facts it was held that the cheque operates as a payment subject to the condition subsequent that if upon due presentation the cheque is not paid the original debt revives. Then he said:

If I am right in the view that the cheque actually was a payment, the very payment was in the handwriting of the person making the same.

4. No doubt this was with reference to the old Act; while now by the amendment of 1927 it is not "the fact of the payment" appearing in the handwriting of the person making the payment but "an acknowledgment of the payment" appearing in the same handwriting that has got to be proved. So far as this question is concerned, it seems to me that, although the fact of payment may be different from the acknowledgment, if the cheque itself is evidence of the fact of payment it is also evidence of acknowledgment. It has been contended that acknowledgment must necessarily follow the payment. I do not see why the two may not be simultaneous. If we take the acknowledgment to mean admission (the ordinary dictionar