Acknowledgment during extended period of limitation.

The appellant brought the suit, out of which this appeal arises for recovery of Rs. 13,118-75 due on a promissory note, inclusive of interest, to AL. VR. ST. Estate, Devakottai. The appellant was appointed Receiver by this Court on 30th September, 1959, pending disposal of A.S. No. 223 of 1959. The promissory note was admittedly executed by the first respondent on 5th July, 1946, for a sum of Rs. 10,000 borrowed from the estate at its Madurai branch. On 1st July, 1949, there was a payment of Rs. 250. On 14th June, 1952, there was a further payment of Rs. 2,ooo by bank draft sent by the first respondent from Ipoh, with a covering letter. The suit was instituted on 3rd September, 1960. By an amendment of the plaint, another payment of Rs. 1,000 by a similar draft from the first respondent from Ipoh dated 21st June, 1955 was set up. It was specifically asserted in the plaint that this sum was received in part payment of the debt. The first respondent filed a counter-affidavit opposing the amendment. But, there he merely mentioned that he did not admit the allegation that such a payment was made.

The additional written statement filed by the first respondent was in no better terms. But, in the evidence, it was put in issue as to whether the sum of Rs. 1,000 paid was on account of the suit promissory note or some other transaction. The Court below found that this payment was not towards the promissory note and held that the suit was barred by limitation.

Before us the factum of payment of Rs. 1,000 by draft is not disputed. What is in controversy, however, is, whether the payment was towards the suit promissory note. If it was, the further question would be whether that would, in any case, save limitation. In our opinion, the last payment was clearly towards the suit promissory note, and we cannot accept the finding of the Court below to the contrary.

The bank draft was issued by the Chartered Bank of India, Australia and China and bore No. 54/258 dated 21st June, 1955, and was in favour of AL. VR. ST. Veerappa Chettiar. The draft was addressed to the Indian Overseas Bank Ltd., on 4th July, 1955. There was an entry for the receipt in the family day-book, Exhibit 21, on the same day. The recital of this entry was that it was credited towards the promissory note. Exhibit A-21 was a family account. The bank passbook, Exhibit A-22, which also pertains to the family, contains an entry relating to the receipt of this sum. It appears that along with the draft was sent a covering letter, which is not produced. There is, however, a reference to the sum of Rs. 1,000 in Exhibit A-5 dated 6th January, 1956, which was written by the first respondent to Veerappa Chettiar. In this letter, while referring to the earlier payment on Ani 7th of Rs. 1,000 by bank draft, the first respondent said that the amount might be credited in the Thanathu account. The letter further stated that the balance will be paid to the addressee and the debt cleared and it need not be mixed up with what was in common. This documentary evidence unmistakably shows that the sum of Rs. 1,000 was credited towards the promissory note. The Court below, however, considered that the reference in Exhibit A-5 to ‘Thanathu ‘account and certain mistakes crept into the entry in Exhibit A-21 relating to the receipt of Rs. 1,000 by draft, showed that the amount was not earmarked towards the promissory note but it was a payment on some other transaction. We are unable to agree with this reasoning. The mistakes in the entry in the account book seem to be by inadvertence and are inconsequential. We are satisfied that the entry related only to the draft in question. There is no reason to doubt the genuineness of the account and the particular entry. No doubt, Exhibit A-5 shows that the sum may be credited towards the ‘Thanathu ‘account. We are inclined to think that there must have been some kind of understanding between the first respondent and the addressee in regard to the pr