Evidence of plaintiff not sufficient.

1. Plaintiff in O.S. No. 919 of 1978, on the file of the Additional District Munsifs Court, Kulithalai, is the appellant.

2. Suit filed by him was one lor recovery of money, alleging that respondents husband late Rajagopal Pillai had borrowed amounts from the plaintiff on 30-1-1970 and 23-4-1970. It is also contended that the defendant acknowledged the liability of debt by part payment on both promissory notes dated 27-1-1973 and 27-3-1973. It is also contended that there was a Moratorium in filing suits and the plaintiff also bona fide believed that the defendant was entitled to various Debt Reliefs Act, he filed the suit after the Mmoratorium period is over.

3. In the written statement filed by the defendant, she denied the entire transaction. She also denied the acknowledgements.

4. The trial Court after taking into consideration the entire evidence, as per Judgment dated 20-6-1981, decreed the suit as prayed for. The trial Court was of the view that the part payment made by the defendant amounts to acknowledgement of liability and within a period of three years from the date of such acknowledgement, the Moratorium Acts came into force and immediately after the moratorium period was over, the plaintiff has filed the suit. It was held to be within time, and decree was granted against the defendant and permitting the plaintiff to recover the amount from the assets of late Raja Gopal Pillai, which are in possession of the defendant.

5. Against the said Judgment, defendant preferred A.S. No. 133 of 1981, on the file of Subordinate Judge, Karur. The lower Appellate Court has held that the promissory notes are genuine, but acknowledgements made by the defendant, while her husband was alive are not valid acknowledgement and the same will not save limitation. The Moratorium Acts came into force only in the year 1975 and long before that, the claim has become barred, and therefore, the plaintiff cannot claim the benefit of either the acknowledgements or the Moratorium Acts. The appeal was allowed and the suit was dismissed.

6. It is against the said Judgment, the plaintiff has preferred this Second Appeal, on the following substantial question of law: —

“Whether the lower appellate court is in error in holding that the suit claim is barred by limitation merely on the ground that there is no specific plea of applicability of debt laws in the plaint as originally filed, even though such a specific plea was raised when the plaint was represented.”

7. In the plaint, the appellant has no case that the defendant is a constituted agent, for acknowledging the liability. He only said that there is an acknowledgement of liability of two debts by making part payment. Even according to the plaintiff, the acknowledgements were made by the defendant, when the debtor, her husband was alive. It is to over-come this difficulty, when the plaintiff was examined, it was stated that during the relevant time, her husband was in the hospital, and therefore, his wife acknowledged the liability. The question is what is the effect of that acknowledgement.

8. Under Section 18 of the Limitation Act, an acknowledgement of liability has to be made in writing, signed by the party against whom such property or right is claimed or by any person through whom he derives title or liability.

In Explanation (b) to Section 18 of the Act, it is further said that the word “signed” means signed either personally or by an agent duly authorised in this behalf. Admittedly, there is no pleading as contemplated in Explanation (b) to Sec. 18 of the Limitation Act. Even though the agents authority need not necessarily be in writing and the same could also be proved by oral evidence, there should be a basis to prove the same. It is settled law that where the acknowledgement is alleged to have been made by an agent, the authority to make the acknowledgement must be proved and the onus is only on the plaintiff to prove that the agent had that authority. In this case, the pla