(delivering the judgment of the Court): This is an appeal from a judgment of the Judicial Commissioner in an action, in which the plaintiff (the appellant) sought to recover from his brother, the defendant, (the respondent) $100,000 being the amount acknowledged to be due from him to the former under a Deed of Compromise dated April 24, 1967 made between them. The only defence put forward was that the debt was statute-barred. Since the right of the plaintiff was a claim for a liquidated pecuniary sum founded on contract, section 6 of the Limitation Ordinance, 1953 applies.

Section 6(1)(a) of the Ordinance is as follows:

"… the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say — actions founded on a contract …"

The facts of the case are clear and undisputed. On April 24, 1967 the parties entered into a Deed of Compromise whereby the defendant became the trustee of the plaintiff of an undivided one-third share in the lands and buildings known as Nos. 82A and B, Jalan Ampang, Kuala Lumpur. It was agreed that the defendant would transfer the said property free from encumbrances to the plaintiff. However, the said property was pledged by the defendant with 2 persons in Kuala Lumpur as security for a loan of $40,000 which said loan would fall due for payment on June 30, 1967. Under clause 3 of the agreement the defendant agreed and undertook to redeem the said property on or before that date and within 30 days thereafter the defendant was to transfer the said property to the plaintiff and upon such transfer the plaintiff should release and discharge the defendant from all claims by reason of the relationship of the defendant as trustee. Clause 5 further provides that if the defendant shall fail to transfer the said property within the time stipulated in Clause 3, the plaintiff shall be at liberty to recover from the defendant the sum of $100,000. From the events that have happened the defendant failed to transfer the said property within the time stipulated under Clause 3 of the Deed of Compromise. Accordingly the plaintiff instituted and took this action to recover the said sum of $100,000 on April 11, 1974. The learned Judicial Commissioner held that the action was time-barred. We agree with his finding.

In the course of the trial the plaintiff adduced evidence that both he and the defendant had entered into another agreement on March 23, 1976 in India in the presence of 5 arbitrators. Amongst other things in the said agreement was an undertaking by the plaintiff that upon payment of $90,000 to be made by the defendant to the plaintiff within a period of 9 months from the date of the said agreement the plaintiff shall withdraw his suit for the recovery of $100,000 brought against the defendant. It was contended on behalf of the plaintiff that the new agreement amounted to an acknowledgement that the debt of $100,000 was still due and owing by the defendant to the plaintiff. Section 26(2) of the Limitation Ordinance was relied on and it reads:

"Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgement or the last payment."

It was therefore contended that time began to run from the date of the new agreement and the plaintiff's claim revived from that date and was not time-barred. The learned Judicial Commissioner rejected that argument. He held that the new agreement which was made after the pleadings had closed was an attempt to revive the cause of action which was statute-barred. He further held that the plaintiff in his reply pleaded that the law of limitation had no application to the c