Hoare & Co. V. Rajaratnam

1932 Present : Dalton and Drieberg JJ.

HOARE & CO. v. RAJARATNAM.

81 - D. C. Colombo, 35,309.

Prescription-Acknowledgment of debt-Request for time not granted-Benefit of condition-Plea in bar raised in appeal.

Where the acknowledgment of a debt is coupled with a request for time, which was not granted,-

Held, that the creditor was not entitled to avail himself of the benefit of the condition he had rejected, in bar of prescription.

A plaintiff cannot rely upon a ground of exemption from the law of limitation raised for the first time in appeal.

APPEAL from a judgment of the District Judge of Colombo.

Nadarajah, for defendant-appellant.

N. E. Weerasooria, for plaintiff-respondents.

April 29, 1932. DALTON J.-

The respondent firm has obtained judgment in the lower Court against the defendant (appellant) for the sum of Rs. 1,357.85 in respect of goods sold and delivered and work and labour supplied. The defendant pleads that the amount is prescribed.

The last item in the account attached to the plaint is dated January 16, 1928. The plaint was filed on October 30, 1929. The plaint did not set out, as it should have done under the provisions of section 44 of the Civil Procedure Code, the ground upon which the exemption from the bar of lapse of time was claimed, but, at the opening of the case on the day of trial in the lower Court, counsel for plaintiff produced a letter of September 28, 1928 (marked P1), by defendant to the plaintiff firm apparently, as the judgment shows, for the purpose of setting it up as  an

acknowledgment of defendant's indebtedness, and as a bar to the plea of prescription. Defendant does not deny that it is an acknowledgment of his indebtedness. This document P 1 is in the following terms: -

Sivagirie Estate,   
Undugoda,        
28th Sept., 1928.

Messrs. Hoare & Co.,
      Colombo.

Bungalow Roof.

DEAR SIRS,-IN reply to your letter of 5th instant, on account of the fall of rubber prices, you will have to wait another couple of months for settlement.

In the meantime please send your contractor to put right the leaking roof, &c, as promised in your letter of 2nd November, 1927.

I am, Dear Sirs,                  
Your's faithfully,        
(Sgd.) R. N. RAJARATNAM.

The trial Judge held this letter to be an unconditional promise to pay on the expiration of two months from the date of the letter, and that therefore, plaint having" been filed on October 30, 1929, within twelve months of the expiration of those two months, plaintiff's claim is not prescribed.

Plaintiff's failure to comply with the peremptory provisions of section 44 of the Code has been the chief cause of his difficulty in stating precisely the ground upon which exemption from the bar of prescription is claimed. If that failure was intentional to give scope for future eventualities, one can have little sympathy with him. No objection was however taken on behalf of defendants to this failure on the part of plaintiff, although the bar must have been apparent on the face of the plaint with its account of particulars attached. Possibly reference to the document P 1 by counsel for plaintiff at the opening of the case was accepted by both sides as making any amendment of the plaint unnecessary, for it has been held that the Judge may ex mero motu recognize the bar and give effect to it. (Arunasalam v. Ramanathan [1 9 S. C. C. 190.].)

Considerable correspondence passed between the parties, and it is quite clear, from the answer sent by the plaintiff firm to this letter P1, that they did not interpret that letter as the trial Judge has done. The letter D 8 of October 2, it is agreed, is a reply to P 1, although on the face of it it appears to be an answer to a letter of September 26. After dealing with the matter of the damaged roof the firm declines to grant any further time and asks for a cheque in settlement by return. On first reading the letter P 1,

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