9911796707
TMI Blog1980 (8) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim showed the execution of a demand pro-note for Rs. 4,000 on March 30, 1970, in favour of the company, now in liquidation. The claim was filed on July 11, 1975. In the remarks portion of the claim statement it was mentioned that the claim was not barred and evidently as justification it further stated "payment after D.P.N. till 6-2-1973". The suggestion appears to be that after the execution of the pro-note payments had been made, the last of the payment being on February 6, 1973. That, it is said, is supported by a copy of the ledger said to have been filed along with the claim, but actually filed very much later, on orders of court. The learned judge has observed in his judgment that the case was posted a number of times for evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot barred. Under section 19 of the Limitation Act it is not every part payment that would save limitation but only a payment the acknowledgment of which appears in the handwriting of, or in a writing signed by, the person making the payment. There is no case that any of the payments were of that nature. Therefore, section 19 of the Limitation Act would not operate. We are not told of any other provision which would make the date of the last payment relevant. In these circumstances, there is no averment in the claim to save the claim from limitation. As we have noticed, the claim was filed on July 11, 1975. No doubt the claim could be filed within 3 years of the date of winding up. We need not consider whether further extension of time under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise in the case properly must be brought up and this can be done only by placing necessary facts and proving them in court. We say this because learned counsel, Sri Iyer, tried to salvage the case by reference to matters which are not on record such as the fact that the claim being that under a chitty, dates of default of payment of subscriptions would be relevant, and that investigation should be made to find the date of default so as to determine whether the claim would be barred. The relevant facts should have been mentioned in the claim and the court should have been placed in a position to appreciate the plea in that light. In the absence of any such material before us even now we feel that this argument is of no assistance in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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