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TMI Blog1943 (2) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... future interest and costs. 3. In appeal the learned District Judge found that there was no cash consideration for the khata of 1931, that it had been passed for balance due on previous khatas and that the suit was barred by limitation. He, therefore, allowed the appeal and dismissed the suit with costs. 4. The dealings between the parties commenced with a loan of Rs. 1,000 on July 10, 1918, for which the khata, exhibit 21, was passed in favour of the plaintiff. The receipt of its consideration in cash is admitted. Thereafter the plaintiff took a khata for Rs. 1,150 in 1922 (exhibit 23), a khata for Rs. 1,300 in 1926 (exhibit 24) and a khata for Rs. 1,300 in 1929 (exhibit 25). The plaintiff says that on every occasion defendant No. 1 repaid the dues under the old khata in cash and then immediately took back the amount on passing a fresh khata. This procedure was not only superfluous but unnatural. It is true that in the accounts of the plaintiff the amount due on the previous khata used to be credited every time as received in cash and a new khata duly signed and stamped used to be taken. But it is usual for money-lenders to show that every time the account is settled a new contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt khatas were due on the. dates on which they were passed, but it is urged, and the learned District Judge has found, that the debt mentioned in the khata of April 5, 1926, (exhibit 24) was time-barred when the next khata (exhibit 25) was passed on May 2, 1929. Hence he held that exhibit 25 as an acknowledgment could not save the bar of limitation and therefore the khata in suit, exhibit 16, is void for want of good consideration, Regarding the bar of limitation he has observed in paragraph 4 of his judgment :- For the purpose of this contention (about the bar of limitation) it is necessary to realise that if we come to the conclusion that any one of the previous khatas was passed beyond the period of limitation, that is to say, on a date on which its predecessor had already become time-barred, neither that khata itself nor any of its successors could be considered sufficient to save limitation. 8. This would be true if the khatas be regarded as mere acknowledgments and not new contracts. But if exhibit 16 be regarded as creating a fresh contract, then it does not matter whether the previous khatas, even if they be regarded as mere acknowledgments, were not passed within the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he words te deva, indicate that the parties contemplated a new contract. The assertion that the amount was received in cash, followed by the words that the amount was payable, shows that it was not a mere acknowledgment of something that was already due. The khata by itself does not show that it was passed for any balance found due on settlement of accounts, and an acknowledgment necessarily imports the acknowledgment of an existing debt. As no such existing debt was referred to in the khata, it follows that it was meant to be a new transaction, and the recital of the receipt of an amount in cash and the liability to repay the amount necessarily indicates a promise to pay that amount. A new contractual relation came into existence and the person who purported to have received the amount agreed to repay it. Hence exhibit 16 must not be treated as a mere acknowledgment of past debt but as a fresh promise to pay the amount which was purported to have been received in cash. The plaintiff's suit on the basis of such a promise is therefore maintainable. The subsequent khata of 1934 (exhibit 17) does not contain such words as to make it a new contract and, therefore, it is sought to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the debt for which he was passing it had become time barred, and, secondly, that the khata itself does not show that it was passed for a past debt. It is true that there is nothing in exhibit 16 to indicate that defendant No. 1 passed it with consciousness on his part that the debt was already time-barred. But there is nothing in the wording of Section 25, Clause (3), to show that it is necessary for the creditor to establish that at the time when the promise was made by the debtor he knew that the debt which he promised to pay wholly or in part was a debt of which the creditor could not enforce payment by reason of the law for the limitation of suits. A similar contention was urged in Bhowani Misser v. Peari Jha (1913) Cri.L.J. 329, and Mookerjee J. observed (p. 331):- In our opinion, there is no foundation for this contention. To support the argument, it is necessary to read into the section words which are not to be found there. If the Legislature had intended Clause (3) to have the operation attributed to it by the respondent, the Legislature might well have used the phrase 'to pay wholly or in part a debt which, the debtor was aware, was such as the creditor could not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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