Riddoch Motors Ltd. v. Ahmed Okash, Civ. App. 12-A-67, 9/3/6-, Seaton J.

Riddoch Motors Ltd. v. Ahmed Okash, Civ. App. 12-A-67, 9/3/6-, Seaton J.

Plaintiff sued defendant for accounts which became due prior to December 1956. The case was filed in July 1966, and defendant claimed that it was time-barred. Both parties agreed that the period of limitation is three years, and they apparently agreed that it was extended by some transaction in 1957. Plaintiff contended that a new period started in January 1961 under the terms of section 19 of the Indian Limitation Act, 1908, which provides that if the debtor makes a written acknowledgement of the debt, a fresh period of limitation begins. Plaintiff did not introduce the written acknowledgement itself; instead a draft of the acknowledgement was introduced, and plaintiff gave oral testimony that a copy of the draft had been made and had been signed by defendant, but that this document had been lost. Plaintiff claimed that still another period started in September 1961 when defendant signed his name beside an entry which had been made in plaintiff’s ledger in 1956 showing the amount of the debt. Plaintiff argued that this constituted an account stated and that it made the debt enforceable even if the period of limitation had previously lapsed. [Citing Bishun Chand Frim v. Girdhari Lal, (1934) P.C., 61 Law Reports, Indian Appeals]. Plaintiff further argued that a new period started in November 1963 when he received a cheque in partial payment of the debt, relying on section 20 of the Indian Limitation Act, 1908. However, the cheque was not introduced and there was no evidence as to who had signed it. Finally, plaintiff argued that a debt of Shs. 200/- incurred in 1964 was in no event time-barred. This debt was not specified in the plaint, but was contained in particulars requested by defendant. Plaintiff offered no proof of this debt but relied on Order 8, rule 5, of the Civil Procedure Code, which provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated not to be admitted shall be taken to be admitted.

            Held: (1) Sections 66 and 67(1) (c) of the Evidence Act provide that secondary evidence of a written document is admissible when the original has been destroyed or lost. The trial court admitted the draft letter of the January 1961 acknowledgement under this section “ and this Court is loath to hold that it was wrong”. [Citing Read v. Price, A. E. R. Reprint (1908-19100 599]. (2) The written acknowledgement of September 1961 kept the account of defendant alive and enforceable. (3) A cheque, proved to be signed by a debtor and given in payment, and which is accepted and duly honored, is an acknowledgement of payment within the meaning of section 20 of the Indian Limitation Act, 1908. even a third party cheque endorsed by the debtor could well have sufficed.[Citing Ismail’s Stores Ltd. v. Lone, Tanganyika L. R., Supp. No. 3 of 1961, 6; The Fifty Years’ Digest (1901-1950), Part X, p. 982]. However, it cannot be presumed hat the cheque was signed or endorsed by the debtor. Therefore, section 20 was not satisfied and the period of limitation lapsed.. (4) No proof of the Shs. 200/- debt was required, for the provisions of Order 8, Rule 5, of the Civil Procedure Code extend to claims specified in particulars demanded by the defendant. Judgment for plaintiff for Shs. 200/-.