IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 SA.No. 570 of 1996() -------------------- AS.14/1993 of ADDITIONAL SUB COURT,KOCHI OS.164/1991 of ADDL.MUNSIFF COURT,KOCHI .................... SECOND APPELLANT(S): APPELLANT/PLAINTIFF ---------------------------------------------------------------------- K.K.PRABHAKARAN, S/O.KOCHAPPAN, ADVOCATE, KALATHIPARAMBIL HOUSE, NARAKKAL P.O. A582 505. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------------------------------------- ANTONY ALIAS ANTHAPPAN, THEKKANATH HOUSE, NEAR CHERUPUSHPALAYAM CHURCH, NARAKKAL 682 505. ADV. SRI.SABU GEORGE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/05/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 570 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of May, 2011. JUDGMENT The plaintiff, who is aggrieved by the concurrent findings by which the suit was dismissed, is the appellant. 2. The suit was one for money. There was some transaction between the plaintiff and the defendant, the details of which are not very relevant for the purpose of this appeal. The plaintiff claimed on the basis of the transaction that an amount of Rs.4,138/- was due to him. The defendant disputed the transaction and the liability. 3. Issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant had marked Ext.B1. S.A.570/1996. 2 4. Both the trial court as well as the lower appellate court found that money was infact due from the defendant to the plaintiff and the contention put forward by the defendant was that there was no transaction between the parties is incorrect. However, both the courts found that the claim of the plaintiff is barred by limitation and accordingly dismissed the suit. Thus the plaintiff has come up in appeal. 5. Notice is seen issued on the following questions of law: “(a) When the plaintiff had produced along with the plaint the promissory note executed by defendant even though not stamped, can it be received in evidence for the collateral purpose of acknowledgment of the liability? (b) When the licence period expired only on 14.4.1988, when the liability to pay the entire amount terminates, whether the courts below are justified in relying upon an earlier date for reckoning limitation? S.A.570/1996. 3 © When the plaintiff had proved the cause of action and no contra evidence is forthcoming, whether the courts below are justified in holding that suit is barred by limitation? (d) When the plaintiff had specifically pleaded that defendant executed a document acknowledging the liability and produced the same along with plaint, whether the courts below are justified in holding that there is no plea of acknowledgment? (e) The suit is not for realisation of a time barred debt as pleaded and proved, whether the courts below are justified in holding that there shall be a plea of acknowledgment.” 6. Learned counsel appearing for the appellant pointed out that the courts below were not justified in holding that the suit was barred by limitation. Reliance was placed on the payment said to have been made on 4.5.1989 and contended that the suit is within the period of limitation. It is contended that the said payment can be treated as an S.A.570/1996. 4 acknowledgment of debt as provided in Section 19 of the Limitation Act. 7. The said contention is without any basis whatsoever. Both the courts below have considered this aspect in considerable detail and the alleged payment, even assuming it to be true, does not come within the ambit of Section 19 of the Limitation Act. The necessary ingredients to attract Section 19 of the Act are conspicuously absent in the case on hand. Section 19 of the Limitation Act reads as follows: “19. Effect of payment on account of debt or of interest on legacy.- Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in S.A.570/1996. 5 the handwriting of, or in a writing signed by, the person making the payment. Explanation- For the purpose of this section,- (a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment; (b) “debt” does not include money payable under a decree or order of a court.” Section 19 mentions about two ingredients, (1) regarding the part payment and (2), acknowledgment in writing of the said payment. In the case on hand there is nothing to show that the second ingredient is satisfied. Both the courts below have found so. Learned counsel for the appellant was unable to show that the courts below have erred in any manner in coming to the conclusion that the suit is barred by limitation. No substantial question of law arises for consideration in this Second Appeal. S.A.570/1996. 6 The second appeal is without merits and it is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.