K. Kunhambu Nair v. District Collector Kannur and Block Development Officer Edakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 2ND DAY OF FEBRUARY 2017/13TH MAGHA, 1938** **SA.No. 838 of 1999 (G)** ## **-----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 30-8-1995 IN OS 281/1994 of PRINCIPAL MUNSIFF'S COURT, KANNUR.** **AGAINST THE JUDGTMENT AND DECREE DATED 30-1-1999 IN A.S.NO.29/1996 OF THE ADDITIONAL SUB COURT, THALASSERY.** ## **APPELLANTS/DEFENDANTS:** ## **---------------------** **1. THE DISTRICT COLLECTOR, KANNUR.** **2. THE BLOCK DEVELOPMENT OFFICER, EDAKKAD.** **BY GOVERNMENT PLEADER SRI.K.M. HASHIR** ## **RESPONDENT/PLAINTIFF:** ## **---------------------** **K. KUNHAMBU NAIR, S/O. POKKAN, PROPRIETOR, JAI KERALA MOTOR WORKSHOP, THANA, KANNUR AMSOM AND DESOM, KANUR. [DIED]** ## **ADDITIONAL RESPONDENTS:** **2. K. KRISHNAKUMAR, S/O. KUNHAMBU NAIR, K.K. HOUSE, THANA, KANNUR-12.** **3. K. VIVEK, S/O. KUNHAMBU NAIR, K.K. HOUSE, THANA, KANNUR-12.** **4. K. MOHANDAS, S/O. KUNHAMBU NAIR, K.K. HOUSE, THANA, KANNUR-12.** **......2** **-2-** **5. K. INDIRA, D/O. KUNHAMBU NAIR, KEEZHATHUR, MEETHLEVAYAL HOUSE, MAMBRAM P.O., KOLLAM, PIN-670 741.** **6. K. SWAPNA, D/O. KUNHAMBU NAIR, THRICHMBARAM, TALIPARAMBA, PIN-670 141.** **7. K. SINDHU, D/O. KUNHAMBU NAIR, W/O. SUBASH, VANKULATHUVAYAL, AZHEEKODE P.O., PIN-670 009.** **8. SAROJINI, W/O. KUNHAMBU NAIR, K.K. HOUSE, THANA, KANNUR-12.** **THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 8 AS PER THE ORDER DATED 02-02-2017 IN I.A.2725/2011.** **BY ADVS. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN SRI.K.C. KURIYAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** “C.R.” K. HARILAL, J. -----------------------------------------------------S.A. No. 838 of 1999 -----------------------------------------------------Dated this the 2[nd] day of February, 2017 ## JUDGMENT The appellants herein are the defendants and the respondent herein is the plaintiff in O.S.No.281/1994 on the files of the Munsiff's Court, Kannur. The aforesaid suit was filed against the defendants, the District Collector, Kannur and the Block Development Officer, Edakkad, for realisation of a sum of Rs.9,025/along with 10% interest. The parties are referred to as in the original suit. 2. According to the plaintiff, he is the owner of “Jai Kerala Motor Workshop, Kannur”, a workshop approved by the Government. He used to undertake repairing works of the Government vehicles as it was approved by the Government. The vehicle, No.KLT S.A. No. 838 of 1999 -: 2 :- 4773, belonging to the 2[nd] defendant was repaired from the workshop of the plaintiff during the period from 26.9.1982 to 15.7.1986 and, in that account, an amount of Rs.5,144/- was outstanding towards the plaintiff as the repairing charges, during the said period. Out of the total amount, the defendants had paid two bills for Rs.490/- leaving a balance of Rs.4,654/-. Though the plaintiff had issued notice to the defendants demanding payment of the balance amount, the dues were not paid, despite the receipt of lawyer's notice demanding the same. Consequently, the plaintiff instituted the aforesaid suit for realisation of the said amount with interest. 3. In the written statement, the defendants contended that the suit was barred by limitation. According to the defendants, no repair works had been carried out by the plaintiff during the period from 26.9.1982 to 15.7.1986, as alleged in the plaint; but, admitted receipt of the lawyer's notice from the S.A. No. 838 of 1999 -: 3 :- plaintiff demanding payment of an amount of Rs.4,654/-, as repairing charges of the aforesaid vehicle. But, according to them, in the reply notice, the defendants asked the plaintiff to prove the claim, as the office records with the defendants did not show any amount due to the plaintiff and no work order was given to the plaintiff as alleged. So, no amount was due to the plaintiff as claimed in the plaint or in the notice. Thus, the plaintiff has no cause of action to file the suit against the defendants. 4. On the aforesaid pleadings, both parties adduced evidence, which consists of the oral testimony of P.W.1, and Exts.A1 to A5. No evidence, either oral or documentary, had been adduced by the defendants. After evaluating the evidence, on record, the trial court dismissed the suit mainly on the finding that the suit is barred by limitation. 5. Feeling aggrieved, the plaintiff preferred A.S.No.29/1996 before the Sub Court, Thalassery, and S.A. No. 838 of 1999 -: 4 :- the learned Sub Judge, after reappreciating the entire evidence, on record, allowed the appeal, on a finding that the suit is not barred by limitation. Thus, the legality and correctness of the divergent findings, on the question of limitation, have come up before this Court in this Second Appeal. 6. Heard the learned Government Pleader appearing for the appellants and the learned counsel for the respondent. 7. The sum and substance of the arguments advanced by the learned Government Pleader is that the lower appellate court went wrong by discarding the question of limitation and granted a decree to realise a time barred debt from the appellants. It is also contended that the lower appellate court misread Ext.A3 and arrived at an erroneous finding that the same would amount to a promise, coming under Sec.25(3) of the Indian Contract Act, 1872 and it would constitute a fresh contract, notwithstanding the S.A. No. 838 of 1999 -: 5 :- bar of limitation. 8. Per contra, the learned counsel for the respondent advanced arguments to justify the findings of the lower appellate court and contended that a time barred debt can also be realised on a fresh cause of action caused by promise made by the debtor, in writing, to the creditor, after the period of limitation. It is also contended that the contents of Ext.A3 would amount to a promise to pay the amount barred under the limitation. 9. In view of the aforesaid arguments made at the Bar, the question to be considered is, whether a promise made by a debtor, in writing, to the creditor to pay the time barred debt, after the period of limitation, would constitute a fresh contract, to realise the time barred amount under Sec.25(3) of the Contract Act? Put it differently, whether the promise, in writing, to pay a time barred debt would revive the time barred debt and can be recovered by the creditor S.A. No. 838 of 1999 -: 6 :- under Sec.25(3) of the Contract Act? The question, in controversy, centers around Sec.25(3) of the Indian Contract Act, which reads as follows: “25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.-- An agreement made without consideration is void, unless-- (1) x x x x x x (2) x x x x x x (3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specifically authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits”. 10. On an analysis of the aforesaid provision, it is well discernible that a debt, barred by law of limitation S.A. No. 838 of 1999 -: 7 :- of suits, can be realised, notwithstanding the bar under the Limitation Act, provided that there must be a fresh promise to pay the debt, made in writing, signed by the debtor or his authorised agent to pay the debt wholly or in part and such promise would constitute a fresh contract which would give rise to a fresh cause of action also. 11. The above view is supported by the decision of this Court in Panicker v. Prabhakaran [1993 (2) KLT 417] , wherein this Court held that a promise made by the debtor, in a reply notice sent by his lawyer, to the creditor expressing his willingness to pay the time barred debt, would create a fresh contract under Sec.25(3) of the Contract Act and when part of a barred debt is promised to be paid as falling under Sec.25(3) of the Contract Act, that will entitle the promisee only realise that much of the debt, and not the entire liability which existed. 12. Further, in Devakutty Amma v. S.A. No. 838 of 1999 -: 8 :- Madhusudanan Nair [1995 (2) KLT 118], the Supreme Court held that: “Under Indian Law, there could be a contract based on past consideration. The very definition of 'consideration' given in S.2(d) of the Indian Contract Act indicates that past consideration is valid. These terms indicate that past consideration is good consideration and it is a deviation from the general principle of Common Law wherein the past consideration is not treated as good consideration. The use of perfect tense in the definition of consideration makes an exception to the general rule under the English Law.” 13. Bearing in mind the aforesaid proposition, let us examine Ext.A3 letter sent by the 1[st] defendant to the plaintiff. Ext.A3 is a letter dated 29/6/1993 sent by the District Collector, Kannur, to the plaintiff and in the said letter the 1[st] defendant District Collector referred the letter sent by the plaintiff to the District S.A. No. 838 of 1999 -: 9 :- Collector and the subject matter in the letter is the repairing charge due to the plaintiff in respect of a jeep bearing registration No.KLT 4773 of the Block Development Office. The sum and substance of the letter is that the 1[st] defendant herein had issued a direction to the 2[nd] defendant to pay the amount, in dispute, and the letter is intended to inform the issuance of such direction to the 2[nd] defendant. This letter and the direction referred therein to the 2[nd] respondent were issued after the period of limitation. This Court is of the view that certainly, the contents of the letter would constitute a promise that the time barred debt would be paid immediately. If that be so, certainly, this promise would fall under Sec.25(3) of the Contract Act. It follows that the aforesaid promise would give rise to a fresh cause of action to realise the amount which stood time barred on 29/6/1993. Thus, a fresh cause of action had arisen and the suit was instituted within one year and one month from the S.A. No. 838 of 1999 -: 10 :- date on which the fresh cause of action arose. 14. In the above analysis, the lower appellate court is justified in finding that the suit is not barred by limitation, as a fresh cause of action has been arisen under Sec.25(3) of the Contract Act to realise the time barred debt. Thus, it is answered that the promise made by the debtor to the creditor, in writing with signature, to pay the time barred debt, after the period of limitation, would constitute a fresh cause of action to realise the amount under Sec.25(3) of the Contract Act. In other words, the promise to pay a time barred debt would revive the debt to the extent of that promise and can be recovered by the creditor on the fresh cause of action under Sec.25(3) of the Contract Act. 15. Coming to the factual findings, Exts.A1 to A5 would prove the existence of the debt, as claimed by the plaintiff. Exts.A1 to A1(g) are the corresponding bills and there is no material to discredit or disbelieve S.A. No. 838 of 1999 -: 11 :- the genuineness of Exts.A1 to A5. As rightly observed by the lower appellate court, Ext.A3 is sufficient to prove that the amount demanded by the plaintiff was accepted and sanctioned by the 1[st] defendant. If that be so, the 1[st] defendant is estopped from raising any objection against the claim admitted by Ext.A3. I do not find any kind of illegality in the findings of the lower appellate court that the suit is not barred by limitation. No other question of law arises for consideration. This Second Appeal will stand dismissed. All pending Interlocutory Applications will stand closed. Sd/- (K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge