Thengath Saidh S/O Muhammed v. Chirakkal Kareem Muhammed

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, ``` ## **`1943`** ``` RSA NO. 1053 OF 2010 ``` ``` AGAINST THE JUDGMENT AND DECREE IN AS 99/2005 OF DISTRICT ``` ## **`COURT,KALPETTA`** ``` OS 212/1999 OF MUNSIFF COURT, KALPETTA ``` ## **`APPELLANT/APPELLANT/DEFENDANT:`** ``` THENGATH SAIDH S/O MUHAMMED, AGED 58 YEARS, RESIDING AT PULPARA, KALPETTA AMSOM DESOM OF VYTHIRI TALUK (REPRESENTED BY HIS WIFE AND, POWER OF ATTORNEY HOLDER SMT. NAFFEESA,, D/O.HASSAN KUTTY, AGED 33 YEARS,RESIDING AT, NONDATH HOUSE, NO.KM16/225, PULPARA, KALPETTA AMSOM DESOM, VYTHIRI TALUK BY ADVS. SRI.P.K.RAMKUMAR ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` CHIRAKKAL KAREEM MUHAMMED S/O.KAREEM MOIDEEN AGED 52 YEARS, RESIDING AT PULPARA, KALPETTA AMSOM DESOM, OF VYTHIRI TALUK. ``` ``` BY ADV SRI.LALJI P.THOMAS ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RSA No.1053/2010 ..2.. ## **JUDGMENT** The defendant who suffered a money decree is the appellant. 2. The plaintiff instituted O.S.No.212/1999 before the Munsiff’s Court, Kalpetta against the defendant for realizing a sum of Rs.35,000/- with future interest. The plaintiff pleaded that on 25.05.1995, the defendant had received a sum of Rs.35,000/- from him promising to arrange a visa for getting a job in Muscat. The defendant failed to arrange the visa as promised. On 15.10.1998, the defendant executed Exhibit A1, agreeing to repay the amount on or before 30.04.1999. It was also undertaken that he would pay interest at the rate of 20% per annum for the amount, if the amount could not be paid within the stipulated time. The plaintiff requested the defendant to return the amount in terms of Exhibit A1. The defendant refused to accede. RSA No.1053/2010 **==> picture [20 x 9] intentionally omitted <==** 3. The defendant resisted the claim contending that he had not executed the agreement as pleaded. He contended that he had no business of arranging visa. It was also stated that the claim of the plaintiff is barred by limitation. 4. During the trial, PWs 1 and 2 were examined and Exhibits A1 to A8 were marked on the side of the plaintiff. DW1 was examined and Exhibits B1 to B5 were marked on the side of the defendant. 5. The Trial Court held that Exhibit A1 is not an acknowledgment of liability as provided in Section 18 of the Limitation Act, but it is only a fresh agreement based on a past consideration and therefore held that the suit is not barred by limitation. The Trial Court also held that the plaintiff succeeded in establishing the plaint claim and decreed the suit directing the defendant to pay the plaintiff the sum of Rs.35,000/- with interest at the rate of 20% per annum from 25.05.1995 till realization with RSA No.1053/2010 **==> picture [20 x 9] intentionally omitted <==** costs. 6. The defendant challenged the decree and judgment passed by the Trial Court before the District Court, kalpetta in AS No.99/2005. The First Appellate Court confirmed the decree and judgment of the Trial Court. 7. The defendant is in appeal before this Court under Section 100 of the Code of Civil Procedure. 8. On 15.09.2010, this Court admitted the appeal and issued notice to the respondent/plaintiff on the following substantial question of law. ‘Whether awarding of 20% interest per annum on the principal sum for the post decreetal period till realisation under the decree granted in favour of the respondent/plaintiff is sustainable under law where such decree was for payment of money and, thus, subject to the statutory interdiction in awarding of interest under Section 34 of the Code of Civil Procedure.’ 9. After hearing both sides, this Court formulated ## the following additional substantial question of law: ‘Was not the suit barred by limitation’? RSA No.1053/2010 **==> picture [20 x 9] intentionally omitted <==** 10. Heard Shri.P.K. Ramkumar, the learned counsel appearing for the appellant/defendant and Shri. Lalgi P. Thomas, the learned counsel for the respondent/plaintiff. 11. The case of the plaintiff is that the defendant received a sum of Rs.35,000/- from him on 25.05.1995 promising to arrange a visa for employment in Muscat. According to the plaintiff, as the defendant failed to arrange visa as agreed, on 15.10.1998, he had executed Exhibit A1 undertaking agreeing to return the money on or before 30.04.1999. 12. The defendant denied the transaction alleged by the plaintiff. The defendant, inter alia, contended that the suit is barred by limitation. The Trial Court as well as the First Appellate Court concurrently found that the plaintiff established the alleged transaction, in which the defendant received a sum of Rs.35,000/- agreeing to arrange visa for employment. Both the Courts below concurrently found that Exhibit A1 is a written promise to RSA No.1053/2010 **==> picture [20 x 9] intentionally omitted <==** pay a time - barred debt. 13. The learned counsel for the appellant strenuously contended that Exhibit A1 is an acknowledgment of a past liability, as provided in Section 18 of the Limitation Act, and that it cannot form a basis for the suit. 14. Exhibit A1, at any rate, cannot be termed as an acknowledgment of liability as provided in Section 18 of the Limitation Act. As rightly held by the First Appellate Court and the Trial Court, Exhibit A1 is an independent contract, which is a promise in writing to pay a debt due to the plaintiff. 15. It is useful to extract Section 25 of the Indian Contract Act, which reads thus:- **“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) it is expressed in writing and registered under RSA No.1053/2010 ..7.. the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless. (2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised 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. In any of these cases, such an agreement is a contract.” [Emphasis supplied] 16. As per Section 25(3) of the Contract Act, a debtor can enter into an agreement in writing to pay the whole or part of a debt of which the creditor might have enforced payment but for the law of limitation. 17. In the Indian Contract Act [Pollock and Mulla, LexisNexis - 14[th] Edition], the learned author on the applicability of Section 25(3), comments thus:- “Under s. 25(3), a debtor can enter into an agreement in writing to pay the whole or part of a debt, which the creditor might have enforced but for RSA No.1053/2010 ..8.. the law of limitation, and a suit can lie on a written promise to pay the barred debt as it is a valid contract;such a promise constitutes novation, and hence, can form a basis of a suit independently of the original debt. The reason for this provision is that the debt is not extinguished; only the remedy gets barred by passage of time, and this provision does not revive a dead right but merely resuscitates the remedy to enforce the right, which already exists." 18. The reason for upholding these promises was thus stated in **Tillakchand Hindumal v. Jitamal Sudara’m** [(1873) 10 Bombay High Court Reports 206] soon after the Act came into force by Westropp CJ.: “The general rule of law, no doubt, is that a consideration merely moral, is not a valuable consideration such as would support a promise; but there are some instances of promises, which it was formerly usual to refer to the now exploded principle of previous moral obligation, and which are still held to be binding, although that principle has been rejected. Amongst those instances is ...a promise (in writing) in renewal of a debt barred by the Statute of Limitations. The efficacy of such promises is now referred to the principle that a person may renounce the benefit of a law made for his own protection.” In view of the above discussion, the suit is not barred by limitation. 18. The Trial Court granted the decree in favour of RSA No.1053/2010 ..9.. the plaintiff, allowing him to realize the plaint amount with interest at the rate of 20% per annum. Section 34 of the Code of Civil Procedure provides wide discretion to the Court in ordering interest on the principal amount. Admittedly, the transaction between the parties is not a commercial transaction. This Court is of the view that granting interest at the rate of 12% per annum from the date of institution of the suit till the date of decree and 6% per annum from the date of decree till realization will meet the ends of justice. Accordingly, the decree of the Trial Court stands modified to the above extent. In the result, 1. The decree directing the defendant to pay the plaintiff a sum of Rs.35,000/- with costs is confirmed. 2. The plaintiff is entitled to the interest on the principal amount of Rs.35,000/- as mentioned above. The Regular Second Appeal is disposed of accordingly. RSA No.1053/2010 ..10.. Pending applications, if any, stand closed. Sd/- **K.BABU, JUDGE** kkj