009-NLR-NLR-V-14-MOORTHIPILLAI-v.-SIVAKAMINATHAPILLAI.pdf
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Sr.pt, 22,1910
Present: Hutchinson C.J.
MOORTHIAPILLAl v. SIV A K A MI NATH A PILLAI.
235 C, R., Colombo, 14,137.
Prescription—Part payment of delft after the period of prescription had run.
When the time has expired within which an notion to recover adebt is maintainable; and the debtor afterwards promises in writingto pay the debt., or makes a payment on account of it, the effect ofthe promise in writing or of the payment (from which a promise to.pay the balance is inferred) is to take the case out of the operationof the enactments which prescribe the l ime within which an actionmust be brought.
When a debt is prescribed it is not. extinguished ; an expresspromise to pay it (which is now required hv the Ordinance Xo. 22of 1871 to be in writing), or a part payment, is a renunciationof the benefit, of the prcseripl ion.
I
N this case the plaintiff alleged in the plaint that the defendantborrowed from him, between the year 1903 and February 13,
1906, at different times, sums of money amounting to Rs. 250^-withinterest at 12 per cent.; and that the defendant paid on account ofthe said principal two sums of money, Rs. 30 and 25, respectively,on March 22 and April 2, 1909 ; and that on April 19, 1909, uponan account stated between the parties, a balance sum of Rs. 291.40was found to be due and owing from the defendant to the plaintiff.The parties went to trial on the following issues :— 1
(1)Did defendant on April 19, 1909, promise to pay plaintiffRs. 291.40 ?
If so, can the plaintiff maintain an action thereon ?
Is the claim prescribed ?
The learned Commissioner of Requests (M(, S. Pinto, Esq.) dis-missed plaintiff’s action for the following reasons stated in hisjudgment :—
“The promise relied on has been satisfactorily proved The
promise was to pay a debt already prescribed. The learned counselfor the plaintiff argued that the promise was a new cause of action,and that there was a new contract apart from the debt, which wasdead, and that the new contract gave the plaintiff a valid right to
sue Section 13 of Ordinance No. 22 of 1871 provides that no
acknowledgment or promise by words only shall be deemedevidence of a new or continuing contract whereby to take a caseout of the operation of the enactments regarding prescription(viz., section 6 to section 12).
“ Section 8 distinctly enacts that no action is maintainable forany money lent without written security, unless such action isbrought within three years from the time after the cause of action
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has arisen. This section in unmistakable language bars actionsbrought after the period of three years. If, therefore, the presentaction is allowed, it will mean that this case has been taken outof the operation of section 8 by a promise by words only. Theargument of Mr. Tambyah was anticipated by the framers of section13, for they provided that the promise was invalid even as evidenceof a new contract.
“ These are the words of Moncreiff J. in Kaffoor Saibo v. Mudali-hamy Baas1 : ‘ He is suing upon a new contract (an account stated),upon a new cause of action, which is independent of his liabilityto pay for goods sold and delivered. Now this new contract is notto be proved by an acknowledgment or promise'by words only.’Although the ‘ new contract * was in that case founded on an accountstated and this case is founded on a promise, the dictum of thelearned Judge is applicable here.
I find that the promise in question was made, but hold that thisaction cannot be maintained, as the cause of action—the promise—is not provable by reason of section 13 of Ordinance No. 22 of 1871,and I find that the claim in respect of the money lent is prescribed.”
The plaintiff appealed.
SampayOt K.C. (with him Tambyah), for the appellant.
No appearance for the respondent.
[The following authorities were cited at the argument: In re Boswel(1906) 75 L. J. ch. 234 and 658 ; In re Friend, 66 L. J. ch. 737.]
Cur. adw vult.
September 22, 1910. Hutchinson C.J—
The plaintiff sues to recover Rs. 291.40 and interest. He statesin his plaint (1) that he lent the defendant at various times sumsamounting to Rs. 250, which the defendant promised to pay ondemand with interest ; (2) part payments in March and April, 1909,which are set out in the particulars filed with the plaint ; (3) anaccount stated in April, 1909, when the balance sum of Rs. 291.40was found to be due from the defendant to him. The defendant inhis answer simply denied all these statements ; he did not pleadthat the claim was prescribed. Issues were settled :—
Whether the defendant borrowed from the plaintiff the
sums alleged by the plaintiff ?
Whether he made the payments in March and April, 1909?
Was there an account stated ?
Is anything due from the defendant to the plaintiff ?
If it is due, is the claim prescribed ?
The Commissioner heard counsel on the 5th issue first, and afterhearing evidence by the plaintiff he expressed his opinion that thealleged payments did not save the claim from being prescribed ;and that the account stated was not proved ; he gave the plaintiff1 {1903) 6 X. L. R. 216,
Sept. 22t 1910
A foorfhift-pilfai v.Sivakami-nathapillai
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Sept. 22, 1910
Hutchinson
C.J.
Moorthia*
pillai v.Sivakami-rinthapillai
time to withdraw this action and bring a fresh action on the allegedpromise to pay ; and in default of the plaintiff doing so, he orderedthe action to be dismissed.
On appeal this order was set aside and the case sent back for trial.The Commissioner then framed fresh issues :—
Did the defendant on April 19 (afterwards amended to
March 22) promise to pay the plaintiff Rs. 291.40 ?
If so, can the plaintiff maintain this action ?
Is the claim prescribed ?
. The plaintiff’s counsel objected to the 3rd issue. • His reason isnot recorded ; perhaps it was because the defendant had not pleadedprescription.
The Commissioner after hearing the evidence found that thepromise to pay was proved, but that as it was not in writing, and theclaim was prescribed before the promise was made, the promise didnot save the claim from being prescribed. That was clearly right.He made no reference to the part payments, but held that the claimfor the money lent was prescribed, and dismissed the action.
The payments by the defendant in March and April, 1909, onaccount of his debt were sworn to by the plaintiff; the defendantin his evidence did not expressly deny them, but contented himselfwith denying that he ever borrowed any money from the plaintiff.I will not send the case back for the Commissioner to record hisfinding as to whether the payments were made, because it seemsclear from both his judgments that he believed that they were made;and I must decide this appeal on the. footing that they were made.And if they were made, the claim is not prescribed.
When the time has expired within which an action to recover adebt is maintainable, and the debtor afterwards promises in writing topay the debt or makes a payment on account of it, the effect of thepromise in writing, or of the payment (from which a promise to paythe balance is inferred), is not to revive a dead claim, but to takethe case out of the operation of the enactments which prescribe thetime within which an action must be brought. That is sufficientlyshown by the passage from Pothier quoted by the Commissionerin his first judgment. When the debt is prescribed it is not extin-guished ; the bar must be opposed by the debtor ; it is not suppliedby the Judge ; and it may be waived by a renunciation of it by thedebtor ; and an express promise to pay it (which is now required bythe Ordinance to be in writing), or a part payment, is a renunciationof the benefit of the prescription. {Pothier on Obligations, p. 3,ch. 8, art. 1.)
I set aside the decree dismissing the action, and direct judgmentto be entered for the plaintiff for Rs. 291.40, with interest at 9 percent, per annum from April 20, 1909, till payment in full, with costsin both Courts.
Appeal allowed.