P (PLP)

CONSTANTINE, J.‑

This appeal must be allowed on the point of limitation. The appellant (defendant 2) is the purchaser of certain lands from defendant 1; and the plaintiff‑respondent sought to enforce a mortgage, which be alleged was created on these properties by defendant 1 by deposit of title deeds as security for money borrowed. The plaintiff in para. 1 of his plaint dated 31st January 1940 stated that at Karachi on the 20th of December 1924 the defendant 1 for valuable consideration executed in favour of the plaintiff a demand promissory note for Rs. 3,500 and mortgaged with the plaintiff by deposit of title deeds his properties shown in schedule 'A' attached to the plaint. In para. 3 he stated: 'The cause of action arose at Karachi within the jurisdiction of this Honourable Court on the 20th of December 1936 when the mortgage amount was payable and for the purpose of saving limitation the plaintiff relies under sections 19 and 20 of the Limitation Act upon (a) letter dated 2nd February 1928 by the advocate of defendants No. 1, (b) reference signed by the defendant No. 1. on the 20th of February 1928 in favour of Mr. Ramchand, J. Vaswani, advocate, and (c) part payment of Rs. 800/‑ towards the mortgage debt appearing under the signature of defendant in the arbitration proceedings dated 11th April 1943." The particulars of the debt were given as follows :‑ Rs. "Principal amount : Rs. 3,500/- 3,500 Interest on Rs. 3,500, at 12 per cent. for 8 years and 4 months from 20th December, 1924 to 20th April, 1933 at the rate of . Rs. 35 per month ... 3,500 7,000 Deduct received on or about 11th April, 1933 ... 800 6200 Interest on Rs. 2,700 for 6 years 9 months and 10 days from 21st April, 1933 to 1st Feb ruary, 1940, at the rate of Rs. 27 per months ... 2,196 8,396 Defendant No. 1 in his written statement merely submitted that he did not deposit sanads of the properties no equitable mortgage was created he also pleaded that the letter reference and part payment did not save limitation. Defendant No. 2 stated that he had nothing to say with regard to paras. 1 to 6 and pleaded that he was a purchaser for valuable consideration without notice, he also pleaded that the plaintiff's claim, if any, was time‑barred. The first question in appeal relates to the interpretation of the letter, reference, and the proceedings before the Arbitrator which were all signed by defendant

1. Do they contain acknowledgment of liability in respect of the right claimed? the material portion in the letter is:-- "There is some amount due to your client on account of dealings between your client and ours, but our client is not in a position to understand how your client arrived at the aforesaid figure. Our client is ready and Billing to settle the matter finally Further as security for the repayment of the amounts due on the account, our client had deposited with your client title deeds You will, therefore please tell your client to keep these ready for being returned to our client when the whole amount is finally settled." The relevant portion of the reference is :‑-- "Whereas the party of the first part (plaintiff) claims from the party of the second part (Defendant No. 4) a sum of Rs. 3,856/1/0 being the balance of the amount including interest for sums alleged to be borrowed by the party of the second part and materials purchased and whereas the part of the second part disputes that correctness of the account and further alleges that as security for repayment of the amount due by him he had pledged with the party of the first part documents and title deeds relating to certain properties by way of equitable mortgage ......" The material portions of the record produced of the proceed ings before the Arbitrator (who died before the end of the proceedings related to the 9th of December 1930 and to a date which is by mistake given as 20th July 1930, and to the 11th April 1933. On the 'first date an item of Rs. 663/. Was claimed as due on account of cement purchased between the 2nd and 29th January 1925. Then on the next date the Arbitrator has noted that Isak disputed two items ; the first was this same item claimed on account of cement and the second item was Rs. 1,500 debited on the 19th of April, 1934. The item of Rs. 1,500 is explained as a balance following dealings after Isak on the 20th of March 1925 had borrowed Rs. 4,000 on a pro note.. The details of ‑the proceedings are not full, but there is a statement by the arbitrator that on the whole account Mr. Merwanjee claimed Rs. ,2,663 as principal. Then on the third date, 11th April 1933 there is a statement that the parties have agreed that defendant is interest in one of the plots subject to the mortgage should be sold for Rs. 800"and the sale price should be paid direct to the plaintiff. It is clear that the letter and reference relied upon by the plaintiff talk of an account and also refer to a mortgage created by deposit of title deeds, when, however, we look at the proceedings, it seems clear that this account is not the account of the promissory note which has been pleaded by the plaintiff. If Mr. Merwanjee claimed Rs. 2663 as principal due on some date after the 20th of December 1930 and before payment of Rs. 800 then this is clearly inconsistent with his pleadings that. Rs. 3,500 had been advanced in 1924 as the consideration for a pro‑note, of which only Rs. 800 had been repaid. The learned Judge at the trial relied upon 22 S. L. R. 117 as authority that all that is required for an acknowledgment if that there should be a conscious and distinct admission of an existing liability or jural relation between the parties. It is true that a defendant, to be bound by an acknowledgment need not state that he‑ is bound to pay a particular sum. In this case, however, the‑acknowledgment stops short of establishing the jural relation or the right which the plaintiff has pleaded. It was not enough for the plaintiff to allege that title deeds have been deposited the plaintiff must also show in his pleadings how there arose the debt, to secure which the title deeds have been deposited. Section 19 requires an acknowledgment of liability respecting the right claimed. What is the right claimed here ? It is to recover the amount advanced under a promissory note together with interest, less Rs. 800 paid, and to enforce payments if necessary, by sale of land mortgaged as security one ingredient is common to the right claimed and the liability acknowledged deposit of title deeds and payment of Rs. 800 but this is an ingredient, and not the whole. Suppose A sues B upon the allegation of ' a single loan in cash and no repayment could A rely upon an acknowledgment by B of liability in respect of an account between them (later in date than the alleged loan) in the course of which goods had been supplied at various times and payments made from time to time ? The answer seems clearly that he could not. The reason is not that the acknowledg ment has failed to specify the exact nature 'of the right on the contrary it is because the acknowledgment has specified the right only too plainly, and because the right acknowledged differs in substance from the right claimed. In the present case Mr. Keshavdas has argued that as defendants 1 and 2 did not deny para 1, of the plaint, the deposit of title deeds stands admitted as relating to the transac tion of the pro‑note alleged further that there is no evidence that the deposit of deeds secured any further or other account therefore, he argues, since the documents refer to the deposit of deeds they must be construed as including a reference to the promote, and thus acknowledging the right claimed in suit. The language, however, of the documents is so inconsistent with the plaints allegations of the pronote transaction that we cannot accept the argument. The truth would perhaps appear to on that the plaintiff for reasons best known to himself hats chosen to sue upon the pro‑note and deposit of deeds, and to avoid producing or relying upon the whole account between the parties. It may be that the deposit of deeds was arranged to cover not only the amount due on the pro‑note, but the balance from time to time owing on account of other dealings between the plaintiff and defendant 1 there is no evidence to the contrary it may be that the pro‑note transaction was merged in the general account and that the plaintiff is suing en the pro‑note alone. These .are mere guesses or speculations. Whatever the truth may be, he has chosen o represent the account of the pro‑note as consisting of one debt item of principal, debit items of interest, and one credit item of Rs. 800, and to represent that as representing the history of the transac tion and the basis of his right as creditor the defendant has acknowledged liability in respect of another account and thus the claim and acknowledgment are in respect of different rights. Mr. Kashavdas also argued that the defendants 1 and 2 must be taken as having admitted his pleadings in para. 3 (a) 3 (b) and 3 (c). As regards these sub‑paras it is, however, to be noted that there is no averment by the plaintiff that these letters and reference relate to the suit transaction and the averment of a part payment of Rs. 800 towards `the mortgage debt' is also ambiguous. Therefore, it seems idle to contend that there has been any admission of the plaintiff's Headings. In any case both the appellant and defendant 1 pleaded that plaintiffs claim was time‑barred. It was also argued that the learned Judge did not consider section 20 of the Limitation Act. In the view, that he took about section 19, it was not necessary for him to do so. There is, however, nothing to show on the face of the proceedings that this part of payment was not paid towards the account which was the subject of the arbitration proceedings and since this was mentioned by the arbitrator this must presumably Have been the case. As we have already pointed out the arbitration proceedings related to an account of materials purchased and dealings between the parties, which are inconsistent with the case of the plaintiff that there had been an account for Rs. 3.500 on the 20th of December 1924 to which the only payment made was Rs.

800. For these reasons the appeal is allowed. We set aside the judgment and decree as against the defendant No. 2 and declare that items 2 and 3 of the schedule `A' to the plaint are not subject to any mortgage or charge in the plaintiff's favour. The plaintiff do pay the appellant's casts throughout. T. V. THADANI, J.‑

I agree. K.M.A./A.H. Appeal allowed.