1. This is an appeal on behalf of the defendant in an actioncommenced against him by the plaintiff-respondent, for the recovery of Rs.1,999. The case for the plaintiff is that the defendant, who was engaged incontract business under the District Board of Faridpur found it necessary toborrow from his father money from time to time upon agreement to pay interestthereon at the rate of 2 per cent per annum. According to the plaintiff, thefirst of the sums lent was advanced on the 2nd April 1902 and the last on the6th August 1904. The plaintiff further alleges that the defendant made paymentson account of principal and interest on the 2nd April 1902 and a payment onaccount of interest only on the 21st September 1903. According to the statementof accounts appended to the plaint, a sum of Rs. 1,729-8 would be due from thedefendant on account of the principal and Rs. 1,267-14-9 as interest thereon,The plaintiff, however, relinquished out of the sum due as interest Rs. 998-6-9and he claimed to recover the balance Rs. 1,999 from the defendant. In supportof that claim the plaintiff relied upon the private account book of his father,for the years 1899 to 1904 which, he alleged, contained entries of sums paidout to the defendants. He also produced a letter alleged to have been writtenby the defendants on the 26th October 1904 to the father of the plaintiff,which he asserted contained an acknowledgment of the debts, sufficient in lawto save the claim from the bar of limitation. In the Court of 1st instance thedefendant resisted the claim mainly on the ground that he had not borrowed anymoney on the several dates alleged by the plaintiffs, but he conceded that hehad taken loans on other occasions which he had duly repaid. He further pleadedthat the claim, if true, was barred by limitation. The Courts below haveconcurrently decreed the claim in part. They have found that the story set upby the defendant was untrue, and that the sums alleged to have been advanced bythe plaintiff had been duly paid to the defendant except two sums dated the18th December 1903 and the 6th August 1904. The Courts below have alsooverruled the plea of limitation on the ground that the payment made on the21st September 1903 was sufficient to save the claim from the bar oflimitation.

2. The defendant has now appealed to this Court and on hisbehalf the decree of the Subordinate Judge has been assailed substantially ontwo grounds, namely, first, that the account books were not regularly kept inthe course of business and were consequently not admissible in evidence, andthat in any event the specific entries of the sum advanced had not been dulyproved; and, secondly, that the claim was barred by limitation.

3. In support of the first of these contentions, the learnedVakil for the appellant has placed reliance upon section 34 of the IndianEvidence Act which provides that entries in books of account regularly kept inthe course of business are relevant whenever they refer to a matter into whichthe Court has to enquire, but such statement shall not alone be sufficientevidence to charge any person with liability. It has been argued that before anentry in a book of account can be treated as relevant and consequentlyadmissible in evidence, it must be proved that the book has been regularly keptin the course of business, and it has been asserted that in the case before us,there is no evidence to show that the books relied upon were so kept. It hasalso been suggested that there is, on the other hand, evidence to show that thebooks were not regularly written. In answer to this last argument, the learnedVakil for the respondent has contended that in order to bring an account bookwithin the section, it is not necessary to show that it has been written fromday to day, as ruled by the Judicial Committee in the case of DeputyCommissioner v. Ram Parshad 27 C. 118 : 26 I.A. 254 : 4 C.W.N. 417. Todetermine, whether the objection of the appellant is well-founded, it isnecessary to remember the principle on which the rule is based. The reasons forthe rule are, first, that the habit and system of making any such book withregularity ensure their accuracy; secondly, that the influence of habitprevents casual inaccuracies and counteracts the casual temptation to mis-statements:thirdly, that as such books record a regular process of business transactions,an error is almost certain to be detected and rectified, fourthly, that in suchbooks mis-statements cannot be made except by a systematic and comprehensiveplan of falsification; and fifthly, in some cases the writer may make therecord under a duty to his employer in which case there is the additional riskof censure from the master if a mistake is committed. (Wigmore on Evidencesections 15, 22). As Tindal, C.J., observes in Poole v. Dicas (1835) 1 Bing.N.C. 649 : 41 R.R. 646 : 1 Scott. 600 : 1 Hodges 162 : 7 Car. & P. 79 : 4L.J.C.P. 196., it is easier to state what is true than what is false; theprocess of invention implies trouble; the clerk has no interest to make a falseentry; if he has any interest it is rather to make a true entry; a false entrywould be likely to bring him into disgrace with his employer. To put the matterin another way, in the words of Swayne, J., in Fannerstim v. Champagne 3Wallace 149, the rule rests upon the consideration that the entry was withinthe writers business; the writer has full knowledge, no motive to falsehoodand there is the strongest improbability of untruth; safer sanctions rarelysurround the testimony of a witness examined under oath. From the point of viewof these principles, if is essential, in every case where reliance is placedupon books of account, to establish that they have been regularly kept in thecourse of business. It is perfectly true that as laid down by their Lordshipsof the Judicial Committee in the case of Deputy Commissioner v. Ram Parshad 27C. 118 : 26 I.A. 254 : 4 C.W.N. 417, they need not be written up from moment tomoment or from day to day. But it is obvious that if they have been written upcasually once a week or a fortnight, though they may be admitted in evidence,they do not possess the same claim to confidence that attaches to books enteredup from day to day or from hour to hour as transactions take place. [MuncherShaw v. New Dhurumsy 4 B. 576] The proper procedure to follow, therefore, is,as laid down by their Lordships of the Judicial Committee in Dwarka Das v.Jankee Das 6 M.I.A. 88 at p. 98, to call the clerk who has kept the accounts orsome person competent to speak to their genuineness, to prove that the bookshave been regularly kept and that they are generally accurate. But this is notall that is necessary; section 34 makes the entries relevant if they areentries in a book of account regularly kept in the course of business. It is,therefore, not sufficient merely to prove the correctness of the book, theentries themselves have to be proved unless indeed the necessity for such proofis removed by the admission of the opposite party. In the case before us, theaccount books were produced in the original Court and all that was proved onthe side of the plaintiff was that the books were in the handwriting of hisfather, Kali Prosanno Chuckerbutty. The boots were not even examined in detailin the original Court. The particular entries upon winch the plaintiff relieswere not even selected and exhibited. In this Court some of the entries havenot been traced at all. Obviously the proceedings in the original Court wereconducted with considerable laxity. The particular entries upon which theplaintiff relies ought to have been pointed out and proved; evidence shouldalso have been given in detail as to the character of the books themselves. Wehave ourselves examined the books closely and we are of opinion that theyrequire much fuller scrutiny than has been applied by the Courts below, beforethe plaintiff can be permitted to use any entries therein in support of hisclaim. It must be remembered further that the books purport to be the privateaccount books of the father of the plaintiff and they ought, consequently, tobe carefully tested before they are used against the defendant. In fact whenthey are used in favour of the plaintiff, it must not be overlooked that theplaintiff is allowed to use in his own favour evidence which he or hispredecessor-in-interest has created; the Court must, therefore, feel assuredthat the books are thoroughly reliable. The first ground taken on behalf of theappellant must, consequently, prevail.

4. In so far as the second ground urged on behalf of theappellant is concerned, it raises a question of considerable nicety, the truebearing of which does not appear to have been appreciated by either of theCourts below. The plaintiff relies upon a letter alleged to have been writtenby the defendant on the 26th October 1904 as also upon a payment of interestalleged to have been made by him on the 21st September 1903, to save the casefrom the bar of limitation. In so far as the letter is concerned, theSubordinate Judge has not determined the question of its genuineness. In ouropinion, even if the letter he assumed to be genuine, its terms are notsufficiently precise to constitute an acknowledgment of liability in respect ofthe right in controversy within the meaning of section 19 of the Limitation Act.The letter, which is addressed by the defendant to the father of theplaintiffs, states that the writer had informed Ananda Charan Chakruvarti thatsince the overseer had passed the bills, the money of the addressee would bepaid. It will be observed that the defendant, if the story of the plaintiff istrue, was indebted to his father in respect at least of eleven differenttransactions; the terms of the letter are obviously not specific enough toindicate whether the acknowledgment related to one or more of thesetransactions. No doubt, as observed in the case of Gopal Rao v. Hari Lal 9 Bom.L.R. 950, though an acknowledgment need not be expressed and may be left toimplication, it must be a necessary implication from the words used, that theperson acknowledging, was referring to and admitting the distinct liability indispute and not any liability. Tested in the light of this principle, theletter is obviously insufficient to save the claim from the bar of limitation.

5. In so far as the alleged payment of interest isconcerned, the question which arises for consideration is, whether the paymentis sufficient to bring the case within section 20 of the Limitation Act. Thatsection provides that where interest on a debt is before expiration of the prescribedperiod paid as such by a person liable to pay the debt or by his agent dulyauthorized in this behalf, a fresh period of limitation shall be computed fromthe time when the payment was made. This section, it will be observed, does notexpressly refer to the case of payment of a sum as interest when more than onedebt is due from the debtor to the creditor, which is the case now before us.As we have already stated, the defendant borrowed various sums from the fatherof the plaintiff on different occasions. The sums advanced were neverconsolidated so as to constitute one debt. Consequently, when payment was madeof Rs.200 on account of interest on the 21st September 1903, without furtherspecification, the question necessarily arises whether the payment issufficient to save the claim from the bar of limitation in respect of any orall of the different debts duo. The learned Vakil for the appellant hascontended that there is no presumption that the payment was made on account ofone of the different debts than of the others; and that, consequently, theinference is not permissible that any portion of the claim is saved from thebar of limitation. In support of this proposition, reliance has been placedupon the cases of Tippetts v. Heane 1 C.M.R. 252 : 40 R.R. 549 : 4 Tyr. 772 : 3L.J. Ex. 281: Burn v. Boulton 2 C.B. 476 : 69 R.R. 508 : 15 L.J.C.P. 97; Millsv. Fowkes 5 Bing. & C. 455 : 50 R.R. 750 : 7 Scott 444 : 2 Arn. 62 : 8L.J.C.P. 276 : 3 Jur. 406. Reference has been made particularly to the second ofthese cases in which it was ruled by Tindal, C.J., that if it has been left indoubt on which of the accounts the payments were made, they would have beenapplied to neither. Now it may be conceded that the payment whether ofprincipal or interest must be attributable to the debt sued on. Tippets v.Heane 1 C.M.R. 252 : 40 R.R. 549 : 4 Tyr. 772 : 3 L.J. Ex. 281; Simms v.Brutton (1850) 5 Exch. 802 : 20 L.J. Ex. 41; In re Fountaine (1909) 2 Ch. 382 :25 T.L.R. 689 : 78 L.J. Ch. 648 : 101 L.T. 83 : 25 T.L.R. 689. So that whenthere is only one debt between the parties, a payment of interest may withoutfarther evidence be referred to that debt. Evans v. Davics (1838) 4 A. & E.840 : 2 H. & W. 15 : 6 L.J.K. B. 268; but where there is more than one debt,the plaintiff must make out distinctly that the payment, on which he relies, isapplicable to the debt sued for. Burkett v. Blanshard (1848) 3 Exch. 89 : 18L.J. Ex. 34; Holme v. Green (1816) 1 Starkies 488. Now, if the debtor does notappropriate at the time of payment, what is to happen He has, no doubt, thefirst right to appropriate provided he does so at the time of the payment;because quicquid solvitur, solvitur secundum modum solventis. But if he doesnot appropriate, the creditor has the right to appropriate, because quicquidrecipitur, recipitur secundum modum recipientis. The right to appropriate thusdevolves upon the creditor and can be exercised by him at any time before theproceedings questioning the debt. The Mecca (1897) A.C. 286 : 66 L.J.P. 85 : 76L.T. 579 : 45 W.R. 667; Smith v. Betty (1903) 2 K.B. 317 : 72 L.J.K.B. 853 : 89L. T. 258 : 52 W.R. 187. Consequently, the rule which the learned Vakil for theappellant invited us to adopt, viz., that if there are two debts and paymenthas been made by the debtor without specification, it cannot save either debtfrom the bar of limitation, cannot be accepted as an inflexible rule of law. Infact, there is weighty authority in support of the contrary view. Thus inWalker v. Butler (1856) 6 E. and B. 506 : 106 R.R. 691 : 25 L. J.Q.B. 377 : 2Jur. (N.S.) 687, the creditor had the money due from his debtor on sevenseparate advances which aggregated to more than 300. The debtor made apayment of 60 but without specification as to the particular debt for whichthe payment was intended. The different accounts had never been balanced orascertained between the creditor and the debtor, much less had there been anyconsolidation. It was ruled that there was evidence to go to the jury as towhether the payment on account of the debts was sufficient to take the wholeout of the statute of limitation. Garb, J., declined to assent to the doctrinethat where there are two debts existing and a payment is made, not specificallyappropriating to either, there is no sufficient evidence of a payment onaccount of either of those debts to take it out of the statute of limitation.Crompton, J., observed that even where the debts are not separate, if a paymentis shown, it will be a question for the jury whether it is not applicable toall the debts. The case of Nash v. Hodgson (1855) 6 De. G.M.G. 474 : 106 R.R.157 : 25 L.J.Ch. 186 : 1 Jur. (N.S.) 946 is clearly distinguishable. In thatcase A was indebted to B on three promissory-notes. Upon application by B, Apaid 5 on account of interest. At the time of this payment, two of the noteswere barred and one was not barred. It was ruled that the payment roust beattributed as made exclusively in respect of the note not barred, because, asLord Cranworth observed, where there are several debts, the inference is thatthe payment should be attributed to those not barred. See also In re Boswell(1906) 2 Ch. 359 : 75 L.J. Ch. 234 : 94 L.T. 243 : 54 W.R. 306 : 22 T.L.R. 247and Friend v. Young (1897) 2 Ch. 421 : 66 L.J. Ch. 737 : 77 L.T. 50 : 46 W.R.139. The question, therefore, arises, whether there are any specialcircumstances in the case before us which may help us to determine whether thepayment of interest was made on account of all or any of the debts then due.For this purpose we need not examine the accounts before the 2nd April 1902.There had been before that four advances of the aggregate sum of Rs. 1,125 andinterest thereon was due to the extent of Rs. 54-9-6. On the 2nd April 1902,Rs. 800 was paid by the defendant. The result of this was that the whole of theclaim for interest was satisfied and the defendant continued indebted to theplaintiff for the principal sum of Rs. 379-6-6. We state below in a tabularform the sums subsequently advanced on the different dates and the interestapproximately due on each sum from the date of its advance to the date when Rs.200 was paid on account of interest.

6. It will be observed that the amount due as interest whenthe payment of Rs. 200 was made on the 21st September 1907, was Rs. 307; thesum paid was sufficient to discharge the whole of the interest due on the lastseven debts amounting to Rs. 175 and there was a balance of Rs. 25 left whichmight be deemed as part payment of interest on the first sum due. Under thesecircumstances, the inference is perfectly legitimate that the payment mayreasonably be attributed to all the debts. In this view, no portion of theclaim would be barred by limitation. The learned Vakil for the appellant,however, has strenuously contended that as under section 50 of the CivilProcedure Code of 1882, the plaintiff had stated in his plaint how he proposedto save his claim from the bar of limitation, he could not be now allowed torely upon an altogether different circumstance as sufficient for his purpose.In support of this proposition, he has placed reliance upon the case ofJogeshwar Roy v. Raj Narain Mitter : 31 C. 195 : 8 C.W.N.168. That, decision, however, as explained in the cases of Raghu Nath v. SyedSamad Shah : 12 C.W.N. 617 : 7 C.L.J. 560, Yakub Ibrahim v.Bai Rahimat Bai 10 Bom. L.R. 346 and Nistarini v. Chandi Dasi S.A. No. 466 of1908, does not lay down any inflexible rule of law. If the plaint shows theground of exemption, the requirement of the Code is satisfied, but this doesnot preclude the plaintiff from taking another and an inconsistent ground toget over the bar of limitation if he believes that the latter is the trueground. Consequently, in the case before us the plaintiff-respondent isentitled to urge that the suit is not barred by limitation for a reasondifferent from the one assigned in the plaint. The second ground upon which thedecree of the Subordinate Judge is assailed, cannot consequently, be supported.

7. The result, therefore, is that this appeal must beallowed, the decree of the Subordinate Judge reversed and the case remitted tohim in order that he may re-examine the question, whether the plaintiff hasproved the advances alleged by him. The Subordinate Judge will direct the Courtof first instance to take such evidence as may be adduced by the plaintiff insupport of the account books to prove their character and the specific entriesupon which he relies. The defendant will be allowed opportunity to adduce rebuttingevidence. When the additional evidence is received by the Subordinate Judge, hewill consider the case on the merits. It is to be noted, however, that thematter is not to be re-opened in so far as the two sums alleged to have beenadvanced on the 18th December 1903, and 6th August 1904, are concerned. Thispart of the case has been concurrently dismissed by the Courts below and asplaintiff has not filed any cross-appeal, the truth or otherwise of thesealleged payments cannot be re-investigated. The costs of this appeal will abidethe result.

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Hingu Miya vs.Heramba Chandra Chakravarti (08.09.1910- CALHC)