The only point in this appeal is one of limitation. It relates solely to the precise effect of Ex. E. 1 which is alleged to operate as an acknowledgment of a liability under S. 19 of the Limitation Act. In these circumstances it is most regrettable that the appellant has failed to have this document either translated by Court or printed for the use of the Court. Had it not been for the accident that a translation made for the benefit of the lower Court has been found in the record, the disposal of the appeal would have been seriously impeded. The omission to translate and print the necessary documents is so prevalent in this Court that I feel it necessary to take the only action which is available to me, i.e., to take into consideration such deficiencies in the record of the appeal when dealing with the question of costs.

The appellant leased the right to collect rents in the village to the respondent. The lease was by a registered document covering faslis 1331 to 1335. For the 1st two faslis the collections were made properly but in fasli 1333 trouble began and after fasli 1334 the lease was cancelled. The suit was for amounts due in respect of collections for faslis 1333, and 1334 due respectively on 30th June 1924 and 1925. The suit was filed on 1st September 1931 and it is clearly barred unless the plaintiff can rely upon the alleged admission contained in Ex. E-1 which is dated 10th December 1925. Ex. E-1 was a notice issued by the respondent in reply to another notice Ex. D sent by a lawyer on behalf of the appellant. Paragraph 5 of Ex. D contains a statement of the amounts due for these two faslis in respect of rent and peishcush payable by the respondent, crediting the amounts actually paid, debiting interest and claiming as balance Rs. 2,247 and odd. In Ex. E-1 the respondent acknowledges receipt of this notice, objects very strongly to the agent employed by the appellant, and alleges malice on his part, denies that the respondent is liable for the amount referred to in paragraph 5 of the notice and then proceeds to recite the various amounts claimed by way of set off against the rent of these faslis on account of the action of the proprietor in granting remissions, making collections and so on; and finally it recites that there had been a mediation at which it was arranged that the respondent and the appellant should tally their accounts in person and after going into the accounts, it would be seen whether upto the end of fasli 1334, the respondent owes anything to the appellant or the appellant has to pay the respondent. The respondent also points out that the settlement must be made personally with the appellant and not with his agent. The respondent concludes the notice by repeating that he is not liable to pay the amount claimed in paragraph 5 of the notice and that upto the end of the term of the lease he is prepared to answer what is asked by the proprietor.

The lower appellate Court has concluded that this communication is a denial of liability. It is contended for the appellant that it is an admission of the existence of an unsettled account and that by inference it is an admission of liability to pay anything that may be found due on the settlement. Reading the notice as a whole, I have no doubt that what the respondent intended to do was to repudiate the calculations contained in paragraph 5 and to claim that various amounts had to be credited on account of the interference of the proprietor and other matters and to express willingness to have the accounts settled with the proprietor in person, and it expresses a doubt whether anything would be due from him if this were done. Can this be taken as an admission of liability sufficient to save limitation for the present suit which is framed as a suit for the balance due on an account The leading cases on the matter have been put before me. Firstly there is In Re River Steamer Company (1871) 6 Chan. App. 822) where it was held that an allegation that an account if taken would show an available balance to the defendant coupled with an expression of willingness to have the matter referred to arbitration was not an admission sufficient to take the case out of the statute of limitation, the reason being that the defendant really denied liability and admitted the right only to have the matter settled by arbitration which had not been done. In disposing of the suit Mellish L.J. points out that for an acknowledgment to be operative there must be (1) an admission of a debt from which a promise to pay can be inferred, or (2), an absolute promise to pay, or (3) a promise to pay upon a condition which has been proved to have been fulfilled. It was held that the last clause could not be applied to the facts of that case because the promise to pay conditionally on the appointment of an arbitrator and his decision being taken, had no been fulfilled. This case is quoted with approval by the Privy Council in Maniram Seth v. Seth Rupchand (33 Cal. 1047. (P.C.), where the Privy Council had to deal with an admission made in an unconnected proceeding which ran in the following words:

for the last five years he had open and current accounts with the deceased the alleged indebtedness does not affect his right to apply for probate.

It was held that there was a clear admission that there were open and current accounts between the parties at the relevant date and the legal consequence would be that on that date either party had the right as against the other to an account and it followed that whoever on the account should be shown to be the debtor to the other was bound to pay his debt to the other; and their Lordships deduced an admission that the respondent acknowledged his liability to pay his debt to the deceased if the balance should be ascertained to be against him.

It is very difficult to distinguish the present case from the above ruling. We have here an admission of the accountability by the respondent to the appellant, an admission that on the date of Ex. E-1 the account was not settled, an expression of willingness to have it settled with the appellant and a query whether anything would be due as a result. The denial of the liability contained in Ex. E-1 is in my opinion no more than a denial of liability to the extent asserted in paragraph 5 of Ex. D and cannot be read as a total denial of liability for any amount which may be found due. It seems to me that the ruling just referred to is clear authority for the view that the admission of the existence of an open account and an expression of willingness to have it settled implies an admission of liability for the amount which may be found upon the settlement.

A similar admission was considered in Sitayya v. Ranga Reddi (10 Mad. 259) which is cited with approval by the Privy Council in the case previously referred to. There the admission was contained in a memorandum to the effect that the account furnished by the plaintiff was ncorrect and that the account had to be settled between the parties in person. It was held that though there was no admission that any amount was due, there was an acknowledgment that the accounts had to be taken and that the defendants were liable for any balance that might be due on the taking of the account. The respondent quotes the case of Andiappa Chetty v. Alasinga Naidu (36 Mad. 68) as authority for the proposition that the right which is acknowledged in the memorandum relied upon to save limitation must be of the same description as the right upon which the suit is based and it is argued that even if Ex. E-1 acknowledges the right of the appellant to have a settlement of the account and presumably to recover whatever is due on that settlement, the present suit is not a suit for an account but really a suit for a definite sum of money. But the plaint seems to me to be based quite clearly on this account. It purports to give the amount due according to the lease, the amount due for interest, the amount to be credited to the defendant for payments made and claims only the balance. In such a suit it is open for the defendants to plead any payments which have not been credited or to claim any set off which might be due as a result of the remissions given by the appellant. To my mind the suit is essentially in respect of a right which is admitted to exist by Ex. E-1 and therefore the suit can be maintained within 6 years from the date of Ex. E-

1. It follows that the appeal must be allowed, and the suit remanded to the lower appellate Court for disposal after recording findings on the remaining issues. As I have already indicated I disallow the appellants costs for the reason that he has not provided a translated and printed record of the essential documents required for the disposal of this appeal. Court-fee paid on the memorandum of appeal will be refunded.

(Leave to appeal is refused).