BOMBAY HIGH COURT

                                           Currimbhai Abdulhusain

                                                         Vs

                                             Ahmed Ali Lukmanji

                                  (John Beaumont, Kt., C.J. Blackwell, J.)

                                                   13.09.1932

                                                  JUDGMENT

John Beaumont, C.J.
1. [After setting out the facts his Lordship proceeded:] The next point which the learned Judge
dealt with was the question whether an acknowledgment of the plaintiff's claim made by the
Official Assignee in the insolvency of the defendant could take the case out of the Indian
Limitation Act. That depends on Section 19 of the Act which provides that where before the
expiration of the period proscribed for a suit in respect of any property or right, an
acknowledgment of liability in respect of such property or right has been made in writing signed
by the party against whom such property or right is claimed, a fresh period of limitation shall bo
computed from the time when the acknowledgment was so signed. Now, it is clear that the
Official Assignee is not a party against whom any right or property is claimed; the claim is
against the defendant, and the only claim which could have been made against the Official
Assignee was for a right to prove the debt of the plaintiff and to receive a dividend. So that,
clearly the acknowledgment by the Official Assignee does not come within the body of Section
19. But then Explanation II says that for the purposes of the section, "signed" means signed
either personally or by an agent, duly authorised in this behalf. It has been argued that the
Official Assignee was an agent duly authorised on behalf of the defendant, that is the insolvent,
to acknowledge this debt. It seems to me quite impossible to say that the Official Assignee was
an agent of the insolvent, or that he had any authority to sign the acknowledgment. Mr. Desai
contends that inasmuch as the Official Assignee was the person in whom the property was vested
it must bo inferred that he had authority to sign an acknowledgment on behalf of the debtor, and
reliance was placed on the observation of Mr. Justice Coutts Trotter, as he then was, in
Govindasami Pillai v. Dasai Goundan1 That was a case in which money had been paid into
Court under the Land Acquisition Act, and the Judge paid certain moneys out on behalf of the
owner to a decree holder, and it was held that the Judge must be treated as the agent of the owner
of the moneys so as to make the payment a part payment within Section 20 of the Indian
Limitation Act, That is clearly a different case. One difference is that nobody else could have
made a part payment out of these moneys except the Judge, whereas in this case it would have
been possible for the insolvent himself to have made an acknowledgment. I think that case is not
really an authority which assists us. Mr, Desai has contended that unless the Official Assignee
has authority to acknowledge a debt, creditors may suffer a very serious hardship when an
insolvency is annulled, The insolvency may have gone on possibly for some years, and
meantime the creditors may not have filed a suit, for which they would have to get the leave of
the Court, and may not have troubled to get any acknowledgment, relying on the hope that they
would be paid in the insolvency, and when the insolvency is annulled they may find their debts
statute-barred, Undoubtedly that risk does exist, and I think that it is something in the nature of a
trap which the Insolvency Judge in annulling an insolvency ought to bear in mind, The point has
been dealt with by the legislature in the case of provincial insolvencies, because it is provided in
Section 78, Sub-section (2), of the Provincial Insolvency Act that where an order of adjudication
has boon annulled under the Act, in computing the period of limitation prescribed for any suit or
application for the execution of a decree which might have been brought or made but for the
making of an order of adjudication under the Act, the period from the date of the order of
adjudication to the date of the order of annulment shall be excluded. It is, in my opinion, a matter
for the consideration of the legislature whether similar provisions should not be inserted in an
amendment of the Presidency-towns Insolvency Act. However, we can only deal with the Act as
it stands, and it is, in my opinion, quite impossible to say that an acknowledgment by the Official
Assignee is an acknowledgment made by an agent duly authorised on behalf of the insolvent,
which takes the ease out of the Indian Limitation Act. [The rest of the judgment is not material to
this report.]

Cases Referred.

1(1921) I.L.R. 44 Mad. 971