Promise made in writing | An administrator of the estate agreed to pay 'X' his share of the estate if 'X' would give a promissory note for a portion of a time-barred debt claimed by 'A' from him. 'X' executed a promissory note in favour of 'A'… Who will succeed?

Question: Promise made in writing | An administrator of the estate agreed to pay ‘X’ his share of the estate if ‘X’ would give a promissory note for a portion of a time-barred debt claimed by ‘A’ from him. ‘X’ executed a promissory note in favour of ‘A’, gave it to the administrator, and received his share of the estate.

‘A’ sued ‘X’ on the promissory note. ‘X’ pleads it was without consideration. Who will succeed? [DJS 1996]

Find the answer to the mains question only on Legal Bites. [Promise made in writing | An administrator of the estate agreed to pay ‘X’ his share of the estate if ‘X’ would give a promissory note for a portion of a time-barred debt claimed by ‘A’ from him. ‘X’ executed a promissory note in favour of ‘A’… Who will succeed?]

Answer

Consideration, it is generally said, must be something more than what the promisee is already bound to do. A person may be bound to do something by law or by contract.

As per Section 25(3), a promise to pay a time-barred debt is enforceable. The promise should be in writing. It should also be signed by the promisor or “by his agent generally or specially authorized in that behalf”. The promise may be to pay the whole or any part of the debt. The debt must be such “of which the creditor might have enforced payment but for the law for the limitation of suits”.

The promise referred to in Section 25(3) must be an express one and cannot be held to be sufficient if the intention to pay is unexpressed and has to be gathered from a number of circumstances.

Clause 3 of Section 25 of the Act uses the words “promise made in writing to pay“. Thus it seems that there should be an express promise to pay a barred debt to constitute a contract which may be the basis of the suit.

Various authorities have cited on behalf of the appellant contending that if no express promise to pay is spelt by the writing, such writing cannot be the basis of a suit. “There must be a distinct promise to pay before the document can be said to fall within the provisions of the section.”

In the case of Tulsi Ram v. Same Singh, [AIR 1981 Del 165], a brief note by the promisor on the back of the promissory note written at the expiry of the period of limitation that he had taken the loan and unaccompanied by any words promising or undertaking to pay, was held to be not sufficient to attract Section 25.

Thus, in the present case at hand, applying the aforesaid provisions and case laws, where ‘A’ sued ‘X’ on the promissory note agreed to be paid to ‘X’ for a portion of a time-barred debt claimed by ‘A’ from ‘X’, and ‘X’ pleads it was without consideration, it shall be held to be without consideration only, as it is hit by section 25(3) of the Contract Act.

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Law of Contract Mains Questions Series: Important Questions for Judiciary, APO & University Exams

1. Law of Contract Mains Questions Series Part-I
2. Law of Contract Mains Questions Series Part-II
3. Law of Contract Mains Questions Series Part-III
4. Law of Contract Mains Questions Series Part-IV
5. Law of Contract Mains Questions Series Part-V
6. Law of Contract Mains Questions Series Part-VI
7. Law of Contract Mains Questions Series Part-VII
8. Law of Contract Mains Questions Series Part-VIII
9. Law of Contract Mains Questions Series Part-IX
10. Law of Contract Mains Questions Series Part-X