A.K.S. Muhammad Sultan Rowther and Co. vs Manickam Chettiar

Ramakrishnan, J.—This is a revision petition filed u/s 25 of the Provincial Small Cause Courts Act, against the judgment of the Fourth

Additional District Munsif, Tiruchirapalli, in S. C. S. No. 2378 of 1957. The prior facts necessary for the consideration of the petition are the

following.

The plaintiff is a wholesale dealer who has been supplying goods from time to time on credit to the defendant, a retail dealer. The plaintiff kept a

running account in a ledger for these transactions. The defendant paid amounts towards these purchases from time to time and the payments made

by him were adjusted in the plaintiff''s ledger towards the value of the goods supplied. According to the plaint, the balance of the amount due by

the defendant to the plaintiff on 22-7-1957 was Rs. 59-3-9. This amount together with a small amount for interest represented the suit claim of Rs.

The suit was filed on 4-12-1957. The defendant in his written statement made specific attacks on the accuracy of the extract from his accounts

which the plaintiff had supplied along with the plaint. There was a final plea that the claim was barred by time.

The learned District Munsif, after considering the evidence, gave a finding that the accounts of the plaintiff were correct and that the defendant''s

objections on this score should be overruled. Apparently, there was a plea before the lower court that the transactions amounted to a mutual, open

and current account and the relevant Article of the Limitation Act which has to be applied for the purpose of limitation would be Article 85. The

learned District Munsif rejected this contention. Then he concluded as follows:

....Article 52 of the Limitation Act applied to the present case and the plaintiff cannot claim balances on account of purchases made prior to 4-12-

1954. From the copy of the accounts filed by plaintiff along with his plaint, it is seen that there is no outstanding dues by the defendant in respect of

the sales subsequent to 4-12-1954. In conclusion, I find that the suit claim which relates to delivery ot goods prior to 4-12-1954 is barred by

limitation."" The suit was dismissed. The plaintiff has come up in revision to this court. The plaintiff contended that the court below came to an

erroneous conclusion in the view which it took regarding the application of Article 52 of the Limitation Act. Though there is a ground taken in the

revision petition that the court below erred in holding that the suit claim is not governed by Article 85 of the Limitation Act, at the time of hearing of

the petition this last-mentioned ground was not pressed and the only ground pressed was that though the proper Article to be applied was Article

52, it, was not properly applied by the learned District Munsif, to the facts of the present case.

Article 52 of the Limitation Act reads:

For the price of goods sold and delivered, where no fixed period of credit is agreed upon, three years

and the limitation commences from the date of the delivery of the goods. The learned District Munsif has observed in his judgment that from the

accounts of the plaintiff it was seen that there were no outstanding dues by the defendant in respect of the sales subsequent to 4-12-1954. The

extract from the plaintiff''s ledger filed along with the plaint contains debit and credit columns and also a column for the balance due.

When goods arc delivered by the plaintitt to the defendant, their value is debited to the defendant in the debit column and when amounts are paid

by the defendant to the plaintiff, they are entered in the credit column. The difference is continuously struck in the column for balance. Apparently,

the view of the learned District Munsif is that in such a state of account-keeping, when Article 52 of the Limitation Act is proposed to be applied in

regard to a suit filed on 4-12-1957, the entries prior to 4-12.-1954 in the debit, credit and balance columns of the account should be ignored and

all the entries in the credit column should be adjusted against the entries in the debit column after 4-12-1954 and the plaintitt could realise only the

amount remaining as the excess of debit over the credit. Learned counsel for the plaintiff draws my attention to Sections 60 and 61 of the Indian

Contract Act, which arc in the following terms:

Where the debtor has omitted to intimate and there are no other circumstances indicating to which debt the payment is to be applied, the

creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred

by the law in force for the time being as to the limitation of suits.

Where neither party makes any appropriation the payments shall be applied in discharge of the debts in order of time, whether they are or are

not barred by the law in force for the time being as to the limitation of suits. If the debts are of equal standing, the payment shall be applied in

discharge of each proportionably"".

The plaintiff claimed that since the defendant had not intimated to him as to which of the supplies of goods the payments made by him Irons time

to time should be adjusted, be as, creditor, has enforced his right given in the above sections of adjusting the payments to the value of the goods

supplied in order of time, irrespective of whether such claims are barred or not. The decisions cited before me by the learned counsel for the

defendant Atmaram Vinayak Kirtikar Vs. Lalji Lakhamsi, and Firm Gulabrai Narain Das Vs. Firm Ilahi Bux Mohammad Ayub, lay down the view

that in cases of supply of goods by a tradesman to a buyer, where goods are supplied from time to time and payments are made from time to, lime,

the relevant article of the Limitation Act is Article 52 and that each delivery of goods gives rise to an independent cause of action to recover the

price thereof under Article 52 and that the claim in respect of deliveries which took place more than three years before the filing of the suit was

barred by limitation.

But these decisions do not deal with the question of the right of the plaintiff to appropriate the payments to the outstandings under successive

deliveries of goods in order of time, irrespective of the question whether the claim for the value of such deliveries is barred by limitation or not.

Reference is made to the decision of the Allahabad High Court in (Firm) Puttu Lal Kunji Lal Vs. (Firm) B. Jagannath, , which I find has been

referred to and followed in AIR 1945 AH 185, which lays clown that where payments an? made by the customer from lime to time without

specifying the items of goods to which they are to be credited, the supplier is entitled to credit them to the earlier of the items sold, and will, for the

purposes of limitation be taken to have done so and he is not entitled to credit them to the entire balance due on the dealings in the sense of saving

limitation for each and every item. I am of the opinion that the principle thus enumerated is the appropriate one to be applied to the case on hand.

The further question is, how this principle has to be applied to an account of the present kind. The amounts credited from time to time will go to

Wipe off the debits against the goods supplied from time to time until we reach a particular delivery of goods on a particular date which remains

unadjusted either in whole or in part by the above procedure. If the date corresponding to the delivery which remains thus unadjusted, in whole or

in part, is beyond three years from the date of the suit, the claim in respect of that amount will remain barred under Article 52 of the Limitation Act.

But if the date corresponding to that delivery and the dates of subsequent deliveries which remain unadjusted, fall within the three-year period of

limitation, the claim for the corresponding amounts will be in time. Applying the aforesaid principle to the plaintiff''s statement of account (which the

learned District Munsif has found to be correct and acceptable) I find that the payments on the credit column are sufficient to wipe off all

outstandings on account of the deliveries made prior to 4-12-1954.

Therefore, there is no question of the value of any of the deliveries made in this case being barred by time. The suit claim is in effect for the balance

due after the plaintiff has exercised his right of appropriating the payments made from time to time against deliveries made from time to time in the

order of time of the deliveries, according to the right given to the plaintiff to make such appropriation under Sections 60 and 61 of the Indian

Contract Act. The suit claim is laid for the balance remaining outstanding and I hold that it is in time. The suit is decreed with costs and this revision

petition is allowed with costs.