Kesarichand Johr Mull vs Mukteswar Trigunait and Others

Kulwant Sahay, J.—This is an appeal by the plaintiff and is directed against the decree of the Subordinate Judge at Dhanbad, dated 17th May 1927, whereby he dismissed their suit for recovery of a sum of money OH account of principal and interest alleged to have been due from the; defendants on account of certain transactions of sale of cloth, gold and silver and cash advanced from time to time by the plaintiffs to the defendants.

The plaintiffs'' case was that they had a firm at Katras and that transactions commenced with the defendants on 15th Chait Sudi 1874 and continued up to 12th Chait Sudi 1930 Sambat, It is alleged that there was an adjustment of account on 7th Asarh Sudi 1976 Sambat when the defendants paid up the entire amount found due on account of principal and interest, that thereafter the transactions commenced again and continued up to 12th Chait Sudi, 1980 on which date it is alleged that there was another adjustment of accounts and the defendants paid a sum of Rs. 500 by means of a cheque drawn on 28th March 1923 and that the balance remaining duo on that date on account of principal and interest was Rs. 585-14-6. The plaintiff''s claim is valued at Rs. 9,607-1-6, being the amount found due on the second adjustment with subsequent interest. The defence of the defendants was that they had no ''business transaction with the plaintiff''s firm, that there was no adjustment of accounts and no payment as alleged by the plaintiffs and nothing was due to the plaintiffs from the defendants, and that the claim of the plaintiffs was barred by limitation.

The defendants admitted that they had business transactions with one Badri Narain Marwari and that this business was closed many years ago and that a sum of about Rs. 600 was due to Badri Narain from, them, but Badri Narain having died and no one on his behalf having made a demand for the money due and as it could net be ascertained who was entitled to the money the defendants could not pay the same and that the claim for that money even was barred by limitation. The learned Subordinate Judge has found that there were business transactions between the plaintiffs'' firm and the defendants and that Badri Narain Marwari was a mere servant of the plaintiffs working in their firm at Katras.

He has, however, found that the plaintiffs have failed to prove that the sum claimed by them was actually due. In the first place he found that the account books filed by the plaintiffs contained many mistakes and were not reliable. In the second place he found that the plaintiffs were claiming interest at 2 per cent per month compoundable every year on the basis of an agreement alleged to have been entered into between the parties at the time the transaction commenced, but that this agreement to pay interest at 2 per cent per month was not proved. He found that the amount really due to the plaintiffs was a sum of Rupees 626-9-9 as shown in a statement of accounts handed over to the defendants on the death of Badri Narain Marwari and this was the only sum to which the plaintiffs were entitled. He, however, held that the plaintiff''s claim was barred by limitation and he accordingly dismissed the suit.

It is contended on behalf of the plaintiffs-appellant that the learned Subordinate Judge was wrong in holding that the sum due to the plaintiff was only Rs. 626 and odd, that he was further wrong in holding that there was no adjustment of accounts on 12th Chait Sudi, 1880, and that the payment by the cheque on 28th March 1923 did not save the suit from the bar of limitation. The learned advocate on behalf of the appellants has also argued the question as regards the agreement to pay interest. On the side of the defendants-respondents, objection has been taken to the finding of the learned Subordinate Judge that Badri was a mere servant of the plaintiff, and it has been argued that the evidence shows that there was no transaction between the plaintiffs and the defendants and that the transaction was between the defendants and Badri Narain Marwari who had no connexion with the plaintiff.

I may dispose of the last objection at the outset. The finding of the learned Subordinate Judge that Badri was a mere servant of the plaintiff is based not only upon the evidence of the witnesses examined on behalf of the plaintiff in the present case but also on a statement of Badri himself contained in the deposition (Ex. 9) in suit No. 376 of 1920 which as it appears from Ex. 10 was a suit between the present plaintiff and certain other debtors. In the course of his deposition in that suit Badri stated that the plaintiff''s firm had got a shop at Katras and that he was a servant of the firm. This statement of Badri supports the statement of the witnesses examined by the plaintiff in the present case. Plaintiff Johr Mull states on oath that Badri had no concern with this firm except as a gumasta and that he had no share in the firm, and Chhogon Lal (P.W. 6) states in cross-examination that Badri told him that he was a servant. I would therefore uphold the finding of the Subordinate Judge on this point and hold that Badri was a mere servant of the plaintiffs and that the transactions were really with the plaintiffs'' firm.

The next point to be considered is as regards the agreement to pay the interest. The learned Subordinate Judge has considered the point at great length, and I agree with the reasons given by him for holding that the alleged agreement has not been established. In fact the learned advocate for the appellants did not press the point with any seriousness. No evidence has been given from which the agreement can be inferred. The witnesses examined by the plaintiffs do not pretend to know the terms upon which the transaction between the parties started. No evidence of any writing of the defendants relating to the terms of the agreement is forthcoming and no attempt has been made to prove what was the interest or rate of interest charged at the time 0of the first adjustment in Asarh 1976 Sambat. I therefore accept the finding of the learned Subordinate Judge that the alleged agreement as regards the term to pay interest at 2 per cent per month with yearly rest has not been established.

The next question is as regards the amount actually due to the plaintiffs. In order to prove the amount claimed the plaintiffs have produced certain account books and have examined certain witnesses. Their witness Sheo Chand, who says that he has been a servant of the plaintiffs from the very beginning, proves the items in the account books.

In examination-in-chief, however, he was not asked whether the items proved by him were actually made over to the defendants in the case of cloth, gold and silver, or whether the sums alleged to have been advanced were actually advanced. This defect in examination-in-chief, however, appears to have been supplied by a question put to the witness in cross-examination by the defendants'' lawyers which in answer to that question the witness stated that the articles were made over to the defendants. The witness, however, states that there are mistakes in the several entries which he had proved and he could not say that mistakes were found when the adjustment was made. The learned Subordinate Judge says that he examined the accounts in detail and he found various mistakes, some of which are noted in the judgment. The learned'' advocate for the appellants has not taken us though the various items and he made no attempt to show that the finding of the learned Subordinate Judge was wrong in this respect. It is clear, therefore, that no decree can be made in favour of the plaintiffs on the basis of the entries in the account books.

It appears, however, that after the death of Badri Narain a statement of account was banded over to the defendants. The defendants produced the firds, as they are called, made over to them and the plaintiffs have got those firds marked as exhibits on their behalf and they are Ex. 8 series in the present suit. Having regard to the fact that Badri had been found to be a servant of the plaintiffs, it is, I am of opinion, only fair to assume that the statement of accounts was made over to the defendants on behalf of the plaintiffs'' firm. The defendants never made any protest and in fact made a payment of Rs. 500 by cheque. The defendants must, therefore, be held liable for the sum of Rs. 626-9-9 found to be due under Ex. 8. In fact the defendant Mukteswar in his evidence admits that he owes Badri Rs. 600, according to the accounts. It being found that Badri was a servant of the plaintiffs, the statement amounted to this, that Rs. 600 odd is due to the plaintiffs from the defendants and this is the only sum which the plaintiffs can recover.

The only question that remains for consideration is the question of limitation. The plaintiffs rely in the first instance on the second adjustment, which is alleged to have been made on 28th March 1923. The suit was instituted on 26th March 1926, and it is contended that as the suit was instituted within three years of the date of the adjustment, it was not barred by limitation. Secondly it is contended that the payment of Rs. 500 by the cheque on 28th. March 1923 in any event, saved the limitation u/s 20. Lim. Act. As regards the adjustment, the learned Subordinate Judge has found that it has not been proved. In nay opinion the learned Subordinate Judge was right, and all that has been established, in the case was that there was a statement of account made over to the defendants, but there was no actual settlement of the accounts between the parties. It is very doubtful whether an adjustment of the nature set up by the plaintiffs in the present case would give a fresh start of limitation, the adjustment not being a settlement of mutual and current account between the parties. I am, however, of opinion that the second contention of the appellants must prevail. The cheque for Rs. 500 was admittedly made over by the defendants on 28th March.1923. The blank spaces in the printed form of the cheque as regards the date, the name of the payee and the amount were filled in the English by some clerk and the cheque was signed in Bengali by Bhubneshwar Trigunait who could not write in English.

It is contended on behalf of the defendants that as this was not a payment towards interest but a part payment towards the principal, it can only save limitation if it is shown that the payment was by means of endorsement in the handwriting of the person making the payment. On behalf of the plaintiffs it is contended that the signature of Bhubneshwar Trigunait on the cheque, which is admittedly in his own handwriting, is a sufficient compliance with the'' proviso to Section 20, and reliance has been placed upon Kedar Nath v. Dinabandhu Saha [1915] 42 Cal. 1043 where it was held by Jenkins, C.J. and Woodroffe, J. agreeing with the decision of Chaudhury, J. that the cheque in the handwriting of the person making the payment is sufficient compliance with the proviso to Section 20. It is, however, contended that from the judgment of that case it does not appear that the body of the cheque was not filled in the handwriting of the person who had made the payment as in the present case, but that it appears from the judgment of Chaudhury, J. that the whole of the cheque was in the handwriting of the person making the payment. In the first place, it is not clear from the judgment whether the whole of the writing was in the handwriting of the person making the payment or whether the signature only was in his hand. But assuming that that was so, I am of opinion that the signature of the person making the payment on the cheque is a sufficient compliance with the proviso to Section 20, Lim. Act, although the body of the cheque might be written up by a different person. The learned advocate for the respondents, admitted the correctness of the decisions where it has been held that if the person making the payment be illiterate and the endorsement be in the writing of another person and a mark be made by the person making the payment in token of his signature to the endorsement, such mark is a sufficient compliance with the proviso to Section 20, Lim. Act. If that he so, I fail to_ see on what principle the signature of a person upon a cheque, the body of which is written by a different person, can be said not to comply with the proviso to Section 2.

Reference has been made on behalf of the respondents to the Full Bench decision of the Calcutta High Court in Mukhi Haji Rahmutulla v. Goverji Bhuja [1896] 23 Cal. 516. The decision of the Pull Bench in that case expressly left the question now before us undecided. The question referred to the Full Bench was whether the decision of the Calcutta High Court in Small Cause Court reference No. 2 of 1885 was correct. That deci-sion, so far as it is material for the purpose of the present suit, was in these terms:

As to the second question, we think that as the entry of the payment was made by the Sircar by the order and under the direction of the defendants, the suit is not barred by limitation.

And the referring Judges were unable to agree with that decision. The Full Bench in that case held that the decision in Reference No. 2 of 1885, quoted above, was not correct. The facts of the case, however, in which the reference was made were these: The suit was brought for the amount of a balance due by the defendant to the plaintiff in respect of certain contracts. The suit was barred unless it was kept alive by a payment which was made to the plaintiffs on 10th April 1893 by one Haji Hossein Ismail who was the defendant''s agent. An entry of the payment was made in the cash book of Haji Hossein Ismail showing the payment as made to the plaintiffs on behalf of the defendant.

The question which arose in the case was whether the entry of payment made by Haji Hossein Ismail in his own books was a sufficient writing within the proviso to Section 20, Lim. Act. Reference was made on behalf of the plaintiff in that case to certain Madras cases where it was held that a signature by a marksman to what was in the handwriting of another person was sufficient to satisfy the provisions of the Act, and the referring Judges said that it was enough to say that those cases did not apply to the casa before them, In connexion with this point the Pull Bench observed as follows:

With reference to the Madras cases we only desire to say that we do not deal with those cases in any way; they are outside the subject of this ease.

Therefore, the Pull Bench expressly left undecided the question as regards the effect of an endorsement being signed and not written in whole by the person making the payment. The Full Bench case, therefore, is no authority in support of the contention of the respondents. The decision in Santishwar Mahanta v. Lakhikanta Mahanta [1903] 35 Cal. 813 no doubt supports the contention o� the respondents; but the learned Judges there relied upon the Pall Bench decision just referred to which, however, had left the question open. Reference has also been made on behalf of the respondents to Lodd Gobindoss Krishna doss v. Rukmani Bai [1915] 38 Mad. 438 and to Niwajkhan Nathankhan v. Dadabhai Musse Valli [1917] 41 Bom. 166. These oases also support the contention of the respondents; but in all these cases reference is made to the class of cases where it has been held that when the person making the payment on account of being illiterate cannot make the endorsement his mark is a sufficient compliance with the proviso to Section 20 and no disagreement is expressed from the view taken in that class of cases. No intelligible reason has been suggested to distinguish the case of a person signing an endorsement made by another person from that of an illiterate person putting his mark to an endorsement made by another parson. In my opinion the signature of Bhubneshwar Trigunait upon the cheque in the present case in Bengali, when it has been proved that he was unable to write English, was sufficient compliance with the proviso to Section 20. I would, therefore, hold that the signature of Bhubneshwar Trigunait on the cheque drawn by him on 28th March 1923 was an endorsement within the meaning of the proviso to Section 20, Lim. Act, which saved the suit from limitation. As was pointed out by the Pull Bench in the Calcutta case referred to above, the object was to secure an evidence in the writing of the person making the payment and not to rely upon mere oral evidence as regards payment. The signature of the person making the payment upon the cheque drawn by him is the best evidence in writing as regards the payment made by the person making the same.

The result therefore is that it must be held that the suit of the plaintiff is not barred by limitation and he is entitled to a decree for Rs. 626-9-9; he is also, in my opinion, entitled to simple interest by way of compensation at the rate of 1 par cant per month, from 28th March 1923 up to the date of the suit, and thereafter, interest at 6 per cent per annum on the total amount, principal with interest that may be found due on taking account. I would, therefore, allow this appeal and make a decree in favour of the plaintiffs for the sum stated above. The plaintiffs would be entitled to proportionate costs in this Court as wall as in the Court below.

Adami, J.

I agree.