L. Kesava Chettiar vs M.M. Ramanatha Mudaliar

Ramaswami, J.—This is an appeal preferred against the decree and judgment of the learned District Judge of North Arcot in A. S. No. 377

of 1951 reversing the decree and judgment of the learned Subordinate Judge of Vellore in O. S. No. 41 of 1951 and remanding the suit.

The facts are: The plaintiff is a wholesale merchant carrying on business in yarn at Arni. The defendant is a retailer in the same business at

Kalambur. The plaintiff supplied yarn whenever the defendant wanted and the defendant paid for those supplies and also advanced moneys for

procuring a continuous supply because throughout the period of their transactions there was a State machinery controlling the supply and

distribution of yarn and naturally a wholesaler like the plaintiff could supply in accordance with the scheme and at prices fixed only to retailers who

advanced considerable sums against the anticipated supplies of yarn.

It has to be borne in mind that the wholesaler himself got the quotas allotted only as against cash down. Because of the advances the balances

shifted, being sometimes to the credit of the plaintiff and sometimes to that of the defendant. Finally the wholesaler had to file this suit for recovery

of an amount of Rs. 4371-12-6 due upon mutual accounts and dealings during the period from 29-4-1946 to 26-3-1948. The defence was that

Art. 85 of the Limitation Act did not apply and if it were so there is no dispute that a great part of the transactions relied upon would stand barred

by limitation.

The learned Subordinate Judge held that this was an open, mutual and current account to which Art. 85 did apply and he decreed the suit. There

was an appeal there from by the defendant to the learned District Judge of North Arcot and he held that the account no doubt was on open and

current account but not mutual and that Art. 85 could not apply. Therefore, he remanded the suit for decision upon the question of fact viz., which

transactions were otherwise saved and what was the result of such settlement of accounts. The defeated plaintiff appeals.

There is no dispute that the account between the parties was an open and current account one and the only dispute is whether it was a mutual

one within the meaning of Art. 85 of the Limitation Act. In Chjtaley''s Limitation Act. note (3), page 1440 the distinguishing characteristics of

mutual account have been summarised as follows :

(1) that there should be two sets of independent transactions between the parties in one of which one of the parties should hold the position of

debtor and the other that of a creditor, and in the other, the reverse position.

(2) that the dealings should disclose independent obligations on both sides, and not merely obligations on one side, the acts done by the other being

merely discharges of such obligations, and

(3) that each party must be able to say to the other ''I have an account against you''.

These principles have been embodied in, a judgment of this Court by Holloway Ag. C.J. in - ''Hirada Basappa v. Gadigi Mudappa'', 6 Mad

HCR 142 (A) as follows :

In order that an account might be mutual there must be transactions on each side, creating independent obligations on the other, and not merely

transactions which create obligations on the one side, those on the other being merely complete or partial discharges of such obligations.

The main line of decisions is also to the effect that a shifting balance is not ''per se'' a conclusive test of mutuality. In - ''Shiv Gowda v.

Fernandez'', 34 Mad 513 (B) it was held by White C.J. and Ayling J. that to bring a case within Art. 85 there must be independent obligations

between the parties and that the existence of shifting balances, though important evidence of mutuality, is not conclusive and that there must be

transactions on each side creating independent obligations on the other. The decisions referred to are 6 Mad HCR 142 (A) and - ''Velu Pillai v.

Ghose Mahamed'', 17 Mad 293 (C).

In - ""Fyzabad Bank Ltd. v. Ram Dayal'', AIR 1924 Pat 107 (D) it has been laid down:

Mutual accounts are such as consist in reciprocity of dealings between the parties and do not embrace those having items on one side only though

made up of debits and credits. Although a shifting balance is a test of mutuality its absence is not a conclusive proof against mutuality.

In - ''Mt. Tapibai v. Shanker Lal'', AIR 1939 Nag 113 (E) it has been held:

The absence of a shifting balance is not fatal to the conception of mutuality .The phrase ''reciprocal demands'' in Art. 85 does not import that either

party has made an actual demand in fact. But the dealings must be of such a nature that they might lead to reciprocal demands.

Once a mutual, open and current account is started and there are reciprocal demands that account continues to be mutual so long as the account

remains open and current - The fact that after a certain date the account was one sided cannot turn mutual, open & current account into a non-

mutual, open and current account.

The mutuality results from the reciprocal claims which can spring out of the transactions which once made the account mutual.

In - Firm Mansa Ram and sons Vs. Hira Lal Sanon and Another, it has been held:

The real test in finding out whether a case is governed by Art. 85 is to find out whether the balance was shifting in favour of one party or the other.

If that is the case and it is possible that one day the plaintiff can say that defendant owes him a certain amount and on another day the defendant

can say that the plaintiff is indebted to him, then clearly, it is a case of mutual, current and open account.

For determining the question of mutuality, it is not necessary that there must be large Dumber of transactions between the parties.

There should be two sets of transactions. In one set one party should hold the position of a creditor and the other a debtor, and in the other set the

position should be reversed.

In Uma Shankar Prasad Vs. Bank of Bihar Ltd. and Another, it has been held:

An open and current account between the parties must still be shown to be a mutual account to attract the provisions of Art. 85. Mutual open and

current account means a course of dealing where each party furnishes credit to the other on the reliance that on settlement the accounts will be

allowed, so that one will reduce the balance due on the other.

To be mutual, there must be transactions on each side creating independent obligations on the other, and not merely transactions which create

obligations on the one side, those on the other being merely complete or partial discharges of such obligations.

In - R.N. Kapur, partner of Wright and Co. Vs. The Travancore National and Quilon Bank, Limited (in liquidation) by Official Liquidator and

Others, Leach C. J. observed:

It has been held that a shifting balance is not a conclusive test of mutuality. The importance to be attached to a shifting balance will depend on the

particular facts of the case.

In - ''Abubacker v. I. S. and C. Machado'', AIR 1953

Trav-C 391 (I) it has been held:

An account is open when the balance is not struck or though struck is not accepted or acknowledged to be correct. A shifting balance though a

test of mutuality is nothing more than a test and an account is mutual so long as the transactions on each side create independent obligations on the

other; and a running or continuous account is an account current.

Reference may also be made to - ''Hasanali Kurjibhai v. Ratilal'', AIR 1953 Sau 141 (J) and - ''Lal Chand v. Hindustan Forest Co. Ltd.'', AIR

1954 J & K 49 (K).

It is however stressed on the other side that in Thurutheelakath Thottinakkara Puthia-purayil Kunhi Kuttiali, Karnavan and Manager of the Tavazhi

Tarwad and Main Tarwad and Others Vs. Tharayil Peetikayil Kunhammad and Another, certain language has been used which might perhaps

imply that a shifting balance is conclusive as a test of mutuality. But on a closer examination of this decision it is found that it cites with approval and

follows the decision of the Calcutta High Court in - ''Ram-pershad v. Harbans Singh'', 6 Cal LJ 158 (M) which in its turn is based upon the

principle as enunciated in 6 Mad HCR 142 (A) referred to above.

Therefore, this Bench decision is no authority for urging that a new principle has been enunciated that the mere shifting of balances would render an

account a mutual one even though the conditions enunciated above in the line of decisions and the summary in Chitaley''s Limitation Act are not

present.

Another decision may also be usefully referred to here. That is The Tea Financing Syndicate Ltd. Vs. Chandra Kamal Bez Barua, in which

Rankin C. J. made an analysis of the English cases and held upon the particular facts of that case that the transactions were such as to attract the

provisions of Art. 85. The facts proved in that case were that there were counter-claims arising out of a dual relationship and having independent

origins.

Rearing these principles in mind, if we examine the facts of this case, the pre-requisites set out about are not really satisfied here. It is no doubt

true that there is shifting balance but this is due to the fact that the defendant sometimes paid for the goods received and sometimes paid advances

to ensure supplies of goods in future against those credits. I have already pointed out how in order to secure preference the retailer had to pay

advances to the wholesaler.

But throughout there is only one single relationship viz., that between wholesaler and retailer and there is not even one transaction which arose

independently or could be enforced as such. One test of this is that during the relevant period the defendant could not have filed a suit against the

plaintiff for recovery of the advances as such and independently of the yarn transactions.

The defence cannot also be described as a complete or partial discharge of the obligations within the meaning of the passage enunciated in the tests

in 6 Mad HCR 142 (A). In essence they were related to that obligation and in a certain sense, as pointed out by the learned District Judge, they

may be characterised as payments to ensure the performance of the reciprocal obligations by the wholesaler, that is, the supplies of yarn.

In short these advances did not create independent obligations on the other side which is after all the vital test as properly held by the learned

District Judge. The view taken by the learned District Judge that Art. 85 could not apply to the present case is correct and on that the remand

logically followed.

The learned advocate for the appellant took a point here which was not urged in the lower court viz., that the lower appellate court ought to

have held that as the receipts Exs. A-5 and A-6 were all of them signed by the defendant on each occasion when he made the payments, they

would really save limitation under S. 20 of the Limitation Act inasmuch as they would amount to part payments appearing in the writing signed by

the person liable to make the payment.

In this case apart from the fact that this point was not taken in the lower courts, the so-called receipts are nothing more than vouchers asked for

and given regarding payments made as advances etc. in the yarn business and signed by both the parties and were certainly not payments on

account of a debt made before the expiration of the prescribed period by the person liable to pay the debt. It is only realizing this difficulty that it

has not been put forward in the lower Courts. There is no substance in this contention.

In the result, this appeal is dismissed and in the circumstances without costs. The memorandum of cross-objections is also dismissed and

without costs, and this case having been set down for being mentioned this day, the Court made the following order.

Leave granted.