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Judgment
Varghese Kalliath, J.—Defendant is the Appellant. The suit was for recovery of money based on accounts. Plaintiff claimed that he is entitled to recover an amount of Rs. 3,363.40 from the Defendant. The trial Court partially decreed the suit. Both the Plaintiff and Defendant were dissatisfied with the decree of the trial Court. So, both filed appeals. The appellate Court allowed the appeal filed by the Plaintiff and dismissed the appeal filed by the Defendant. Thus, now there is a decree against the Defendant allowing recovery of the amount claimed by the Plaintiff. The Defendant appeals.
The learned Counsel for the Appellant raised two points in this appeal. He submitted that the Court below went wrong in declining to accept the defence pleaded by the Defendant that the suit is barred by limitation. Further, he submitted that the Courts below have wrongly applied Section 34 of the Evidence Act to the facts of the case.
Apparently, both these points are in the range of pure questions of law and so I should examine these questions. The Plaintiff contended that the nature of the transaction between the Plaintiff and the Defendant which has given rise to the suit conforms to the description of the suit in Article 1 of the Limitation Act. Article 1 of the Limitation Act reads thus:
Description of suit Period of limitation Time from which period begins to run
For the balance due on a mutual, open and current account, where there have been reciprocal demands between the parties Three years The close of the year in which the last item admitted or proved is entered in the account; such year to be computed in the account.
The transaction between the Plaintiff and the Defendant, according to the Plaintiff plainly and clearly discloses that the claim in the suit is for the balance due on a mutual open and current account, where there have been reciprocal demands between the parties.
The Plaintiff is a limited company which used to advance money to its customers for agricultural purposes on the agreement that the customers should deliver their agricultural produce to the Plaintiff. As per the terms of the agreement, the Plaintiff is obliged to sell the produce and remit the amount in the account of the customer and adjust and set of the amount due to the Plaintiff and pay the balance amount to the customer. This obligation to effect the sale of the produce of the customer and account the sale produce and payment of balance created a reciprocal demand in the customer. If the proceeds of the sale of the agricultural produce is insufficient to wipe off the advance made, it will stand as a debt due to the Plaintiff from the agriculturist and if the proceeds of the sale exceeds the amount due to the Plaintiff it will remain as a debt of the Plaintiff due to the customer-the Defendant.
In this case, it is said that the last date of the borrowing (the advance made by the Plaintiff) was on 13th May 1971 and the last of the consignment of the agricultural produce by the Defendant to the Plaintiff was on 4th April 1971. The suit was filed on 21st June 1971. The Plaintiff has stated that the cause of action for the suit arose on and since 30th June 1972 (the end of the accounting year for 1971-72). It has to be noted that the starting point of limitation if Article 1 of the limitation Act is applicable is �the close of the year in which the last item admitted or proved is entered in the account; such year to be computed as in the account�.
Both the Courts, after an evaluation of the evidence and the circumstances involved in the case, held that the article that applies for determining the period of limitation for the suit is Article 1 of the Limitation Act and found that the suit is not barred by limitation.
The learned Counsel for the Appellant very emphatically submitted that both the Courts below have not properly understood the width, scope and range of Article 1 of the Limitation Act and the decided cases of Supreme Court and this Court on this article. In this context, I feel that I must examine the true content of Article 1 of the Limitation Act. This requires a little tracing of the history and principle behind this article. This article takes its rationale from the observations in an old English decision Catling v. Skoulding (1795) 101 E.R. 504 (506), decided as early as in 1795. Lord Kenyon in that decision observed thus:
Here are mutual item of account, and I take it to have been clearly settled as long as I have any memory of the practice of the Courts that every new item and credit in the account given by one party to the other is an admission of there being an unsettled account between them, the amount of which is afterwards to be ascertained; and any act which the jury may consider as an acknowledgment of its being an open account is sufficient to take the case out of the statute.
In 1859 Limitation Act, the Indian Law accepted the principle enunciated in Catling v. Skoulding (1795) 101 E.R. 504 (506) but confined it to between merchants and traders and provided that �in suits for balances of accounts current between merchants and traders, who have had mutual dealings, the cause of action shall be deemed to have arisen at, and the period of limitation to be computed from, the close of year in the accounts of which there is the last item admitted or proved indicating the continuance of mutual dealings.� Article 85 of the 1908 Act as well as Article 87 of 1871 Act extended this principle to suits on mutual accounts between all persons. Article 1 of the present Act corresponds to Article 85 of the 1908 Act.
The principle behind this Article 1 is to give a wider and extensive application of the principle of acknowledgment in regard to certain types of cases for the purpose of extricating the Plaintiff from the shackles of limitation running against each item from its date, and to provide that if the last item is within time it will take in its trail the previous items however old they may be, although there has been no specific acknowledgment or payment sufficient to attract and to comply with the conditions required under those sections dealing with acknowledgment of debts (Sections 18 and 19). It is significant to note that this article is singularly silent about when the right to sue has accrued. This article has nothing to do with the date on which the right to sue accrues.
The learned Counsel for the Appellant invited my attention to a decision The Hindustan Forest Company Vs. Lal Chand and Others, . This decision has approved and followed the decision of Rankin, C.J. in The Tea Financing Syndicate Ltd. Vs. Chandra Kamal Bez Barua, Tea Financing Syndicate Ltd. v. Chandrakamal. The Supreme Court said that "the observation of Rankin, C.J. has never been dissented from in our Courts and we think it lays down the law correctly". It is apposite to understand this decision in the light of what has been said by Rankin, C.J. in The Tea Financing Syndicate Ltd. Vs. Chandra Kamal Bez Barua, . It is stated thus:
...where each party has received and paid on account of the other, is by no means the only type of case coming within Article 85. Perhaps the simplest and commonest case of all is that if two merchants each supplying goods to the other. But the cases already referred to show that the cross claims may be rent and wages, rent and liquor supplied, money let and proceeds of sale of goods. The conditions of the applicability of Article 85 are not I think obscure. There must be cross claims arising out of a course of dealing which evidences or is referable to an intention of set off. The phrase ''reciprocal demands does not import that either party has made an actual demand in fact.
An analysis of the requirements stated in the above quote plainly gives the following integrants: (i) there must be a course of dealing between the Plaintiff and the Defendant; (ii) there must be cross claims; (iii) evidence of an intention of set off; and (iv) reciprocal demands do not require an actual demand in fact. It has to be noted that the cross claims can be rent and wages, rent and liquor supplied, money let and proceeds of sale of goods. As I said earlier, the case that has been now found by the Courts below is that the Defendant is under an obligation to deliver agricultural produce to the Plaintiff for the purpose of sale, with the intention to set off the claim of the Plaintiff who has advanced money to the Defendant.
I may now refer to the facts of the case considered in The Tea Financing Syndicate Ltd. Vs. Chandra Kamal Bez Barua, . There, the parties entered into an agreement whereby the Plaintiff was obliged to advance certain amounts to the Defendant. An apex limit was fixed at Rs. 80,000. The agreement provided that the amount has to be advanced on the security of the entire crop of tea estate for the year 1920. Pursuant to the agreement between the parties, the Company advanced various sums of money from time to time and also spent on account of the Defendant various sums of money. The Defendant as per the agreement was obliged to consign his tea to the Company for sale by public auction in Calcutta and accordingly the Defendant consigned his tea from time to time to the Plaintiff-company. It is further seen that the proceeds were credited to the Defendant as soon as the sales were effected. The company found that some amount was due from the Defendant even after adjusting the proceeds of the sale of tea. In these circumstances, the question arose as to whether the transaction can be treated as a transaction coming within the meaning of the provision in Article 85 of the Limitation Act, which corresponds to Article 1 of the present Limitation Act. Rankin, C.J. said:
The Plaintiff''s liability to account to the Defendant for the proceeds of the tea sold by them was as independent obligation and the circumstance that they were expected and intended to apply such sums as would be necessary in liquidation of their advances does not mean that this was an account in which the obligations were all on one side as distinct from an account in which there are cross claims or reciprocal demands. Article 85 must therefore be applied to the facts of this case.
The learned Counsel for the Appellant wants me to specifically note the comment made by the Supreme Court when reversing the judgment of the High Court on the reasoning of the High Court in the case reported in The Hindustan Forest Company Vs. Lal Chand and Others, . The Supreme Court said:
This reasoning is clearly erroneous. On the facts stated by the learned Judges there was no reciprocity of dealings there were no independent obligations. What in fact had happened was that the sellers had undertaken to make delivery of goods and the buyer had agreed to pay for them and had in part made the payment in advance. There can be no question that in so far as the payments had been made after the goods had been delivered, they had been made towards the price due. Such payments were in discharge of the obligation created in the buyer by the deliveries made to it to pay the price of the goods delivered and did not create any obligation on the sellers in favour of the buyer. The learned Judges do not appear to have taken a contrary view of the result of these payments.
The learned Counsel for the Appellant submitted that the fact that the Defendant has got an obligation to pay the amount advanced by the Plaintiff and that he discharges that obligation by supply of goods, will not be sufficient for attracting the provision contained in Article 1 of the Limitation Act. But, in this case, what has been held by the Courts below on an appreciation of evidence, is that the Plaintiff advanced money on the agreement that the agricultural produce will be supplied to the Plaintiff and that the sale proceeds of the agricultural produce can be adjusted towards liquidation of the debt due to the Defendant. There was an independent obligation on the para of the Plaintiff to account to the Defendant for the proceeds of the agricultural produce delivered by the Defendant. The appellate Court has found that the account between the parties would show that there are reciprocal demands between them.
What is singularly required to attract the application of Article 1 of the Limitation Act is "reciprocity of dealings" which I understand as mutual dealings which will create independent obligations arising out of mutual credit founded on subsisting debt on the other side. The test to decide whether Article 1 is applicable is to see whether the obligation is always one sided or not. If it is always one sided, the Article has no application. If both parties have obligations to be discharged between them certainly the transactions would create reciprocal demands also and so the Article will come into operation.
The Hindustan Forest Company Vs. Lal Chand and Others, has been referred to and followed in Kesharichand Jaisukhal Vs. The Shillong Banking Corporation, . In this case, the Supreme Court has quoted with approval the observations of Holloway Ag. C.J. in Hirada Basappa v. G. Muddappa 6 H.C. 142 at page 144. This observations reads thus:
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 Kesharichand Jaisukhal Vs. The Shillong Banking Corporation, the Supreme Court has observed that in order to attract Article 1 of the Limitation Act, there should be mutual dealings between the parties. The Court said thus:
The Respondent Bank gave loans on overdrafts, and the Appellant made deposits. The loans by the Respondent created obligations on the Appellant to repay them. The Respondent was under independent obligations to repay the amount of the cash deposits and to account for the cheques, hundies and drafts deposited for collections, There were thus transactions on each side creating independent obligations on the other, and both sets of transactions were entered in the same account.
learned Counsel for the Appellant submitted that the pleadings in this case are insufficient to satisfy the requirements for attracting Article 1 of the Limitation Act. It has to be noted that in paragraph 4 of the plaint, the Plaintiff has stated that the Defendant used to receive advance for agricultural purposes, agreeing to consign areca to Plaintiff for sale on commission and to pay the balance with interest at the usual rate of interest and that the transaction between the Plaintiff and the Defendant are entered in the accounts of the Plaintiff regularly kept in the course of the business. Further, in the plaint, the Plaintiff has stated that the cause of action in the suit arose on and since 30th June 1972, 30th June 1972 being the end of the accounting year for 1971-72.
I feel that the circumstances and the evidence revealed in the case will show that the transaction between the Plaintiff and the Defendant is a transaction which will come within the provision of Article 1 of the limitation Act. I do not think that the Courts below have committed any error on this point. There is a clear finding by the appellate Court that the account between the Plaintiff and the Defendant is a mutual, open and current account since there are reciprocal demands between them. Further, I have to say that a finding on a question of limitation recorded by the final fact finding Court, on an appraisal of evidence, after taking into consideration the entire circumstances of the case, is a finding of fact, which cannot be set aside by the High Court in the exercise of the power u/s 100 of the Code of Civil Procedure. This is what has been said in Dudh Nath Pandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali (Dead) by Lrs, .
The second question raised by the counsel for the Appellant concerns the application of Section 34 of the Evidence Act. Section 34 of the Evidence Act runs, thus:
Entries in books of account when relevant.-Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
The finishing words of the section "shall not alone be sufficient evidence to charge any person with liability" certainly indicate that the evidence of the entries in books of account, though are relevant, cannot be treated as independent and substantial evidence. The evidentiary value of the entries in the account book must therefore be corroborative supportive or confirmatory in nature. So if an entry in the Books of Account regularly kept in the course of business, is proved, it is merely corroboration of the evidence given by witnesses who have spoken to the facts of the claim. This section evidently makes an exemption to the doctrine that "a man cannot make evidence for himself". Wigmore says the principle of admissibility of parties account books shows a recognition of the two traditional features of hearsay exceptions in general, namely, the necessity principle and the circumstantial guarantee of trustworthiness. To attract this section, it has to be proved that the accounts are written in a book and that book must be a book of account and that account must be one regularly kept in the course of business. To say that the account is regularly kept in the course of business, it requires that the accounts are kept according to a set of rules or a system.
In Sankaran Ezhuthachan v. Velayudhan Ezhuthachan ILR 1978 Ker 619. Vadakkel, J. has said:
...law presumes that when accounts are maintained systematically, that is to say, following an established practice, or in the language of the statute, where they are kept ''regularly in the course of business'', the regularity in or the systematic manner of maintaining such accounts would ensure their general accuracy and would prevent chances of misstatements and falsification. Therefore, if disputed, it has first to be ascertained whether the books of account have been regularly kept in the course of business. The enquiry here is not whether the particular entry is correct and true but as regards the regularity of keeping accounts or in other words the system or practice of maintaining them.
The counsel for the Appellant did not submit before me that the accounts can be impeached on the ground that those accounts are not regularly kept in the course of business. There is no case for the Appellant that the entries in the books of account are not relevant for the matters to be decided in the case. But he contended that the books of account as a whole and certain particular entries have not been proved properly. He said that the books of account have been produced and marked in the case by examining not the person who has made the relevant entries in the book, but by the Inspector of the concerned depot of the Plaintiff. The witness who proved the books of account has deposed that the person who has entered the relevant entries is not available for examination and that the witness is familiar with the handwriting of the person who has written the books of account and that the books of account are kept in the regular course of business. Mukherji, J. in Aktowli v. Tarak 17 C.W.N. 744 has said that the proper procedure to follow in the matter of proving the account books is to call the clerk who has kept the accounts or some person competent to speak their genuineness to prove that the books have been regularly kept and they are generally accurate. For the above proposition Mukherji, J. has relied on Dwaraka Dass v. Janki Dass 6 M.I.A. 88.
The Courts below have used the account books only as a corroborative evidence to the testimony of P.W. 1. I need not say that this is a matter concerning the valuation of the evidence and it may not be proper on my part to interfere with the findings recorded by the Courts below in regard to this matter, exercising my power u/s 100 Code of Civil Procedure.
In the result, I see no merit in this second appeal. It is only to be dismissed. I do so.