Sha Manmall Misrimall vs K. Radhakrishnan

V. Ramaswami, J.—The plaintiff is the appellant. The suit was filed by the plaintiff firm for recovery of a sum of Rs. 8562-12-3 with interest

and costs. The case of the plaintiff was that from 18-5-1953 till 17-9-1956 the defendant had dealing with the plaintiff, which consisted of the

plaintiff advancing moneys in respect of goods imported by the defendant under his licence. Such goods, when imported, would be sold by the

defendant to the plaintiff for an agreed rate and the invoice of each was credited to the account of the defendant. The plaintiff further contended

that the amounts advanced by the plaintiff to the defendant were agreed to be repaid with interest at 9 per cent, per annum. In respect of such

amount, the plaintiff claimed that there was due and payable by the defendant a sum of Rs. 7146-1-9 for balance of principal and Rs. 1,416-10-6

for interest, aggregating to Rs. 8562-12-3. The plaintiff pleaded that the suit was not barred by limitation by reason of adjustments of credits made

towards prior amounts due, and by reason of the letters of acknowledgment dated 2-11-1956 and 21-12-1956.

The defendant contended that the statement of account filed along with the plaint was not correct, that there were several items of debit in the

statement of account which the defendant was not aware of, that the said account contained omissions of innumerable amounts of credit and that

the prices in respect of each transaction were then and there received and adjusted. The defendant also pleaded that the suit was barred by

limitation.

During the trial, the defendant was asked to file a list showing the items which he considered as items of debit which the defendant was not

aware of and also a list containing the amounts of credit. Accordingly, the defendant filed two lists. The lower court appointed a Commissioner to

go into the transactions and report. The Commissioner held an enquiry and submitted his report. After a consideration of the entire evidence, the

trial court came to the conclusion that the dealings between the plaintiff and the defendant were true; but the advances made to the defendant were

not all in respect of import of goods. The lower court also found that the accounts produced by the plaintiff were true, but that the defendant was

entitled to credit in respect of a sum of Rupees 239-6-0 and another sum of Rs. 150-10-0 in addition to the credits given by the plaintiff. But, the

trial court dismissed the suit on the ground that the entire plaint claim for the period prior to 10-12-1955 was barred by limitation and that as

regard the claim for the period from 10-12-1955 to 17-9-1956, debit items had all been adjusted under A. 8 (xxx) to A. 8 (xxxvi), except a sum

of Rs. 12. In that view, the trial court dismissed the suit with costs.

The only point for consideration in this appeal is whether the suit claim was barred by limitation, as the findings of the trial court was not

challenged in other respects.

In the plaint, the plaintiff relied on two letters, Exs. A. 25 and A. 28, as letters acknowledging liability and saving the suit from the bar of

limitation. The plaintiff also contended that the suit was not barred by limitation by reason of adjustments of credits made towards prior amounts

due.

Ex. A. 25 is a letter written by the defendant to the plaintiff, demanding the plaintiff to send the statement of account for the period from 1953 till

the date of that letter. Ex. A. 28 is another letter repeating the same demand for ""the complete production of the statement of account and the

documents called for"" without any further delay. The learned counsel for the plaintiff-appellant relied on these letters--as saving the suit from the

bar of limitation. We do not find any acknowledgment of liability within the meaning of Section 19 of the Limitation Act in these two letters. These

letters merely call for the statement of account and do not acknowledge any liability. There could be no doubt, therefore, that these letters would

not save the suit from the bar of limitation.

On this point, the decision in Andiappa Chetti v. Alasinga Naidu, ILR (1911) Mad 68 may be referred to, wherein also it was held that such letter

calling for statement of account would not be an acknowledgment of liability u/s 19 of the Limitation Act. But the learned counsel for the appellant

relies on the decision in Andra Venkatayya Vs. The Official Receiver and Another, . In this decision, the acknowledgment in question was a letter

written by the defendant, which, after setting out various things, concluded by saying that upto the end of the term of the lease, he was prepared to

answer what was asked by the plaintiff. It was held in that judgment that the admission of the existence of as open account and an expression of

willingness to have it settled, implied an admission of liability for the amount which might be found upon settlement. In the letters now in question,

there is no expression of willingness to have it settled or to pay whatever amount that might be found due. In our opinion, the decision in Andra

Venkatayya Vs. The Official Receiver and Another, does not support the case of the plaintiff appellant to hold that Ex. A. 25 and A. 28 were

acknowledgments of liability.

The learned counsel for the appellant also relied on certain letters in support of his argument that the defendant had acknowledged liability. But,

we did not permit him to rely on those letters as plaintiff had not pleaded in the plaint that those letters saved the suit from the bar of limitation.

Under Order 7, Rule 6, Civil P. C., it is obligatory, as a matter of pleading, to show the grounds upon which the exemption from limitation is

claimed. Consequently, unless the plaint is amended, it would not be open to the parties to rely on an exemption not pleaded in the plaint: vide the

decision in Ramaswami Chetti Vs. Anaiya Padayachi and Others, .

Even so, we consider that the judgment and decree of the lower court, holding that the suit was barred by limitation, are clearly wrong. As

already stated, the plaintiff pleaded that the suit was not barred by limitation by reason of the adjustments of credits made towards the prior

amounts due. We see from the day book and the ledgers that these debits and credits have been entered seriatim. It is not the case of the

defendant that he instructed the plaintiff to appropriate the moneys in any particular way. The plaintiff also had not made any appropriation towards

any particular debt. Therefore, the rule that would have to be applied in this case was the rule that the debts were discharged in the order of time

by the credits, whether they were or were not barred by the law of limitation. The learned counsel for the respondent strongly relied on Ex. A. 8

series in support of his contention that the plaintiff had appropriated each entry of credit towards particular transactions and that therefore the rule,

that in the absence of appropriation by the debtor or the creditor in any particular manner, the earliest credit would set off the oldest debit, is not

applicable.

We consider that there is no substance in this contention of the learned counsel for the respondent. The invoices, Ex. A. 8 series, are of uniform

pattern and it would be enough if we take one invoice to find out whether the appropriation pleaded by the defendant was true. Taking Ex. A. 8(I)

as an illustration, it is stated that that is the invoice for Japanese cups and saucers. It gives particulars like payment to Grindlays Bank, letter of

credit charges, airmail charges, customs duty, agent''s commission, clearing charges and profit margin on CIF value, and the total of the above

figures, which comes to Rs. 1,228-13-9. This sum of Rs. 1228-13-9 is given credit to in the ledger Ex. A. 3. The details for arriving at this Rs.

1228-13-9 are given in the day book as set out in the invoice.

It is clear from the invoice and the entries in the day book and the ledger, that this invoice gave the particulars of the cost and other expenses of the

goods and the margin of profit thereon and the total amount was given credit to the defendant. It is also seen from the ledger and the day books,

that by the time these goods were received, the plaintiff had advanced various other sums of money also towards various other imports and also

cash loans, and there was nothing in this invoice itself to suggest that this amount was given credit to only towards the load advanced for importing

these very goods. The particulars given in the invoice are, in our opinion, only to find out the actual cost to determine the profit payable to the

defendant and the amount to be credited to the defendant''s amount. It cannot, therefore, be said that each of the invoices went in discharge of the

loans advanced in respect of the concerned goods alone. Having regard to the dealings between the parties and the entries in the day book and the

ledger, it is clear that the plaintiff was going on debiting the defendant whenever he gave money, and crediting him whenever he gave goods, with

the value of the goods and the margin of profits. Accordingly, the rule that will have to be applied, is the rule that has been provided in Section 61

of the Contract Act.

If the payments went in discharge of the earliest debits, the amounts paid by the defendant or the amounts given credit to towards the supply of

goods by the defendant subsequent to 10-12-1955 would go in discharge of the debt due by him prior to 10-12-1955. Any balance due from the

defendant after setting off the payments subsequent to 10-12-1955 and due from the defendant prior to 10-12-1955, will only be barred. But the

amounts advanced subsequent to 10-12-1955, will, therefore, be clearly in time. As per the statement of account given in the plaint, the total

amount that was advanced by the plaintiff subsequent to 10-12-1955 comes to Rs. 8470-1-6. But as the plaintiff has claimed only Rs. 7146-1-9

as the principal amount of the dealings, he will be entitled to a decree only for that amount.

The plaintiff had also claimed interest on the amount found due for the period prior to the suit. The plaintiff had not proved any agreement

between the defendant and the plaintiff for charging interest. He has also not shown as to how the plaintiff would be entitled to interest prior to the

suit. We, accordingly disallow the claim for interest prior to the suit. But the plaintiff will be entitled to interest at 6 per cent per annum from the

date of suit on the amount found due by the defendant. We, therefore, allow the appeal set aside the judgment and decree of the court below, and

decree the suit, directing the defendant to pay the plaintiff a sum of Rs. 7146-1-9 with interest at six per cent, per annum from date of suit till date

of payment. The plaintiff will be entitled to proportionate costs both in this court and in the court below.

Appeal allowed.