S.T.K.M. Lakshmanan Chettiar and Others vs Nalla Sevugam Servai alias Nalla Sivan Servai

Abdur Rahman, J.—The only point which I have been invited to decide in this revision is one of limitation. The plaintiffs dealt in cinder while

the defendant had a brick kiln of his own. Dealings started between them in 1927. They consisted in the purchase of cinder. The defendant

borrowed cash as well from the plaintiffs occasionally. The last three items which are debited in the plaintiffs'' accounts to the defendant are:

Rs. 120 on the 28th July, 1936 for price of 20 carts, of cinder;

Rs. 20 on the 27th February, 1937 for money advanced in cash; and

Rs. 115-8-0 on the 20th July, 1938 for the price of 21 carts of cinder.

The plaintiffs were in need of money, it seems for purchasing some bulls and made a demand from the defendant on the 3rd March, 1938 for

payment. Instead of paying cash in or towards the discharge of his account,, the defendant sold two bulls to the plaintiffs for a sum of Rs. 220.

Bricks to the value of Rs. 19-10-0 had been sold by the defendant to the plaintiffs on the 13th April, 1935. The credit of these two items in the

plaintiffs'' account led to the contention on their behalf that there was a mutual,, current and open account within the meaning of article 85 of the

Limitation Act and limitation for the suit instituted by them on the 16th November, 1940 started from the close of the year 1938 in which the last

item was entered in the account.

The second contention advanced on behalf of the plaintiffs, was that in so far as the last item of Rs. 115-8-0 was due in respect of cinder sold

and delivered in July, 1938, the suit to that extent would, at all events, be within time under article 52 of the Limitation Act.

These contentions were not accepted by the lower Court. The first one was overruled as the lower Court came to the conclusion that the

account between the parties could not be regarded as mutual, open and current within the meaning of article 85 and the second as the lower Court

took the view that the last two payments were made by the defendant towards the price of cinder supplied to him on the 30th July, 1938,, and

were agreed to be appropriated by the plaintiffs towards that item. In the result the plaintiffs'' suit was dismissed. .

The plaintiffs have consequently come up in revision and their learned Counsel has, in addition to the contentions advanced in the Court below,

put forward a further contention that the various items debited to the defendant were so connected together as to show that they were continuous

so that the previous items when not paid must be taken to have been united with the last item debited to the defendant and must be held to form

one continuous demand.

After hearing learned Counsel for the parties I am of opinion, that the first contention advanced on behalf of the plaintiffs in the lower Court was

incorrect and was rightly disallowed. The letter Ex. B, on which reliance was placed on behalf of the plaintiffs, does not show that the sale of the

bulls by the defendant was an independent transaction or created an independent obligation. On the contrary it clearly shows that the sale was

made to the plaintiffs in partial discharge of the debt due to them at that time. This amounted to Us. 476-9-0. The request for a sum of Rs. 120 in

the defendant''s letter Ex. B was simply a request for a fresh loan from the plaintiffs. At no point of time was any balance due to the defendant and

it could not therefore be said that there was any reciprocal demand on his behalf against the plaintiffs. The delivery of bulls of the value of Rs. 220

or the supply of bricks in April, 1935 in partial discharge of the moneys due to the plaintiffs cannot;, in my opinion, alter the character of the

account and bring it within the ambit of article 85 of the Limitation Act.

Let me now deal with the third contention. It was advanced on behalf of the plaintiffs for the first time in this Court. It appears to be borne out

by a Calcutta decision in Kedar Nath Mitra v. Dinabandhu Sahal ILR (1915) Cal. 1043 to which no less an eminent Chief Justice than Sir

Lawrence Jenkins was a party. But there are several difficulties in applying that decision to this case or even in accepting it in regard to the point in

support of which it is cited. I say so with great deference to the learned Chief Justice and to the other learned Judge who was a party to that

decision. Firstly, there is nothing on the record in this case to suggest that the dealings between the parties were intended to be continuous and the

various items debited to the defendant were so united as to form part of one item or of one demand. Secondly, it is not easy to see how, in the

absence of a definite provision in the Limitation Act, could the period of limitation in this case begin to run from the date on which cinder was last

supplied. The mere supply of different goods on different dates cannot give rise to a fresh period of limitation from the date of the last supply. If no

period of credit was agreed upon, article 52 of the Limitation Act would obviously apply and limitation would start from the date of the delivery of

the goods on each occasion unless of course the case can be brought within the ambit of article 85, Whatever the English law on the basis of which

the learned Judges came to the decision in Kedar Nath Mitra v. Dinabandhu Saha ILR (1915) Cal. 1043 there is nothing in the Indian Limitation

Act that would warrant, in my judgment, that conclusion. The advance of monies occasionally in this case or the supply of cinder on various dates

do not, in my opinion, form one connected whole for the purpose of calculating limitation.

There was however no material on the record which would have justified the lower Court in holding that the sum of Rs. 115-8-0 was

appropriated by the plaintiffs specifically towards the price of the goods supplied on the 20th July, 1938. It may be that the defendant had the idea

of discharging the debt that he had incurred by the purchase of 21 carts of cinder on the 20th July, 1938. But there is no evidence on the record

that he had given any definite instractions to the plaintiffs to appropriate that sum towards that amount or that the plaintiffs had given credit to the

defendant towards that particular item. In the absence of any such evidence the payments by the defendant would have to be regarded as

payments generally towards his account irrespective of the consideration whether the items in the plaintiffs'' accounts were barred by limitation or

not. On that point the finding of the lower Court was wrong and must be set aside. The sum of Rs. 115-8-0 would thus be, if otherwise proved to

be correct, within limitation.

For the above reasons, I must accept the revision and send the case back to the lower Court for disposal on the merits. The parties will bear

their costs of this revision and the costs in the lower Court will be costs in the cause.