W.K. Dansford vs B.D. Shaw and Co.

Kulwant Sahay, J.—This is an application in revision on behalf of the defendant in a Small Cause Court suit. The suit was for recovery of a sum of money, principal with interest, for price of goods sold and delivered by the plaintiffs to the defendant. The claim was for Rs. 207-12-0 as principal and Rs. 148 14-0 as interest, making a total of Rs. 356 10-0. The defendant admitted a sum of Rs. 55-8-0 and deposited the same in Court and denied his liability to pay the balance He further pleaded limitation.

The Small Cause Court Judge has decreed the entire claim, and has held that the plaintiffs have proved their claim by production of their bahis. On the question of limitation he held that it was a case of running account and the claim was not barred by limitation.

The only point raised in the present revision by the defendant is that the claim for the balance not admitted is barred by limitation. The plaintiffs are tradesmen and they used to supply goods to the defendant on credit and used to make up their bills and present the same to the defendant with vouchers. It appears that the transaction between the plaintiffs and the defendant has been going on from sometime before November 1920. On the 29th November 1920, the plaintiffs presented a bill to the defendant for a sum of Rs. 309-12-0 for goods supplied during the period from 19th May to 29th November 1920. This sum of Rs. 309-12-0 was made up of Rs. 157-8-0 being the price of goods supplied during the same period and a sum of Rs. 157-8-0 being the balance due on account of a previous bill. The defendant''s case is that when the previous bill was presented to him he denied his liability to pay the price of the goods valued at Rs. 152-4-0 and admitted the rest of that previous bill which was paid. His allegation is that no vouchers were produced for the goods for which Rs. 152-4 U was demanded and he refused to pay the same. In the bill presented on the 29th November 1920, the amount of Rs. 152-4-0 was again included without any vouchers, and he again refused to pay the same, but paid the balance of the bill. Subsequently bills were presented for goods supplied and the defendant says that the sum of Rs. 152-4-0 was again included in those bills which he refused to pay. The present claim of Rs. 207-12-0 is made up of Rs. 152-4-0 due on account of the previous bill, and Rs. 55-8-0 for goods supplied subsequently.. The defendant admits his liability to pay the Rs. 55-8 0 and did in. fact deposit this amount in Court. As regards Rs. 152-4-0 he denies his liability and pleads limitation.

The learned Judge in the Court below has found that Rs. 152-4-0 was due from the defendant and this question cannot be agitated in the present case: The only questioner consideration, therefore, is as to whether the claim for Rs. 152 4-0 is barred by limitation.

It is not disputed that this sum of Rs. 152-4-0 is the balance due on account of the bill presented before November 1020. But, it is contended that, as there was a running account between the parties, and there was payment made within the period of limitation in part satisfaction of the debts, the claim is saved from limitation. On behalf of the plaintiffs it is contended that the Article applicable is No. 85 of the First Schedule to the Limitation Act. To my mind, this Article has no application to the present case. It was not a case of a balance due on a mutual, open and current account where there have been reciprocal demands between the parties. It was a case of supply of goods by a tradesman on credit for which payments were made on presentation of bills. I think the Article applicable is Article 52 of the Act, and the period of limitation is, therefore, three years from the date of the delivery of the goods. Admittedly the goods were delivered beyond three years of the institution of the suit, and the claim would, therefore, be barred by limitation. The learned Vakil for the plaintiffs-opposite party, however, relies on Section 20 of the Limitation Act, and contends that part of the principal of the debt having admittedly been paid before the expiration of the period of limitation a fresh period began to run from the time of payment, But, in order to save limitation, on the payment must appear in the handwriting of the person making the same. The payment alleged is that of the principal and not of interest, and under the proviso to Section 20 a fresh period of limitation cannot be computed from the time when the payment was made, unless the fact of the payment appears in the handwriting of the person making the same. There is no allegation, much less proof, of there being any such handwriting of the person making the part payment in the present case, and the claim must, therefore, be held to be barred by limitation.

The decree of the Court below must, therefore, be set aside and the suit dismissed with costs. The plaintiffs, will, of course, be entitled to withdraw the sum admitted and deposited by the defendant in the Court below.