John Beaumont, Kt., C.J.
1. This is a revision application from the full Court of the Small Cause Court, Bombay, and it raises an interesting question of limitation.
2. The facts found are that the plaintiff is a grain dealer, and between October, 1933 and October, 1934, he supplied grain on a number of dates to the defendant. The dates were quite irregular, but there were deliveries during every month, and the defendant paid certain sums on account, the payments being for various amounts, and on irregular dates, and in this suit, which was filed on October 2, 1937, the plaintiffs sue for the balance due. The case was tried by Judge Nadkarni, who gave a long judgment holding that the bulk of the claim was barred by limitation. The view he took was that the plaintiff had a separate cause of action in rdspect of each consignment of grain delivered, and that under Article 52 limitation ran from the date of the delivery of each consignment, and therefore the suit was barred in respect of deliveries made more than three years before the commencement of the suit.
3. In the full Court the first judgment was given by Judge Modi. He held, on the authority of certain English cases, that the plaintiff had only one cause of action for the whole amount due for the goods sold and delivered, and that time ran from the date of delivery of the last consignment. The learned Chief Judge, who formed the other member of the Court, agreed with Judge Modi that the plaintiff had only one cause of action, but he felt a difficulty in applying Article 52 under which time runs, not from the date of the accrual of the cause of action, but from the date of delivery of the goods, and he came to the conclusion that the plaintiff's claim was really, not for the price of goods sold and delivered, but for the balance due at the foot of an account, and that the case fell within Article 115 and did not fall within Article 52. He, therefore, agreed with the conclusion at which his learned colleague had arrived.
4. Having read those three judgments with care and heard the case argued, I agree in part with the reasoning of Judge Modnd in part with the reasoning of the learned Chief Judge, but with the conclusion of Judge Nadkarni.
5. The case is one of importance because it is a type of case which very frequently arises in the Small Cause Court as the trial Judge points out. The plaintiffs cause of action is in my opinion for the price of goods sold and delivered, and I can see no ground for saying that the claim is not a claim for the price of goods sold and delivered, but is for the balance due at the foot of an account. The evidence was of sale and delivery of goods and there was no evidence that the defendant ever had any account submitted to him, or that he ever agreed to be bound by any account, and the mere fact that he paid moneys on account of what was due from time to time, for which he was given credit, cannot alter the nature of the plaintiff's cause of action. But for the difficulty of applying Article 52 I doubt if it would have occurred to the learned Chief Judge to suggest that the cause of action was for moneys due on an account. But though I think that the cause of action is for the price of goods sold and delivered, I agree with Judge Modi in thinking that there is only one cause of action for the whole amount due.
6. The principle to be applied has been laid down in various English cases which have been followed in India. That principle is stated very clearly in Bonsey v. Wordsworth (1856) 18 C. B. 325 in these terms (p. 334) :-. where a tradesman has a bill against a party for any amount in which the items are so connected together that it appears that the dealing is not intended to terminate with one contract, but to be continuous, so that one item, if not paid, shall be united with another, and form one continuous demand, the whole together forms but one cause of action, and cannot be divided....
7. The principle was explained by Manning in his note to Dood v. Wigley (1849) 7 C. 3. 106 in the following terms (p. 114) :--
Where goods are ordered of a tradesman on the 1st of January and distinct orders for other goods are given on the 2nd, 3rd, 4th, 5th, etc., if from the previous dealings between the parties, or from general usage, or otherwise, it is to be inferred that it was contemplated by the parties, that, in the event of the dealing continuing, the several items should be included in the monthly, quarterly, or yearly bills, the result of such an arrangement, and the legal position of the parties, seems to be this,-upon the delivery and acceptance of the first parcel of goods, delivered on the 1st of January, an entire contract is created, and a complete cause of action accrues, the tradesman, being) under no engagement to sell other goods, or to give credit beyond the price of the articles then delivered : when, on a subsequent day, other goods are delivered and accepted, a new contract arises, not simply a contract to pay for the goods then delivered, but a new entire contract by which the tradesman waives his existing right to payment off the goods delivered on the 1st of January, and the purchaser agrees to pay for both parcels as upon one entire sale... After the successive waiver and extinguishment of each preceding contract, the only subsisting contract and cause of action ex contractu will be the last.
8. I think that principle is right. It would be monstrous in a case of this sort if the plaintiff were to be at liberty to file independent suits in. respect of each consignment of goods. The principle was accepted in India by Sir Lawrence Jenkins in Kedar Math Mitra v. Dinabandhu Saha (1915) I.L.R. 42 Cal. 1043, and it has been applied also in other cases in India. Therefore, I accept the argument of Mr. Hathi that his cause of action is a single cause of action for the price of all the goods delivered down to the date of the last delivery.
9. But then we have to see how limitation affects the question. This is clearly not a case in which any fixed period of credit was allowed which would bring the case within Article 53. In my opinion the case falls within Article 52, which provides that for the price of goods sold and delivered, where no fixed period of credit is agreed upon, the period of limitation is three years from the date of the delivery of the goods.
10. Now, I cannot agree with Judge Modi that you can read Article 52 as applying to the date of the delivery of the last consignment; on that point I agree with the learned Chief Judge. The Court may be justified in implying a contract to suit the facts, but the Court cannot alter facts to fit a contract. These goods were not delivered on the date of the last delivefry; they were delivered on various dates during the preceding year, and one cannot alter that fact, nor can one read Article 52 as if the starting point of time was the accrual of the cause of action. The starting point of time is the date of the delivery of the goods, and it seems to me that, although the cause of action is one for the price of all the goods delivered, the Court is bound to check the various items which go to constitute that cause of action and to apply Article 52 to deliveries which took place more than three years before the filing of the suit. That was the result at which the learned trial Judge arrived.
11. But, it is said, that there is a decision of this Court against that view, which decision bound the learned Judges of the Small Cause Court, though, being a decision of a single Judge, it does not bind this Court. The decision I refer to is Najan v. Salemahomed : AIR1923Bom113 . It is a decision of Mr. Justice Mulla, as he then was. The facts of the case were by no means similar to the facts in the present case, but so far as limitation was concerned it was a case in principle not unlike the present. Sir Dinshah Mulla dealt with the question in these terms at p. 1003. He says-
As regards the question whether the plaintiffs' claim in respect of the items prior to June 7, 1917, is barred by limitation, I have no doubt that it is not. Both the plaintiffs and the defendants kept only one account of the transactions from the date of Ex. A.
12. Then after quoting the passage from Bonsey v. Wordsworth, which I have already quoted', Sir Dinshah goes on (P. 1004) :-
It is clear from the passage cited above that if all the items form but one cause of action, it is idle to suggest that a part of it can be barred by limitation, and that the rest may not be so barred. In fact counsel for the defendants, at a later stage of the proceedings, gave up the contention as to limitation.
13. Now, I am unable to agree with that view of Sir Dinshah Mulla. I think that for the moment he forgot the principle with which no one was more familiar than he, viz. that limitation, in the absence of express enactment, does not destroy the right, it only bars the remedy. No doubt, you cannot have a cause of action which is good in part, and bad in part. But it seems to me that you may have, and frequently do have, for example in claims for mesne profits, a cause of action which is enforceable in part, and unenforceable in part. Here there is one cause of action for the price of all the goods delivered. It is a perfectly good cause of action, and if the plaintiff had received the price for the whole amount, he could have kept it, and if he had got a lien to secure the price, he could retain that lien, but he cannot bring a suit to enforce the cause of action relating to goods delivered more than three years before the filing of the suit. That seems to me to be the plain effect of Article 52.
14. Therefore, as I have said, I agree with the conclusion at which the learned trial Judge arrived, though for different reasons. I think the plaintiffs' claim is barred in respect of all goods delivered more than three years before the filing of the suit.
15. The application will be allowed with costs both here and in the full Court. The plaintiffs to refund to the defendants the excess over Rs. 5-14-6 paid by the defendant into Court.
16. I agree.