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Ganesh and ors. Vs. Mallu Mal Girdhas Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All375
AppellantGanesh and ors.
RespondentMallu Mal Girdhas Das
Excerpt:
.....under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - in our opinion the claim of the plaintiff cannot be considered to be claim based on a document which is a good document under section 25, contract act......balance was signed by the defendants, and that all this comes within what is technically called 'accounts stated.' a number of cases were cited before us but, in our opinion, it is unnecessary to refer to any of them. upon the facts of the case we are unable to hold that there was any such accounting as is contemplated by the words 'accounts stated.' kashmiri mal was examined and has stated that there was accounting on different dates in different years. in our opinion the statements of the defendant ganesh misir and his munim are so vague that it is difficult for us to find out what actually happened on 17th may. in our opinion we have not before us sufficient materials on the record of this case to show that the seven items for which credit was given to the defendants were due to the.....
Judgment:

Banerji, J.

1. This is a defendants' appeal against a judgment and decree of the learned Addl. Subordinate Judge of Benares in a suit for recovery of money.

2. There are several defendants in the case but the case as presented to us does not require consideration of the case set up by the defendants, other than defendant 1, as defendant 1 must be treated as the 'karta' of the Joint family consisting of defendant 1 and the other defendants.

3. The plaintiff's case as disclosed in the evidence of, Kashmiri Mal was that the 'sarkhat' Ex. 1 was executed by Ganesh Misir defendant 1, that on 18th October 1923 the accounts were balanced and Rs. 16,518-7-6 were found due to the plaintiff, that thereafter on 7th October 1924 there was another accounting, and finally, on 17th May 1926, Rs. 14,287-2-6 were found due to the plaintiff, and the plaintiff claims that sum together with interest.

4. The defence was that the 'sarkhat' was not executed on the various dates mentioned, but everything was written up on 17th May 1926 on which date Ganesh Misir signed. It was pleaded that all items prior to 17th May 1923 which might be found due to the plaintiff must be held to be time barred, and the plaintiff's suit must be dismissed. The defendants other than Ganesh Misir, pleaded that they were not members of the joint family and that the acknowledgment was not binding as the business was not the joint business of the family.

5. The learned Subordinate Judge found that all the entries on Ex. 1 were written up on 17th May 1926, that the business was a joint ancestral business, that no part of the plaintiff's claim was. barred by limitation, as the effect of part payments in the years mentioned in Ex. 1 was that the part payments saved limitation as they appeared in the handwriting of the debtor, and came within Section 20, Limitation Act.

6. The case for the plaintiff further in the Court below was that no question of limitation arose because Ex. 1 represented the accounts as stated between the parties, and Article 64 of the Limitation applied to the case, but the Court below repelled the contention of the plaintiff.

7. The defendant-appellants claim that the fact of the part payment appearing in the handwriting of the appellant, was later than the part payment of principal and therefore Section 20, Limitation Act did not save the plaintiff's claim from being barred. It was contended that the writing must come into existence simultaneously with the part payment of the principal as contemplated by Section 20, Limitation Act.

8. In our opinion Section 20, Limitation Act, does not suggest in any way that the writing must come into existence immediately, and further, when the part payment is admitted and the fact of the part payment is made in writing by the debtor, the debt is revived and a suit can be maintained within three years of the part payment: see Vankatasubbu v. Appusundram [1894] 17 Mad. 92 and Ram Prasad v. Bansi Lal A.I.R. 1923 Nag. 127.

9. In the present case Ex. 1 shows that there was part payment of Rs. 1,000 on 23rd January 1924. To bring into operation the provisions of Section 20, Limitation Act, the part payment must be made before the expiry of the prescribed period, and in the present case any sums of money that were due to the plaintiff three years before 23rd January 1924 can be sued for by the plaintiff and time would be computed from 23rd January 1924. The learned Subordinate Judge has however said:

there were such payments in every year and they would give fresh start to the period of limitation.

10. We find that the part payment must be considered to have been made on 23rd January 1924 and any items which might be found due to the plaintiff for three years before that period would not be barred by limitation; neither would any of the items after that date. It would be necessary to send an issue to the Court below on this point which we shall set out later.

11. The learned advocate for the respondent has in support of the decree passed by the Court of first instance urged that Art 64, Schedule 1, Limitation Act, was applicable to this case and that no part of the plaintiff's claim is barred by time. It was contended by the learned Counsel that upon the finding of the Court below what happened on 17th May 1926 was that the accounts were gone into, what was found due to the plaintiff from the defendants was recorded, and the balance was signed by the defendants, and that all this comes within what is technically called 'accounts stated.' A number of cases were cited before us but, in our opinion, it is unnecessary to refer to any of them. Upon the facts of the case we are Unable to hold that there was any such accounting as is contemplated by the words 'accounts stated.' Kashmiri Mal was examined and has stated that there was accounting on different dates in different years. In our opinion the statements of the defendant Ganesh Misir and his munim are so vague that it is difficult for us to find out what actually happened on 17th May. In our opinion we have not before us sufficient materials on the record of this case to show that the seven items for which credit was given to the defendants were due to the defendants from the plaintiff. We therefore cannot accept the contention of the learned advocate that the proper article to apply to the case is Article 64, Schedule 1, Lim. Act. 'Accounts stated' has a technical meaning and in our opinion the materials before us do not entitle us to hold that on 17th May 1926 there was any such accounting as would amount to 'accounts stated' within the meaning of Article 64.

12. It is further contended by the learned Counsel for the respondent that Ex. 1 must be taken to be an agreement within the meaning of Section 25, Clause (3), Contract Act. Although the agreement is without consideration, it amounted to a promise made in writing and signed by Ganesh Misir to pay money which partly was barred by limitation. The contention of the learned advocate is that the word 'promised' may mean either an , express promise to pay, or an implied promise, and because the document has got an endorsement ' interest at the rate of 8 per cent', this amounted to an implied promise to pay the sum entered in the agreement. In our opinion the claim of the plaintiff cannot be considered to be claim based on a document which is a good document under Section 25, Contract Act. In our opinion to bring the case within that section it is necessary to show that there was an express promise to pay, as a mere acknowledgement of liability, even if it implies a promise, would not in our opinion be sufficient for purpose of Section 25. We therefore cannot accept the contention of the learned advocate.

13. Before we can finally decide this case it will be necessary to have findings upon the following issues from the Court below:

1. What sums became due to the plaintiff from the defendants on account from 23rd January 1921 to the date of the suit?

2. What payments were made by the defendants during that time and how were they appropriated. '

3. Whether the whole or a part of the sum of Rs. 5,597-0-9 was legally recoverable by the defendants from the plaintiff on 17th May 1926, and are they entitled to set it off?

4. What is the amount due to the plaintiff on principal and interest?

14. Parties will be entitled to call fresh relevant evidence. Ten days will be allowed for objections on return of the findings. The findings are to be returned within three months.


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