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Firm Gulabrai NaraIn Das Through L. Shiam Sundar Lal Vs. Firm Ilahi Bux Mohammad Ayub Through Mohammad Yakub - Court Judgment

LegalCrystal Citation
Subject Limitation
CourtAllahabad
Decided On
Reported inAIR1945All185
AppellantFirm Gulabrai NaraIn Das Through L. Shiam Sundar Lal
RespondentFirm Ilahi Bux Mohammad Ayub Through Mohammad Yakub
Excerpt:
- .....your khata,' this was signed by one of the defendants mohammad yakub. mr. shambhoo nath seth the learned counsel for the appellants contends that there was one continuous transaction, although the dates of supply and the dates of payment might have been many and varied and the three payments did not refer to a particular supply; but referred to the supply in general. he relies on bonsey v. wordsworth (1856) 18 c.b. 325 at p. 334, where it was held that:.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.....
Judgment:

Sinha, J.

1. This is a plaintiffs' appeal and arises out of a suit for recovery of Rs. 1200 with interest at 9 per cent. per annum. The plaintiffs are commission agents and their case is that the defendant firm used to purchase cloth and metal wares from them. In 1931, the story further proceeds, the parties adjusted their accounts and a small sum was found due to the plaintiffs. On 29th October 1931, the dealings between them re-started and continued upto 28th April 1937. The plaintiffs supplied goods and the defendants also made payments from time to time, but a stage was never reached when the entire sum due to the plaintiffs was discharged. The present suit Was instituted on 28th August 1939. The plaintiffs took their stand on three payments made on different dates. The first was a payment of Rs. 500 on 23rd August 1934, the second of a sum of Rs. 1000 on 4th September 1935, and the last of Rs. 400 on 3rd November 1936. The learned Munsif decreed the suit. The lower appellate Court has, however, modified the decree and confined it to a sum of Rs. 158-4-0. It also awarded interest at the rate of 3 1/4 per cent. per annum. The learned Civil Judge of Bijnor held that the article applicable to the case was Article 52, Limitation Act, which provides a period of three years from the date of the delivery of the goods. The plaintiffs have come in appeal before us. They rely principally on the endorsement made on the last day of payment, viz., 3rd November 1936, which was to the following effect: 'Received Rs. 400 which shall be deposited in your khata,' This was signed by one of the defendants Mohammad Yakub. Mr. Shambhoo Nath Seth the learned Counsel for the appellants contends that there was one continuous transaction, although the dates of supply and the dates of payment might have been many and varied and the three payments did not refer to a particular supply; but referred to the supply in general. He relies on Bonsey v. Wordsworth (1856) 18 C.B. 325 at p. 334, where it was held that:.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.

What their Lordships were considering when they made this observation, was the question of jurisdiction, but not the question of limitation. The question of limitation invites a different consideration.

2. The starting point of limitation under Article 52, Limitation Act, is 'the date of the delivery of the goods.' According to the plaintiffs, delivery means all the deliveries taken as a whole; according to the defendants each delivery gives an independent cause of action. The contention of the learned Counsel for the defendants receives support from Section 32, Sale of Goods Act, which provides that 'the buyer shall be ready and willing to pay the price in exchange for possession of the goods.' This section casts an obligation upon the seller to 'be ready and willing to give possession of the goods to the buyer in exchange for the price' and also upon the buyer to be ready with the price thereof. Article 52 has been the subject of adjudication in several cases and it is not necessary to go into further detail. It was held in Abdul Aziz v. Munna Lal ('21) 8 A.I.R. 1921 All. 325 that:

In the case of a tradesman's account the liability to pay for each item of goods delivered, either day by day or week by week, is in the case of each item the date of the delivery of that particular item.

This case was considered at length in Puttu Lal v. Jagannath : AIR1935All53 and their Lordships followed the principle laid down therein.

3. It has also been contended by the learned Counsel for the appellants that the transactions between the parties, more particularly the language of the endorsement of 3rd November 1936, imply 'an agreement to the contrary,' as contemplated by Section 32, Sale of Goods Act. If the law is clear that each delivery of goods gives right to a cause of action immediately, one would have expected an agreement between the parties more precise and explicit in form. The argument of the learned Counsel can be accepted only if the language of the endorsement is strained and something is read into it which is not there in express terms. Atmaram Vinavak v. Lalji Lalihamsi ('40) 27 A.I.R. 1940 Bom. 158 is in agreement with the view of this Court. In Norton v. Ellam (1837) 46 B.E. 646 at p. 649, Baron Parks observed : 'The debt which constitutes the cause of action arises instantly on the loan.' The above case was noticed with approval in (1890) 44 ch. D. 6276 at p. 630. Both George Francis v. Bruce (1890) 44 Ch. D. 627 and this case no doubt referred to a different set of circumstances and came strictly under Article 57, Limitation Act, but the ratio of the decision will apply to a case under Article 52. The learned Counsel for the appellants has relied on Singh & Co. v. Sircar & Co. : AIR1930All392 . The facts of that case were quite different and the ruling has no application to the facts of the case before us. We therefore dismiss this appeal. The parties shall under the special circumstances of the case bear their own costs of this appeal and of the cross-objections.


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