W. Comer Petheram, C.J.
1. This was an action to recover a sum of Rs. 33,359-3-6, which was admittedly due by the defendant to the plaintiff, and if the defendant were an honest man he would pay the debt. He has, however, set up the plea of limitation, and the law says that he may set up that plea, and that, even if he does not, the Court is bound to give effect to it. The Judge before whom the case was tried gave judgment for the plaintiff upon grounds which it is not necessary to notice, because they have not been insisted on before us by the plaintiff's counsel, who has urged other reasons for the contention that the Limitation Act is not applicable. It is contended by him that the debt had become due by the defendant to the plaintiff within the prescribed period of limitation, and the only question therefore which we have to determine is, at what time did the debt become due.
2. Prior to September 1879, there had been various transactions between the parties, and these transactions resulted in a debt due by the defendant to the plaintiff of Rs. 33,359-3-6, that being the identical amount which is claimed in the present suit In September 1879, the parties entered into negotiations as to the mode in which this debt should be liquidated. The defendant apparently was not in a position at that time to pay in money, but he had certain landed property, and negotiations took place for the sale of this property to the plaintiff, and the extinguishment of the old debt thereby. These negotiations proceeded so far that the purchase-money was fixed at Rs. 55,000, and it was agreed that the plaintiff should pay this amount by giving credit to the defendant to the extent of the debt due by him, and paying the balance in cash. So far the negotiations were completed, except apparently a few minor points. In the end, however, a dispute arose as to what had been settled as to the actual terms of the bargain which were to be reduced into writing. The defendant brought a suit against the plaintiff for specific performance of the contract which he alleged had been settled and executed for the sale to the latter of the property in dispute. That suit was tried by the Subordinate Judge, who decreed the claim. In appeal, the High Court reversed the Subordinate Judge's decree, as it appeared that the parties were never ad idem with reference to the contract set up by the then plaintiff. It is said now that this Court found that the true contract was not the contract set up by the then plaintiff, but was in fact the contract set up by the then defendant, who is now plaintiff. From the judgment of the Court, however, it appears that this is not what was then decided. All that the judgment shows is, that the contract set up in that suit was not proved because there was no evidence that the parties had come to any agreement that that was to be the contract. That is all that was necessary for the decision of that case. The judgment in effect decided that there had been no contract, and the parties were therefore relegated to their original position. In other words, the negotiations failed, because they resulted in no agreement; and the original debt due by the present defendant to the present plaintiff always remained due and is so still.
3. It is alleged that the contract was completed on the 1st September 1879, and that is therefore the latest possible date we can look to in considering when the money became due. The whole amount had in fact become due before that date, by reason of prior transactions; but, upon the view most favourable to the plaintiff, and assuming that an account was stated on that day, giving rise to a new period from which limitation would begin to run, it is impossible to assign the debt to a later date than that. The present suit was brought on the 18th September 1884, that is to say, much more than three years from the latest possible date upon which the debt can be said to have become due. Under these circumstances, the suit is barred by limitation. The plaintiff's contention is that the contract which he set up was found to have been completed ; and under its terms this money, having been credited in the present defendant's books, was to be treated as a payment by the present plaintiff as a deposit on account of the sale; and the present suit is therefore a suit for money had and received, upon a cause of action which did not arise until the contract had gone off, i.e., when this Court decided that the contract set up by the present defendant was not, but that set up by the plaintiff was, binding. I am of opinion that this contention must fail. In the first place, by the terms of the contract itself which is now set up by the plaintiff, no deposit was payable, and the price was not to be paid till the completion of the contract. Secondly, in the present plaintiff's letter to the defendant demanding payment of the money, and dated the 29th September 1879, the plaintiff did not demand the money of the defendant or ask him to return it as a deposit, but demanded it simply as the balance of the old demand. Under these circumstances it is impossible to say that the money was any thing but the old balance due from the defendant to the plaintiff, and as that debt was barred by limitation at the time when this suit was brought, I am of opinion that the Subordinate Judge should have given the defendant a decree. The appeal must b& decreed with costs.