Skip to content


Sheo Partab Singh and ors. Vs. Brij Kishore and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.336
AppellantSheo Partab Singh and ors.
RespondentBrij Kishore and ors.
Excerpt:
limitation act (ix of 1908), schedule i, article 85 - mutual open and current account. - - 3. having regard to the findings of the lower appellate court as to the terms of the contract between the parties, we are clearly of opinion that article 61 does not apply. interest on any moneys advanced by the plaintiffs and to make good any loss which might take place which was not covered by the deposit. the last item was on the 4th of february 1903; therefore, whatever year was taken the suit was well within time......to the present case. there was an account between the parties extending over a number of years. the plaintiffs were always liable to account to the defendants for any profits that were made in the purchase and re-sale of grain and they were also liable to account for the deposit. on the other hand, the defendants were liable to the plaintiffs to pay. interest on any moneys advanced by the plaintiffs and to make good any loss which might take place which was not covered by the deposit. there was, therefore, a mutual, open and current account and there was reciprocal demand between the parties. according to article 85 of the limitation act, limitation begins at the close of the year in which the last item admitted or proved is entered in the account. the last item was on the 4th.....
Judgment:

1. This appeal arises out of a suit to recover money. The plaintiffs allege that there was a contract between themselves and the defendants that the plaintiffs should purchase grain for the defendants and store it in their godown, that the defendants should pay interest on the outlay, make a deposit to cover losses and that the defendants should be entitled to any profits that were made upon the re-sale of the grain by the plaintiffs. The transactions between the parties commenced in the year 1902 and the last transaction was a sale on the 4th of February 1906, when there was a balance against the defendants. The suit was instituted on the 8th of February 1909. The only question argued in the appeal is whether or not the suit is barred by limitation.

2. The defendants contend that Article 61 applies and the suit was barred after three years from the time that the plaintiffs made the last purchase on their behalf. The plaintiffs, on the other hand, contend that Article 120 applies and that they have six years from the settlement of the accounts.

3. Having regard to the findings of the lower Appellate Court as to the terms of the contract between the parties, we are clearly of opinion that Article 61 does not apply. It is quite clear that the plaintiffs could not have sued the defendants until after they had are sold the grain. It seems to us that Article 85 is the Article applicable to the present case. There was an account between the parties extending over a number of years. The plaintiffs were always liable to account to the defendants for any profits that were made in the purchase and re-sale of grain and they were also liable to account for the deposit. On the other hand, the defendants were liable to the plaintiffs to pay. interest on any moneys advanced by the plaintiffs and to make good any loss which might take place which was not covered by the deposit. There was, therefore, a mutual, open and current account and there was reciprocal demand between the parties. According to Article 85 of the Limitation Act, limitation begins at the close of the year in which the last item admitted or proved is entered in the account. The last item was on the 4th of February 1903; therefore, whatever year was taken the suit was well within time. Of course, if Article 85 does not apply and no other Article is applicable to the case, then the plaintiffs are entitled to fall back upon Article 120 in which case they would have six years The appeal fails and is dismissed with costs including in this Court fees on the higher scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //