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Cherunni Vs. Purushothama Iyer - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberS.A. No. 262 of 1972
Judge
Reported inAIR1973Ker174
ActsLimitation Act, 1963 - Sections 19 - Schedule - Article 14
AppellantCherunni
RespondentPurushothama Iyer
Appellant Advocate Easwara Iyer and; E. Subramani, Advs.
Respondent Advocate T.S.V. Iyer,;P.K. Balasubramanian an d; P.R. Narayanaswamy, Advs.
DispositionAppeal dismissed
Cases Referred(Shambhoo Prasad v. Firm DindayalDeokaran.
Excerpt:
- .....on 29-3-1965. defendant contended that his last purchase on credit was in march, 1960 and so the suit was barred by limitation. he also stated that all amounts due had been discharged by him. the trial court decreed the suit but on appeal, the learned subordinate judge has reversed that decision, and dismissed thesuit holding that the claim is barred by limitation. 2. i see no reason to interferewith the judgment of the learned appellate judge. it is admitted that the lastpurchase on credit by the defendant wason 14-3-1960. after that date also therewere purchases, but they were all cashpurchases. the plaintiff would put forward the case that after the balance wasstruck on the 14th of march. 1960 therewas an agreement by the defendant topay in instalments and some paymentsby cheque.....
Judgment:

K. Sadasivan, J.

1. Plaintiff is the appellant. He sued the defendant for balance due on accounts. Plaintiff is the owner of a rice mill, from whom the defendant used to purchase rice on credit. According to the plaintiff, a sum of Rs. 1767.74 P. was due as on 15th September. 1964. The suit was filed on 29-3-1965. Defendant contended that his last purchase on credit was in March, 1960 and so the suit was barred by limitation. He also stated that all amounts due had been discharged by him. The trial Court decreed the suit But on appeal, the learned Subordinate Judge has reversed that decision, and dismissed thesuit holding that the claim is barred by limitation.

2. I see no reason to interferewith the judgment of the learned appellate Judge. It is admitted that the lastpurchase on credit by the defendant wason 14-3-1960. After that date also therewere purchases, but they were all cashpurchases. The plaintiff would put forward the case that after the balance wasstruck on the 14th of March. 1960 therewas an agreement by the defendant topay in instalments and some paymentsby cheque were also made. He wantsthe Court to construe these payments asamounting to acknowledgment of the debtunder Section 19 of the Limitation ActThis is not possible. The article of theLimitation Act applicable to the transaction is Article 14 (Article 52 of the old Act).Under this Article even though goodswere delivered to the defendant fromtime to time on account, the cause of action will be one for all the items delivered, and the starting point of limitation in respect of each item of accountmust be taken to be the date of deliveryof the goods under that item of accountThe last date of delivery cannot be takento be the date of delivery of goods onearlier occasions. (See Naravana Pillaiv. Narayanan, AIR 1957 Ker 93) Atmaram Vinayak v. Lalit Lakhamsi, AIR 1940Bom 158 and Firm Gulabrai v. Firm IlahiBux. (AIR 1945 All 185). In the presentcase as already indicated, the last purchase, and the delivery of the goods wason the 14th of March, 1960. The payment by cheque cannot save limitationof the goods already sold and delivered.The plaintiff has no case that there wasa settlement on 14th March 1960 and thatthereafter the defendant agreed to payin instalments. There is nothing in support of this, either in the plaintiffs noticeExt. A7 or in his plaint. There are alsono materials to support it Therefore,the article of the Limitation Act to beapplied is. Article 14 and when that is applied, all purchases earlier to 14th March,1960, are barred. The alleged settlementmust be ruled out for the further reasonthat no accounts were signed by the defendant or his agent. The plaintiff alsohas no such case. I'Where in a suit for price on accountof goods supplied to defendant there isno allegation in plaint of any writingsigned by the defendant. Article 64 does notapply. The case is governed by Article 52.'(Shambhoo Prasad v. Firm DindayalDeokaran. (AIR 1950 Nag 228)).

3. The result therefore, is that the plaint claim is barred by limitation. The decree of the lower appellate Court Is confirmed, and this Second Appeal dismissed.


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