1-6 x x x x x
7. Thus, although the plaintiff's theory that the oral agreement as set up in plaint para 2 was arrived at the very commencement of the transactions, namely, in year 1941, is not proved as such, in our opinion, the plaintiff has successfully shown a course of dealings and transactions between the parties that had taken place even since 1938 upto year 1952 when the parties fell out, presumably because of the differences in relation to the partnership business which was carried on between the plaintiff and the defendant in the name of Wadia Kiritsinh Transport for which the plaintiff has filed Regular Civil Suit No. 874 of 1963 for dissolution of partnership and accounts, that there was a sort of a peculiar over-all understanding between the parties in the matter arising out of a peculiar relation resulting in trust and confidence in each other, as we shall presently see, while delaing with the question of limitation.
8. Mr. Mehta's contention on the point of limitation is that the transactions between the plaintiff and the defendant were distinct transactions falling under four distinct heads: (i) for the price of goods sold and delivered where no fixed period of credit was agreed upon: (ii) for the price of work done by the plaintiff for the defendant at his request, where no time had been fixed for payment; (iii) for money payable for money lent; and (iv) for money payable to the plaintiff for money paid for the defendant, respectively covered by Article 52, 56, 57 and 61 of the Indian Limitation Act, 1908 (Act 9 of 1908). As regards the fist category of transactions. Mr. Mehta;s particular submission is that the Court is bound to check up the various items which go to constitute that cause of action and to apply Article 52 to deliveries which took place more than three years before the filing of the suit, although the cause of action is one, namely for the price of all the goods delivered. For the purpose, Mr. Mehta has rlied upon the decision in Atmaram Vinayak v. Lalji Lakhamsi, AIR 1940 Bom 158 = (42 Bom LR 227). Mr. Mehta's overall submission in substance is that transactions are distinct transactions governed by the aforesaid relevant articles of the Limitation Act. Now here, it may be remeberd that although the plaintiff had supplied the defendant with copies of the relevant accounts and bills respectively with the notice Ex. 45 and reply Ex. 48 and had also filed the accounts from Samwat year 2004 to Samwat year 2010 (from 1948 A.D. to 1954 A.D.) as annexures to the plaint, and although the defendant had ample opportunity to examine the various items of accounts, in his written-statement, not only did he not challenge any specific items of accounts and put up a positive case, but what is more significant is that he did not raise any plea of the bar of limitation and did not make any averment of fact showing that the items of accounts or any one or more of them were barred by limitation, having regard to the nature of the transactions. It is true that Section 3 of the Limitation Act requires that although limitation has not been set up as a defence, every suit instituted after the period of limitation prescribed therefor by the First Schedule to the Limtation Act shall be dismissed. But, this cannot be taken to mean that when limitation has not been specifically pleaded in the defence and the facts are not apparent on the face of the record, the Court is bound to speculate upon possible questions of limitation that may arise in the suit. It appears that it was precisely for this reason that the learned trial Judge appears to have thought it proper to raise relevant issue set out earlier so that the attention of the parties may be focussed on the point. However, the omission to raise such a pleaof the bar of limitation assumes importance in the instant case when what we have to consider is the nature of the manifold transactions, whether they were single and indivisible transactions or whether they were distinct transactions for which different Articles of the Limitation Act might be said to apply. Now, the course of dealings between the parties as evidenced by the testimony of the plaintiff and his witnesses, as also the accounts that have been produced by the plaintiff at Exs. 9 to 42 show the real nature of the transactions. The course of dealings discloses that the relations between the parties were cordial ever since the year 1938 when the defendant had purchased a motor car from the plaintiff. The relations appear to have grown thicker and each confined in the other. The evidence reveals that the plaintiff was in the effective control of the firm of M/s. P.H. Wadia & Sons which carried on the business on the supply of provision materials, sale and purchase of motor cars, repairs of motor cars sale of motor spare parts and accessories etc., ever since 1938 and that when the partnership was dissolved at the close of Samwat year 2005 (1949 A.D.) he became the sole proprietor of the concern. The relation had its origina some time in the year 1938 between the plaintiff who was residing in Rajkot and the defendant, who was a Prince or the Ruler of the nearby Gondal State and was working as a Road Superintendent of Gondal State and resided in Gondal, a nearby town. The transations continued all along until almost the end of year 1952 when the parties appear to have fallen out, because of some dispute inter se relating to their partnership firm started in year 1949 in the name and style of Wadia Kiritsinh Transport. It appears that during all this intervening period, Rajkot was the place from which the defendant used to obtain most of his requirements of provision materials, cloth, motor-car, etc. Defendant used to make purchases of provision materials and other articles from the firm of M/s. P.H. Wadia & Sons on credit. The defendant used to purchaase cloth and some other articles from some merchants in Rajkot, most of it on credit. The purchases weremade and goods were obtained by the defendant from Rajkot either personally or through his trusted servant named Abedbhai, who was working in his bungalow since last about 35 years, and also through Abedbhai's sons Alibhai, Mamadbhai and Abdulla of whom Abdulla has subsequently become the heir, on the death of the defendant pending the hearing of the appeal, as shown in the title cause of the appeal before us. The acceptable evidence shows that the plaintiff was also looking after the various affairs and requirements of the defendant at Rajkot, sometimes paying up defendant's bills payable to other merchants in Rajkot giving cash amounts to the defendant and his servants to make some cash purchases or make payments of defendant's various bills in Rajkot, even paying off the defendant's Gymkhana bills and somemedical bills of treatment of defendant's dog by a veterinary surgeon at Rajkot, attending to defendant's income-tax matters, making payments by cheques of large amounts of income-tax payable by the defendant, and attending to all and sundry works entrusted to him by the defendant. The defendant had admittedly purchased a motor car from the plaintiff. Defendant's motor-cars were repaired in plaintiff's workshop and spare parts and accessories were supplied by the plaintiff from his stores and all this on credit. In short, the plaintif worked as a sort of defendnat's general agent and financier in Rajkot, supplied provision materials and other goods on credit, procured the required goods from other shops for the defendant, repaired motor cars in his workshop, supplied motor spare parts and accessories, paid bills of defendant's creditors, gave cash amounts to pay off the defendant's other bills, paid income-tax amounts on behalf of the defendant from his own Bank balance and attended to all and supply needs of the defendant. This appears to have been a peculiar relationship which had grown up between the parties during the course of years beginning from 1938. All these transactions have been entered into in one single account of the defendant maintained by the plaintiff. Monyes were debited in defendant's single account, Debit memos, debit vouchers and statement of accounts were from time to time given by the plaintiff to the defendant or his trusted servants. Payment was never demanded until in the year 1952 when the relations became strained. This was all because of the great confidence and trust the plaintiff had reposed in the defendant and vice versa. This peculiar course of dealings shows that moneys due to the plaintiff at the foot of accounts of the transactions were payable on demand. In any event, such appears to have been the tacit understanidng. Although the transactions can be classified under eight broad heads as observed by us earlier, in substance it was all part of a single and indivisible arrangement and the plaintiff's claim for the suit amount cannot be split up into different items for applying the bar of limitation. It is not the case of the defendant that demand of the moneys due was made by the plaintiff at any time earlier. Mere giving of debit memos, vouchers, statements of accounts, etc., do not amount to a demand and that was never the case of the defendant. Apart from the fact that the defendant has not in his written statement raised a plea of bar of limitation, we find that no case was set up that the suit transactions were divisible and separate transactions. Even in his evidence the defendant has not made any statement indicating the distinct and divisible nature of the transactions. There is no reason to classify the suit claim into four distinct heads as contended by Mr. Mehta. The defendant has not challenge plaintiff's deposition stating that the demand of the suit dues was made by him of the defendant personally in August 1952 for the first time. Defendant's conduct as reflected in the course of dealings actions were all to be treated as part of an over-all implied arrangement or agreement, a sort of a composite agreement, to treat the transactions, as one and indivisible, the amount due being payable on demand. In our opinion, all these facts and circumstances lead to a reasonable conclusion that the parties treated the transactions as part of one and indivisible over-all arrangement at least impliedly. Thus, although the oral agreement pleaded by the plaintiff in para 2 of the plaint, namely, that the arrangement was arrived at at the very commencement of the suit transactions, meaning in the year 1941, is not satisfactorily proved, the fact that such was the arrangement impliedly arrived at between the parties during the course of the transactions is amply borne out by the course of dealings between the parties, the system of accounting, the nature of the various transactions and the implicit trust one had in the other. The plaintiff would not have otherwise sat silent for such a long time and gone on supplying goods and making payments of large amounts to the defendant or on his behalf over a number of years. It must here be remembered that the plaint para 2 also speaks of such an understanding having been arrieved at during the course of the transactions. The case set up in plaint para 2 as regards the understanding is two-fold: (i) that it was arrived at at very commencement of the suit transactions; and (ii) that it was also arrived at during the course of the transactions or dealings between the parties. Thus, if we say that the agreement was to treat the transactions as one and indivisible and the transactions as one and indivisiable and that this was a sort of a composite arrangement by virtue of an implied over-all agreement fo which the payment was to be made by the defendant on demand made by the plaintiff, such an understanding, in our opinion was implicit and is covered by the pleadings. On these premises, the suit relief is clearly within limitation, the demand having been made by the plaintiff on December 21, 1952, by notice Ex. 45 and the suit having been instituted on July 7, 1954. Mr. Mehta's contention that the suit relief is not founded on pleadings has thus no merit.
9. It is true that if a party asks for a relief on a clear and specific ground and in the issues or at the trial, no other ground is covered either directly or by necessary implication. It would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. A party cannot be permitted to justify its claim on a ground which is entrely new and whih is inconsistent witht ground made by it in its pleadings. But, even in such a case, considerations of form cannot override legitimate considerations of substance. As observed by the Supreme Court in Bhagwati Prasad v. Chandramaul AIR 1960 SC 735 at p. 738:
'* * * in considering the application of this doctrine to the facts of the present case. It is necessary to bear in mind the other principle that considerations of form cannot override the legitimate considerations of substance. If a bplea is not specifically made and yet it is coverd by an issue by implicatin, and the parties knew that the said plea was involvedin the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleading would be purely formal and technical and cannot succeed in every case.'
In our opinion, as aforesaid, the course of dealings does make out an over-all implied agreement between the parties of the sort set out in the plaint para 2. Even assuming otherwise, if the same sort of understanding can be spelt out or culled out from the course of dealings between the parties as is the case here, we would not allow the considerations of form to override the legitimate considerations of substance. We are inclined to take a liberal view of the matter. The suit transactions appear to us to be part of a single and indivisible arrangement (agreement) and the claim made by the plaintiff could not be split up into different items for applying the bar of limitation and therefore, in our opinion. Article 120 of the Indian Limitation Act which provides a period of six years from the date when the right to sue accrues applies. We are in a way fortified in this view by the observations of the Supreme Court in Union of India v. Watkins Mayor and Co., AIR 1960 SC 275, where in a suit by the bailees for compensation on account of expenses incurred in storing goods under 7 different heads : (a) godown rent, (b) watch and ward, (c) terminal tax, (d) catiage, (e) unloading charges, (f) cooliage, and (g) interest, it was contended by the defendant, inter alia, that the suit was barred under Article 61 of the Limitation Act with respect to items (c) to (f). The argument was repelled by the Supreme Court making the observations:
'The transactions of bailment between the parties was a single and indivisible transaction and the claim of compensation made by the plaintiff cannot be split up into different items for appying the bar of limitation. The High Court was right in taking the view that the suit was governed by Art. 120 of the Limitation Act and that the plaintiff was not barred under that Article.'
It follows that in a case where the transactions are indivisible and the claim cannot be split up into different items. Articles 120 of the Limitation Act applies, as in the instant case. It is not in dispute before us that if Article 120 of the Limitation Act governs the case, the entire suit of the plaintiff is within the period of limitation.
10. Article 120 is the residuary Article and it provides for a period of limitation of six years in a suit for which no period of limitation is provided elsewhere in the Schedule. The Article would apply unless it is clear that the suit is within some other Article, which, in our opinion, it is not. It is a general Article and it applies to suits to which no other Article is applicable. The time in such a suit beings to run when the right to sue accrues. The words 'right to sue' means a right to seek relief and there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement by the defendant. The question as to when a right to sue arises depends mostly on the facts and circumstances of each case. The facts in the instant cse disclose that the right to sue accured to the plaintiff only when the demand was made for the first time on December 8, 1952, and the defendant refused compliance. In this view of the matter, the plaintiff's suit as institutedon July 7, 1954, is clearly within the period of limitation under the Article.
11. In our opinion, neither Article 52, which provides a period of three years from the date of delivery of the goods, nor Article 56 which provides a period of three years from the date when the work is done can be applied in the case. One does not cover the price of work done and the other does not cover the price of materials supplied. Likewise Article 57 which provides a period of three years from money payable for money lent from the date of the loan and Article 61 which provides three years' period from the date when the money is paid, do not apply. The decisions reported in : AIR1961Pat485 and : AIR1961Mad388 , relied upon by Mr. Mehta to support his contention that Articles 52, 56, 57 and 61 apply have no application to the instant case and need no detailed consideration. In the instant case, there appears to be a special, though implied, contract between persons who were friends and confidants. The parties appear to have made demand an integral part of the agreement or understanding and the transactions as aforesaid, in our opinion, were all a part of an over-all contract or understanding and they could not be split up into different items for applying the bar of limitation. Effect will, therefore, be given to their contract. The cause of action is a claom for the balance due at the foot of account, payable on demand. In any view of the matter, therefore, the suit of the plaintiff would be governed by Article 120 and is within the period of limitation.
Before parting with the case, we must refer to a contention raised by Mr. Desai for the respondent that document Ex. 46 dated December 21, 1952, constitutes an acknowledgement within the meaning of Section 19 of the Limitation Act. Now, Ex. 46 is a reply of the defendant to the plaintiff's notice of demand, Ex. 45 dated December 8, 1952. In the reply, the suit claim is denied. It is denied that bills of accounts were given to the defendant. It states that nothing could be made out of the copy of the 'Khatavahi' (ledger) that was sent by the plaintiff to the defendants. It further states that after examining the bills, an appropriate detailed reply will be sent. From this Mr. Desai wanted us to infer that a sort of a jural relationship as of debtor and creditor subsisted between the parties. Mr. Desai's submission was that the reply did not in terms deny the correctness of the accounts and further that by asking for the accounts the jural relationship was admitted. In our judgment there is no merit in this contention. The reply merely denies the correctness of the accounts and calls for the relevatn bills and says that on receipt of such bills the defendant would give a detailed reply. Having regard to the tenor of the letter, it does not appear that the statements therein were made with the intention to admit jural relationship. In our opinion the reply Ex. 46 cannot be construed as an acknowledgement of liability within the meaning of Section 19 of the Indian Limitation Act.
12. The aforesaid were the only contentions which were raised by the learned advocates of the parties. For the reasons stated, the suit in within limitation and is not barred. We must accordingly maintain the decree of the trial Court. The result is that the appeal fails and is dismissed with costs.
13. Appeal dismissed.