C.M. Lodha, J.
1. The only point for decision in this appeal by the plaintiff who have lost their suit in both the courts below is whether Ex. 1, the basis of the suit is an account stated, and consequently the suit is within limitation
2. The respondent has not appeared inspite of service, and, therefore, I have heard the appeal exparte.
3. In order to appreciate the contention raised on behalf of the appellant it would be proper to reproduce the contents of Ex. 1, which when translated into English reads as under:
Account of brother Manchharamji Indermalji Sri Jaisalmer-
2100/- balance to pay 2223/12/6 Balance to be
S. 2008, Sawan paid.
Sudi 9, in the
23/12/6 by way of
from S. 2010
Sudi 10 in
presence of Champalal
2223/12/6 Balance to be
Sudi 10, in
Sd/- Nakhatmal Mehra
4. Learned Counsel for the appellant has urged that though Ex. 1 itself does not contain the account, that is, the cross items after adjusting which the balance was struck, but it is clear from the statement of Bhojraj that the balance in Ex. 1 had been struck by the defendant Nakhatmal after going into the accounts contained in the accounts books of the parties and after understanding the same. Bhojraj has also stated that Ex. 1 was written by the defendant Nakhatmal at his shop in the presence of himself, Champalal and Inder Mai after comparing the accounts contained in the Bahis. On the basis of the statement of Bhojraj, it is argued that the irresistible conclusion in the facts and circumstances of the present case is that the balance in Ex. 1 was struck by the defendant after admitting the correctness of accounts between the parties which consisted of crossitems. It is submitted that what is of the essence of the account stated is the striking of a balance, and it is not at all necessary that items on either side must appear in the document itself. In support of his contention learned Counsel has relied upon Narendra Nath v. Shasabindoo Nath AIR 1941 Cal. 595 Siqueira v. Noronha AIR 1934 C.P. 144, Bishunchand v. Girdharilal AIR 1934 P.C. 147, Gordon Woodroffe & Co. v. S.k.M.A. Majid & Co. 0065/1966 : AIR1967SC181 , Tarachand v. Mst. Dhapu ILR 7 Raj. 483 and Ramdayal v. Maji Deoriji of Riyan 1955 RLW 265.
5. In my opinion the law appears to be well settled that the essence of an account stated is that there are cross items of account and the parties mutually agree the several amounts of each and. by treating the items so agreed on the one side as discharging the items on the other side pro tanto, go on to agree that the balance only is payable. This was the view taken by their Lordships of the Privy Council in Bishun Chand v. Girdhari Lal AIR 1934 P.C. 147 and was followed also by the Sripreme Court in Gordon Woodroffe & Co. v. Sk. M.A. Majid & Co 0065/1966 : AIR1967SC181 . No doubt striking of balance is also an essential ingredient of an account stated but mere striking of the balance without there being a statement of accounts in the document itself cannot constitute account stated. The striking of the balance must be the result of an agreement between the parties to set off the cross items of the account against one another. No doubt ther Lordships of the Supreme Court observed in the Woodroffe & Co. v S.k. M.A. Majid & Co. 0065/1966 : AIR1967SC181 that the accounts are settled or stated if they are submitted and accepted as correct by the other side to whom the accounts have been rendered and such a statement of account need not be in writing, nor is it necessary that before the accounts are settled, they should be gone into by the parties and scrutinised and supported by vouchers. Their Lordships have themselves pointed out in the latter part of their judgment 'that the expression 'account stated' has more than one meaning. It sometimes means a claim to payment made by one party and admitted by the other to be correct.' Their Lordships have further made it clear that there is a second kind of account stated where the account contains items both of credit and debit and the figures on both sides are adjusted between the parties, and a balance struck. Such account stated has been called as a real account stated. It is this second kind of 'account stated' which is envisaged in Article 64 of the Indian Limitation Act, 1908 and Article 26 of the Limitation Act, 1963. The language in the third column of the Article, in my opinion, makes the position crystal clear, as the words used are - 'when the accounts are stated in writing signed by the defendant...' I have no doubt in my mind that in order to constitue a statement of accounts within the meaning of Article 64 (old) or Article 26(new) two things are essential:
(1) There must be cross items of account though they need not be in respect of mutual or independent dealings.
(2) The striking of the balance must be the result of an agreement between the parties.
6. I am further of opinion that an account stated must on the face of it purport to contain the accounts as a result of which the balance struck is found payable. I am unable to subscribe to the view propounded by the learned Counsel that a document may be construed as an account stated by proving by external evidence that the balance was arrived at after going through the cross items of account even though the document itself may not contain any accounts. Admittedly in the present case only a balance has been struck in Ex. 1 without any account and consequently Ex. 1 cannot amount to account stated and is only an acknowledgement of debt by the defendant. It is conceded that if Ex. 1 is not held to be an account stated, the suit must fail as barred by limitation. The judgment and decree of the court below do not call for any interference and consequently I dismiss the appeal, but without any order as to costs.
7. Learned Counsel prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is disallowed.