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Sm. Monorama Dasi Vs. Anil Kumar Ghose - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1383 of 1953
Judge
Reported inAIR1960Cal212
ActsLimitation Act, 1908 - Articles 57 and 64
AppellantSm. Monorama Dasi
RespondentAnil Kumar Ghose
Appellant AdvocateSukumar Ghose, Adv.
Respondent AdvocateAnil Kumar Sen, Adv.
DispositionAppeal dismissed
Cases ReferredSatish Chandra v. Rarnpada Chattopadhyaya
Excerpt:
- .....terms:'descriptionof suit.periodof limitation.time from which period beginsto run.64. for money payable to theplaintiff for money found to be due from the defendant to the plaintiff on accountsstated between them.threeyears.when the accounts are stated.in writing signed by the defendant or his agent duly authorised in thisbehalf, unless where the debt is, by a simultaneous agreement in writing signedas aforesaid, made payable at a future time, and then when that timearrives'.9. it would appear that in order that a suit may be governed by article 64 of the limitation act, it must be a suit for recovery of money payable to the plaintiff for money which has been found to be due from the defendant to the plaintiff upon a statement of accounts between them. this clearly indicates.....
Judgment:

Renupada Mukherjee, J.

1. The only question of law involved in this appeal is whether a statement of accounts made in a hatchita by the defendant, where no balance has been struck, and where there is no agreement by the debtor, express or implied, that the difference between the credit and debit sides is payable to the creditor is governed by Article 64 of the Indian Limitation Act.

2. The above question of law has arisen from the following facts and circumstances about which there is no dispute between the parties at present, Respondent Anil Kumar Ghose who is a contractor took advances of money from the deceased husband of the appellant from time to time. He also made payments from time to time. All these transactions-were entered in a hatchita book which was kept in the custody of the creditor. The hatchita book was marked exhibit 1 in the trial Court. The hatchita would show that accounts were opened on 4th Kartic, 1349 B. S. During the month of Kartic of that year, a sum of Rs. 1600/- was advanced in all to the debtor. This amount was- fully repaid on 3rd Agrahayan, 1349 B. S. After that a sum of Rs. 1930/- was advanced to the debtor in several items from 7th Agrahayan to 29th Magh, 1349 B. S. As against these receipts, the debtor paid in all a sum of Rs. 1210/-. On 10th Sraban 1354 B. S., there was a sort of adjustment of accounts. The receipts commencing from 7th Agrahayan, 1349 B. S., were totalled up, and the debtor himself made an entry in the hatchita that the receipts amounted to a sum of Rs. 1930/-. Similarly the payments made by the debtor were totalled up, and the debtor made an entry in the hatchita that the total amount of payment was a sum of R.s. 1210/-. The suit was instituted by the plaintiff appellant for recovery of the difference between the receipts and the payments together with interest at 12 per cent, per annum. The total amount of claim was Rs. 892/12/9.

3. The main defence of the defendant with which I am concerned in this appeal was that the claim of the plaintiff is barred by limitation inasmuch as limitation should run from the date o each advance. This defence was negatived by the trial Court which held that Article 64 of Schedule I of the Limitation Act governs this case, and so limitation- should run from the date of the statement of accounts, The suit was brought within three years of the date of the alleged adjustment of accounts, and so the trial Court decreed the claim of the plaintiff in part by reducing the rate of interest to six per cent, per annum.

4. The defendant preferred an appeal from the judgment and decree passed by the trial Court, and the Lower Appellate Court held that Article 57 of the Limitation Act governs this case, and a sum of Rs. 120/- only was within the period of limitalion. In that view of the matter, the Lower Appellate Court varied the decree of the trial Court by passing a decree for Rs. 120/- together with interest at six per cent, per annum from the date of the alleged adjustment. This Second Appeal was preferred by the plaintiff from the judgment and decree passed by the Lower Appellate Court.

5. Mr. Ghose appearing on behalf of the plaintiff appellant submitted that the view taken by the Lower Appellate Court that the present case is not governed by Article 64 of the Limitation Act is erroneous in law inasmuch as there was a statement of accounts between the parties within the period of limitation, and the statement was written by the defendant himself in the hatchita book of the creditor. Mr. Ghose contended that although no formal balance was struck showing what amount of money was payable by the debtor to the creditor, the balance can at once be gathered by the figures which were written on the credit and debit sides by the defendant himself. Mr. Ghose further contended that this being the nature of the account, it was not necessary for the statement of the accounts that a formal balance should have been struck in the account book of the creditor.

6. Mr. Sen appearing on behalf of the debtor respondent contended, on the other hand, that in order that a case may come within the purview of Article 64 of the Limitation Act, it is essential not only that the credit and debit sides should be totalled up, but also a balance should be struck, and the parties should also make it clear that the balance is payable by the debtor to the creditor. In the submission of Mr. Sen, two of the essential elements of Article 64 of the Limitation Act are wanting in this case. First, no balance was struck showing how much money was due on the accounts stated between the parties; and secondly, there was nothing to show that the debtor had agreed that the difference of figures between the credit side and debit side was actually payable by the debtor to the creditor.

7. In support of this contention Mr. Sen relied on two Privy Council cases, one of which is reported in 38 Cal WN 813: (AIR 1934 PC 144), Elvira Rodrigues Siqueira v. Gondicalo Nypolito Constancio Naronha, and the other Firm Bishunchand v. Seth Girdhari Lal. The last mentioned case expressly deals with the interpretation of Article 64 of the Limitation Act. Mr. Sen drew my attention to the following observations occurring at page 967 of the report (Cal WN): (at p. 151 of AIR):

'Indeed, the essence of an account stated is not the character of the items on one side or the other, but the fact that there are cross items of account and that the parties- mutually agree on 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. Such a transaction is in truth bilateral, and creates a new debt and a new cause of action. There are mutual promises, the one side agreeing to accept the amount of the balance of the debt as true (because there must in such cases be, at least in the end, a creditor to whom the balance is due) and to pay it, the other side agreeing the entire debt as at a certain figure and then agreeing that it has been discharged to such and such an extent, so that there will be complete satisfaction on payment of the agreed balance.'

8. In my opinion, there is much substance in the contention' of Mr. Sen that some of the essential requisites of Article 64 of the Limitation Act are wanting in this case. That article runs in the following terms:

'Descriptionof suit.Periodof limitation.Time from which period beginsto run.

64. For money payable to theplaintiff for money found to be due from the defendant to the plaintiff on accountsstated between them.

Threeyears.When the accounts are stated.In writing signed by the defendant or his agent duly authorised In thisbehalf, unless where the debt is, by a simultaneous agreement In writing signedas aforesaid, made payable at a future time, and then when that timearrives'.

9. It would appear that in order that a suit may be governed by Article 64 of the Limitation Act, it must be a suit for recovery of money payable to the plaintiff for money which has been found to be due from the defendant to the plaintiff upon a statement of accounts between them. This clearly indicates that the statement of accounts must show that some money is payable by the debtor to the creditor upon adjustment of accounts. This is certainly not evidenced by a mere totalling up of the figures on the credit and debit sides, as was clone in this particular case. Where a suit is one for recovery of money upon accounts stated, the statement of accounts must itself indicate what amount of money is payable by one party to another. A mere totalling up of the figures on the credit and debit sides does not show this. It has been held in a case reported in : AIR1938Cal861 , Satish Chandra v. Rarnpada Chattopadhyaya, that mere acceptance of the accounts as correct by a debtor does not bring the case within the purview of Article 64 of the Limitation Act. In my opinion, a formal striking up of the balance may not be essential, but it is essential that the debtor must show his agreement that the balance due to the creditor upon a statement of accounts is payable by him; otherwise the case would not be governed by Article 64 of the Indian Limitation Act. In my opinion, the Lower Appellate Court came to the correct conclusion of law when it held that on account of the absence of this agreement on the part of the debtor, the entries in the hatchita to which I have already referred and which show only a totalling up of the figures on the two sides in the handwriting of the debtor, do not bring the case within the scope of Article 64 of the Indian Limitation Act. The proper article which would apply to such a suit is Article 57 which lays down that limitation should run from the date of each particular loan. That being the case, this appeal must fail.

10. In the result, I dismiss this appeal, but in view of the circumstances of this case, I direct that parties will bear their own costs in this Court.


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