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Maurice Mayahas Vs. W. Morley and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1925Cal937,87Ind.Cas.508
AppellantMaurice Mayahas
RespondentW. Morley and anr.
Cases ReferredGarden v. Bruce
Excerpt:
- .....by cheque ....rs. 1,000.'12. the defendant andrews in the witness-box has stated that he gave a cheque in payment for the two pieces of serge which are to be found in the first bill and that the balance of the goods were to be returned. nothing of the sort, suggesting appropriation by andrews, was put in cross-examination to the plaintiff's witnesses. it seems to me rather strange that a sum not even sufficient to cover the first of the two bills, should be appropriated to the two bills in order, if necessary, to save limitation in respect of each; but nevertheless the plaintiff is in law entitled so to do unless an appropriation has been made by the person making the payment. in my opinion, there was no such appropriation by andrews when the payment was made and the plaintiff was.....
Judgment:

Buckland, J.

1. This is a suit to re-cover a sum aggregating Rs. 4,069 as the balance of the price of goods sold and delivered. The plaintiff sues two defendants, William Morley and Percy T. Andrews, who, he says, until January 1921 were carrying on business in partnership under the name and style of Morley and Andrews. While they were so carrying on business in partnership, he supplied, at the end of October or beginning of November 1920, the goods specified in the first bill annexed to the plaint, and on the 17th November 1920 the goods specified in the second bill annexed to the plaint. Subsequently more goods were sent to the defendants on inspection. That was in the month of December. In the month of January 1921 the firm was dissolved and later some of the goods were returned. Ha accordingly made out against the defendants the third bill for the value of the goods retained.

2. The defence put forward by the defendant Morley, who is appearing in person, is a denial that he at any time had the goods or that he was even in partnership with his co-defendant and he submits that the claims are barred by limitation.

3. The defendant Andrews has challenged one of the items appearing in the first bill and denies liability for the amount of the third bill, on the ground that the partnership, which he admits, was dissolved in the month of January 1921.

4. The points that arise for decision therefore fall under three different heads, first as to the orders and details of the bills secondly, whether there was any partner-ship so as to make the defendant Morley liable; and lastly, the question of limitation.

5. With regard to the details of the bills, the vouchers have been proved, and there is no doubt in my mind that the details given are correct and that the goods were ordered by Andrews and were supplied.

6. With regard to the items specified in the third bill; I find that the goods, were sent on inspection during the time that the partnership, if there was a partnership, was subsisting. The fact of the subsequent dissolution of such alleged partnership cannot have the effect of absolving the members of the firm, at the time when the goods were sent, from liability, though the cause of action may not have accrued until the return of the goods which were not required. I therefore find as regards the third bill that the defendant Andrews is liable, and also Morley, assuming he was a member of the firm.

7. With regard to the question of partnership, I do not think there can be any question upon the evidence that Morley was a partner. Hi; case is that he was engaged in business elsewhere, and the arrangement between him and Andrews was that he was to devote such time as he could spare from his other business for the purpose of doing work in this tailoring business, which was carried on under the name of Morley and Andrews, and for that purpose he was to at end in the morning and evening. He says he was to have a half-share in the net profits and denies that he was in any way liable for the losses. The plaintiff appears to have regarded him as a partner, though there is no substantive evidence to the effect that he was a partner given by the assistants who have given evidence. But there is the statement of the defendant Andrews, and it was admitted by Morley himself not only that the business was carried on in the name of Morley and Andrews, but that there was a banking account in such name upon which he was entitled to draw cheques. He has also admitted that he signed a lease of the business premises, though he says that he did so as a surety. His explanation as to the use of his name is that without his name no tailoring business would have been done.

8. I find that at the time with which I am concerned the defendant Morley was in partnership with Andrews, and as such may be liable to the plaintiff.

9. I now come to the question of limitation. I will dismiss at once any question of there being a continuous account, such as was before the Court in Kedarnath Mitter v. Dinabandhu Saha [1915] 42 Cal. 1043. It is clear from the evidence given on behalf of the plaintiff that separate and distinct orders were given for the items comprised in the three bills. The bills were submitted separately and the plaintiff refers in the plaint to the causes of action which arose on the 2nd November 1920, the 17th November 1920 and the 14th May 1921, clearly treating the subject-matter of the three bills as giving rise to different causes of action.

10. The plaintiff alleges in the plaint that on the 6th January 1921 the defendants paid Rs. 1,000 by cheque. This is relied upon as an acknowledgment under Section 20 of the Limitation Act. In point of fact it now appears from the evidence given on behalf of the plaintiff by Balmukund Khettry and from the evidence of the defendant Andrews that the cheque was paid by the defendant Andrews to Balmukund Khettry on the afternoon of the 5th January 1921, and so far, therefore, as the cheque extends the period of limitation under Section 20, the fresh period of limitation must be computed from the 5th and not the 6th January 1921. The plaint was filed on Monday, the 7th January 1924, but if limitation should be computed from the 5th January 1921, then obviously it ought to have been filed on the 5th January 1924.

11. Before I deal with this, there is one small point, and that is that the first bill amounts to Rs. 1,200-11; the second bill amounts to Rs. 2,362-3. The payment was Rs. 1,000, which does not even cover the total amount of the first bill. In his plaint, the plaintiff says that the sum was a part payment of the two bills, and this appears from an entry in the plaintiff's cash book, where the payment is entered in these terms:-'Received from Messrs. Morley and Andrews in part payment of bills Nos. 1705-13 by cheque ....Rs. 1,000.'

12. The defendant Andrews in the witness-box has stated that he gave a cheque in payment for the two pieces of serge which are to be found in the first bill and that the balance of the goods were to be returned. Nothing of the sort, suggesting appropriation by Andrews, was put in cross-examination to the plaintiff's witnesses. It seems to me rather strange that a sum not even sufficient to cover the first of the two bills, should be appropriated to the two bills in order, if necessary, to save limitation in respect of each; but nevertheless the plaintiff is in law entitled so to do unless an appropriation has been made by the person making the payment. In my opinion, there was no such appropriation by Andrews when the payment was made and the plaintiff was entitled to make the appropriation in that manner, and the entry in the cash book certainly supports him.

13. But the dates present a more serious difficulty in the way of the plaintiff. It has been contended that though the cheque bears the date the 5th January and though it was paid to the manager of the Plaintiff on that date, nevertheless the actual payment from which the fresh period of limitation should be computed is the date of payment when the cheque was presented at the bank. There is not before me any evidence as to the actual date when the cheque was presented and paid at the bank, but inasmuch as it was handed over to the plaintiff's representative after banking hours on the 5th January, I will assume that it was paid on the 6th January 1921, and this would suffice for the plaintiff's purpose, if his contention is otherwise correct. In support of this contention I have been referred to Garden v. Bruce 3 C.P 300. That was a suit for money lent. The plaintiff in lending the money, handed the defendant a Cheque for the amount. The defendant paid it into his bank and received credit. The plaintiff's bankers paid the cheque some days later. The question there arose whether limitation ran from the date when the cheque was handed by the plaintiff to the defendant or from the date when it was met by the plaintiff's bankers; and it was decided that the action being one to recover money lent limitation only ran from the date when payment was made by the plaintiff's bankers. A number of authorities were there allied in support of the proposition that a cheque, unless dishonoured, is payment and the learned Chief Justice said in his judgment:

I quite agree with all the cases that have been cited, but in all of them the cheque has been treated as an acknowledgment of a pre-existing debt. Here the debt lid not accrue till the payment of the cheque.

14. In those words lie the essential difference between that authority and the case which I have to decide. I have to consider the cheque which was paid on the 5th January from the point of view of an acknowledgment of the pre-existing debt. But the matter, in my opinion, is covered by authority, by which I am bound, viz., the case to which I have already referred,

15. There is the learned Chief Justice said: 'It seems to me clear that if a cheque is delivered to a payee by way of payment and is received as such by him it operates as payment and is an extinguishment to that extent of the debt, though this is no doubt subject to a condition subsequent that if upon due presentation the cheque is not paid the original debt revives.'

16. It is clear that the learned Chief justice was treating the cheque as the payment for later on he observes: 'If I am right in the view that the cheque actually was a payment, the very payment Was in the handwriting of the person making the same.'

17. The plaintiff, it appears to me, is in this dilemma if the payment is not the cheque itself, in which case there is no doubt that the fact of payment appears in the handwriting of the person making it then the payment is the payment by the bank clerk across the counter or presentation of the cheque or as other-wise any occur, and in such case the fact of the payment does not appear in the handwriting of the person who makes it.

18. I hold that there was no acknowledgment within Section 20 of the Limitation Act, and in consequence the claims based upon the first two bills are barred by limitation, but for the reasons which I have already given, as to goods compromised in the third bill, I think the plaintiff is entitled to recover, and consequently there will be judgment against both the defendants for Rs. 1,501-8, with costs on scale No. 2 interest on judgment at 6 per cent.


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