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Bholaram Agarwalla Vs. Smt. Jiat and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 2293 of 1947
Judge
Reported inAIR1952Cal92
ActsLimitation Act, 1908 - Schedule - Article 85
AppellantBholaram Agarwalla
RespondentSmt. Jiat and ors.
Advocates:Panchanon Choudhury and ; Nirmal Chandra Choudhury, Advs.
DispositionAppeal allowed
Cases ReferredTea Financing Syndicate Ltd. v. Chandra Kamal
Excerpt:
- .....the lower appellate' court noted six points as being urged before it, the first being as to the point of limitation, just dealt with. the court has dealt with nos. 2, 5 and 6, as recited in the judgment, but has not dealt with nos. 3 and 4. but for the view i take of point no. 2, which i will discuss hereafter, probably it would have been necessary for me to remand the appeal for points nos. 3 and 4 to be dealt with.6. the second point is to the effect that the trial court had failed to observe that the claim in suit had been based not only on the balance of 1349 b. s., but also on the balance of settled account for '1347 and 1348 b. s. and that no account books for the year 1347 b. s. had even been produced. the learned judge, purporting to deal with this point has confused it with.....
Judgment:

Roxburgh J.

1. This is an appeal against a decree of the District Judge of Burdwan affirming a decree of the Munsif. Third Court, Burdwan, in a money suit.

2. The plaintiffs' claim was that the plaintiffs' firm did Aratdari business, the firm of Nupchand Rameswar Lall, defendant No. 1 being one of their customers. The latter used to buy goods in the mofussil, despatch them to the plaintiff firm's godown; the plaintiff firm arranged for on the instruction of and with the permission of the defendant firm for the sale of the goods so purchased, and they charged certain sum by way of commission and also incidental expenses. The plaintiff firm also used to advance sums to the defendant firm by way of financing their business. All the transactions were entered in one account, the balance being struck out from time to time. The plaintiffs, therefore, contended that the account kept was a mutual open account and they sued for the balance shown on the 25th Agrahayan, 1349 B. S. when the transactions were closed, namely, Rs. 866-12-6 pies together with interest at the rate of 9 per cent per annum. The total claim was Rs. 1,100/-.

3. The main point in dispute throughout has been the question of limitation. Both the Courts have found in favour of the plaintiffs that the account was a mutual open account and the Article 85 of the Limitation Act would apply.

4. In my opinion, there can be no doubt that their decisions are correct. It is not necessary to refer to any case other than that of the 'Tea Financing Syndicate Ltd. v. Chandra Kamal', 34 Cal W N 1175. One of the main points urged before me to contest the views of the lower Courts on this point is that the balance as shown was always in favour of the plaintiffs. The case cited is sufficient to dispose of that contention. As far as I can see, there, is nothing whatever in the nature of the transactions in effect to have prevented the balance swinging to the other side. The mere fact that it never did so is, therefore, in no way material. The financing and the supplying of the goods for sale were independent transactions in my opinion, creating independent liabilities, but the two independent liabilities, were mutual and adjusted in one account.

5. There are, however, difficulties in supporting the decrees of the lower Courts. The lower appellate' Court noted six points as being urged before it, the first being as to the point of limitation, just dealt with. The Court has dealt with Nos. 2, 5 and 6, as recited in the judgment, but has not dealt with Nos. 3 and 4. But for the view I take of point No. 2, which I will discuss hereafter, probably it would have been necessary for me to remand the appeal for points Nos. 3 and 4 to be dealt with.

6. The second point is to the effect that the trial Court had failed to observe that the claim in suit had been based not only on the balance of 1349 B. S., but also on the balance of settled account for '1347 and 1348 B. S. and that no account books for the year 1347 B. S. had even been produced. The learned Judge, purporting to deal with this point has confused it with the point of limitation. The fact that under Article 85 the plaintiffs are allowed to claim dues which in effect date from the year 1347 B. S., owing to the nature of the provisions of Article 85, does not absolve the plaintiffs from the necessity of proving that the balance of 1347 B. S. was in fact due, and I am unable to appreciate how it can be said that the balance of 1347 B. S which was Rs. 4,179-14-3 pies, can be said to have been proved to be due merely by an entry in the account of 1348 B. S. At this stage of the proceedings, I do not think that the plaintiffs can ask for the indulgence to be allowed to produce the accounts of the year 1347 B. S.

7. The result is that in taking the account a deduction of the balance of 1347 B. S. has to be made and the result therefore is that on the only balance on the accounts which the plaintiffs can establish, they are not entitled to a decree for any sum.

8. The result is that the appeal is allowed. The decrees of the lower Courts are set aside and the suit is dismissed.

9. There will be no order as to costs.


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