1. This is a second appeal by the plaintiffs in a suit for money due upon a hisab. The plaintiffs' case is that the defendant worked under him as a Tahsildar during the period 1326 to 1334 B. S. For the realisations of that period, the defendant signed a document admitting liability to the extent of Rs. 1291 odd. The plaintiffs based their claim upon this document. The defendant pleaded that he signed the document under undue influence and coercion. The Courts below have agreed in negativing this defence. The defendant also pleaded limitation. The Courts below have agreed in accepting this defence and so dismissing this suit. Hence this second appeal. The aforesaid document Ex. 1 contains items showing realisations yearly made by the defendant from 1326 to 1334 B. S. as credit against remittances yearly made as debit. Then there is a balance struck showing the amount as Rupees 1292-1-8 1/2 g. on the debit side. According to the evidence shown to us this amount was drawn up by an officer of the plaintiffs from the account books of the defendant. Below this there is an entry 'I admit and accept as correct' which is signed by the defendant, Rampada Chatterjee, and dated 31st Chaitra 1338 Section 8. corresponding to 13th April 1932. The present suit was filed on 17th April 1935. The first point taken by the plaintiffs-appellants is that the aforesaid account is an account stated and therefore the suit is governed by Section 64, Limitation Act. Now even if this plea is correct, the suit would appear to have been filed more than three years after the date on the account. The learned advocate for the appellants at first contended that limitation must run from the date of the demand and refusal, but this is not borne out by the language of Article 64, Limitation Act. He next contended that 13th to 16th April 1935 were holidays. This matter was not raised in the Courts below. However the learned advocate for the respondent has pointed out that Tuesday, 16th April 1935, was not a holiday and therefore the argument for the plaintiffs fails. Further it is pointed out by the learned District Judge that the accounting itself cannot be held to be valid in view of the fact that all the items in Ex. 1 were time-barred at the date of the account.
2. Turning to the question as to whether the document Ex. 1 represents an account stated, the learned advocate for the appellants has relied strongly on the cases in E.R. Siqueira v. G.H.C. Noronha (1934) 12 AIR PC 144 and Firm Bishun Chand v. Girdhari Lal (1934) 21 AIR PC 147. In the former case it was pointed out that there were two forms of account stated, one of which is an account which contains entries on both sides, and the parties have agreed that the items on the one side should be set against the items on the other side and the balance only should be paid. It is under this description that the document Ex. 1 is sought to be brought and the contention is that the facts are very nearly similar to those which are found in Firm Bishun Chand v. Girdhari Lal (1934) 21 AIR PC 147. But the similarity is really little. In the reported case the account was drawn up by the creditors in their own account book and below the entry there was a writing by the debtor containing a statement that the sum as found was due after adjustment of account. It was pointed out in that case that the essence of an account stated is the fact that there are crossitems of account and that 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 does not appear to have been the case in the present suit. The judgment of the trial Court shows that the plaintiffs made an attempt to show that in fact the pay of the defendant after 1334 B. S. and dues from him after that year were taken into consideration and both agreed to give up these claims, but that this is contradicted by the plaint itself. Ex. 1 contains nothing more really than a statement of account with an acknowledgment by the defendant; but there is neither agreement nor adjustment. It seems to us therefore that the Courts below were right in holding that this is not a case of account stated.
3. It is next contended that it is at least an acknowledgment under Section 19, Limitation Act. On this point the Courts below have pointed out that that Section does not apply because the items of account were time-barred. In reply to this it is contended that the agency of the defendant was not really terminated in 1334 B. S. but that it continued to 1339 B. S. when the defendant was actually discharged. But the finding of fact is that after 1334 B. S. the defendant was not employed as Tahsildar but he was employed as a clerk in the Cash Department in which capacity it cannot be said that he was an agent under the plaintiffs. On this finding it must be said that Section 19, Limitation Act, does not help the plaintiffs. Next it is stated that at least there is a promise to pay under Section 25 (3), Contract Act. But, it has been held that such a promise must be an express promise which is absent in the present case : Sasbikanta Acharjya v. Sonaulla Munshi : AIR1929Cal444 and Satyakel Dutt v. Romesh Chunder : AIR1933Cal658 . This point also does not help the plaintiffs.
4. The last contention for the appellants is that no limitation can run against plaintiff 1 who is described as a lunatic represented by his wife. If there is anything in this argument, it is strange that it was not raised in either of the Courts below. There is nothing in the plaint to show as to when plaintiff 1 was declared to be a lunatic or that he was a lunatic at the time when the cause of action arose. The learned advocate for the appellants has stated facts which are not in evidence or on the record, and in order to enable the parties to go into those facts, it will be necessary to have the plaint amended. There is no reason why these facts should not have been pleaded at the trial. They were not even suggested either in the trial Court or in the lower Appellate Court. In these circumstances we are not prepared to accede to the appeal being remanded in order to enable the parties to have the matter investigated. The result is that the appeal fails on all the points and is dismissed. The parties will bear their own costs in this Court.