ABDUL SATHAR SAIT Vs. RAGHAVAN

JUDGEMENT

(1.) This Second Appeal arises out of a suit for recovery of money. According to the plaint allegations, defendants 1 and 2 were having a pattuvaravu account with the plaintiff and it was found on 16-7-1115 that a sum of Rs. 409-13-9 was due to him from the defendants. The suit was brought on 21-5-1118 for the recovery of the said amount and interest thereon. Defendants 3 to 7 are the legal representatives of the first defendant, impleaded after his death. The defendants contested the suit, and their main contentions were that as the transactions were on account of a cooperative society it was the cooperative society and not they who were liable under the pattuvaravu account, that a sum of Rs. 300/- was paid to the plaintiff in full discharge of his claim and he had agreed to relinquish the balance, and that the suit was in any event Barred by limitation. The Trial Court found that the defendants were liable for the amount, that the amount of Rs. 300/- was not paid in full discharge of the plaintiff's claim and a balance of Rs. 409-13-9 was due to him even after that payment on 16-7-1115, and that the suit was not barred by limitation as it was governed by Art.73 of the Cochin Limitation Act corresponding to Art.73 of the Indian Limitation Act. Consequently it gave a decree to the plaintiff as sued for by him. From that decree the fourth defendant appealed to the District Court of Anjikaimal. In the appeal the learned District Judge also held that the defendants were liable under the Pattuvaravu account and could not plead that it was the cooperative society that was liable, that the payment of Rs. 300/- was not in full discharge of the plaintiff's claim, and that the pattuvaravu account in question was a mutual, open and current account at its commencement. But he held that the account was closed on 16-7-1115 and that it was not an open and current one after that date. Consequently he held that Art.73 of the Cochin Limitation Act did not apply to the case and that the suit was barred by limitation; and on that finding he allowed the appeal and dismissed the suit with costs in both courts. Plaintiff has hence filed this second appeal.

(2.) On the evidence in the case and the findings recorded by the courts below two facts emerge beyond dispute. One is that the account between the parties was a mutual, open and current account at its commencement, and the other is that there was a sort of settlement on 16-7-1115 when a sum of Rs. 300/- was paid to the plaintiff in partial discharge of his claim and a balance of Rs. 409-13-9 was found due to him. The respondents' counsel contended that the sum of Rs. 300/- was paid in full discharge of the plaintiff's claim and that whatever balance due to him was agreed by him to be relinquished. In view of the concurrent findings of the courts below it is not open to him to advance this contention in second appeal. On going through the evidence in the case I am not also satisfied that the concurrent findings of the courts below in regard to this matter is incorrect.

(3.) Since there was a taking of accounts and a partial adjustment on 16-7-1115 and since there was no transaction between the parties after 16-7-1115 and the plaintiff admitted in his evidence that he had stopped his business in 1116, the lower appellate court took the view that the account was closed on 16-7-1115; and on the strength of the decision in AIR 1933 Bombay 450 it held that Art.73 of the Cochin Limitation Act corresponding to Art.85 of the Indian Limitation Act would not apply to the case as the account was not open and had been closed on 16-7-1115. The view that there was a settlement of accounts on 16-7-1115 and that the account was closed after that date derives much support from the evidence of DW 2 and the plaintiff himself. Even so, I am unable to accept the lower appellate court's conclusion that the suit is barred by limitation. The suit was one for amount found due on adjustment of accounts (vide paragraph 1 of the plaint). In a case of adjustment of accounts, when there is a balance found due even after the adjustment, there is an implied agreement by the debtor to pay the balance to the creditor, and a suit for the balance found due after the adjustment of accounts, necessitated by the failure of the debtor to pay the balance, is therefore one for compensation for the breach of an implied contract and is governed by Art.115 of the Indian Limitation Act corresponding to Art.105 of the Cochin Limitation Act. This view is fortified by the decision in Madhawdas v. Santramdas, AIR 1933 Sind 324, and Jalim Singh Srimal v. Choonee Lal Johurry, 11 Indian Cases 540. In Madhowdas v. Santramdas it was held that the agreement made at the time the balance was struck afforded a fresh cause of action to the plaintiff and a suit based for the recovery of the balance would fall either under Art.115 or Art.120 of the Indian Limitation Act. In Jalim Singh Srimal v. Choonee Lal Johurry, it was held that by virtue of the adjustment there was a new cause of action originating from the date of the adjustment and that the fact that the adjustment was not signed did not deprive the plaintiff of his cause of action. In this view the plaintiff's suit is not barred by limitation and the decree of the lower appellate Court dismissing it on the ground that it was barred by limitation has to be reversed.