NARAYANA PILLAI Vs. NARAYANAN VANAJAKSHI

JUDGEMENT

(1.) This Civil Revision Petition by the defendant in a Small Cause suit is directed against the decree passed against him for recovery of a sum of money alleged to be due as the price of goods sold. The plaintiffs case is that the defendant was getting goods on credit from the shop belonging to Neelakantan Nanoo, the deceased husband of the 1st plaintiff and father of plaintiffs 2 to 5. The balance due on 11.2.1953 was Rs. 75-12-2. The plaintiffs as heirs of Neelakantan Nanoo sued for recovery of the same. The defendant denied the transaction alleged in the plaint. According to him the transactions were closed before 1952. There was a further contention that the suit was barred by limitation. The learned Munsiff found that the defendant was getting goods on credit as alleged by the plaintiffs. The question of limitation was not decided. The suit was accordingly decreed in terms of the plaint.

(2.) The two points pressed by the petitioner are: (i) that the plaint transaction is not proved, and (ii) that the suit is barred by limitation. As regards the first point the learned Munsiff believed PW. 1 and disbelieved the defendant who was examined as DW. 1. I do not think it proper to interfere with this finding in revision. On the question of limitation, the defendant is entitled to succeed in respect of the major portion of the claim. The suit admittedly is one governed by Art.52 of the Limitation Act which provides a period of three years from the date of delivery of the goods. The point raised by the learned counsel for the plaintiffs Respondents is that the cause of action arises on the date of the last transaction and that the suit having been instituted within a period of three years from that date, is not barred by limitation. In support of this argument, reliance was placed on the decision of Mulla, J:, as he then was in Najan v. Salemahomed, AIR 1923 Bom. 113. The view taken by Sir Mulla is that if all the items constituting the transaction form but one cause of action, it is idle to suggest that a part of it can be barred by limitation and that the rest may not be so barred. Sir Mulla relied on the following passage in Bonsey v. Wordsworth, 1856 (18) C.B. 325:

(3.) This question came before a Division Bench of the Bombay High Court in Atmaram Vinayak Kirtikar v. Lalji Lakhamsi, AIR 1940 Bom. 158. Beaumont, C.J., who wrote the leading judgment considered the decision referred to above and dissented therefrom. It was observed by the learned Chief Justice that the principle that limitation does not destroy the right but bars only the remedy was not noticed by Sir Mulla in the earlier case. The learned Chief Justice pointed out instances in which it is possible to have one cause of action which is enforceable in part and unenforceable in part, such as a claim for mesne profits part of which may be barred by limitation. It was also pointed out that according to Art.52, the starting point of limitation was not the accrual of the cause of action but the date of delivery of the goods. Even though the cause of action in a case like the present one may be one for all the items delivered to the defendant, the starting point of limitation must be taken to be the date of delivery of the goods. These goods were delivered on various dates and the date of the last delivery cannot be taken to be the date of delivery of goods on earlier occasions. It may here extract the following passage from the judgment of Beaumont, C.J.