KISHORE AND CO Vs. KARSANBHAI DESALBHAI

JUDGEMENT

(1.) The revision petitioner before me is a partnership Firm of Income-tax and Sales-tax Practitioners functioning at Rajkot and the respondent was admittedly doing transport business at Rajkot. The revision arises out of the dismissal of a suit filed by the revision petitioner as plaintiff for recovery of a sum of Rs. 1 750 claimed as due to the plaintiff Firm by way of fees from his client-the defendant. It has been found that the claim to the fees has been proved but the plea of limitation set up by the defendant has been accepted and the suit dismissed. So the sole question that arises in this revision concerns the question of limitation. 2 The Small Cause Suit by the petitioner firm was one claiming that the firm had attended to the income-tax work of its client-the respondent for the assessment years 1963-64 to 1976-77 in all for 14 years and for such professional work done by the firm accounts are said to have been settled by the respondent with the petitioner on 26 at Rs. 125.00 per year thus in all amounting to Rs. 1 750 The bill said to have been prepared on 26-12-1978 is said to have been given to the respondent but the respondent is said to have failed to pay the same for a pretty long time. Thereafter there was a registered notice on 14-4-1979 demanding payment and on non-payment the suit was filed on 20-6-1980. Though the case of the defendant that he had paid off the fee from time to time was not accepted evidently the Court did not also accept the case of settlement for in that event the suit would be within three years and therefore there would be no scope for dismissal. It therefore found that the claim being beyond three years from the date when the work was done was time-barred.

(2.) The question arises as to what Article of the Limitation Act applies. The case of the revision petitioner is that no specific Article in the Schedule to the Limitation Act 1963 (36 of 1963) would apply to the case in question and therefore the residuary Art. 113 should apply and if that be so the right to sue will survive for a period of three years from the date when the right to sue accrues. He has further stated that the right to sue accrues only when the demand for payment for the work done was made and such demand was refused and in this case the bill having been served only in 1978 and that having been not honored thereafter a suit filed in 1980 would be within the period of three years. The case of the respondent is that Art. 18 of the Schedule would apply in this case since this is a case where the plaintiff is suing for the price of work done to the defendant at the defendants request and no time had bee fixed between the parties for payment. In such a case the period would be three years from the date when the work was done.

(3.) The residuary Article would come in for application only if no other Article would suit the facts of the case. It is not that the application of the residuary Article would ultimately make any difference in this case for assuming the residuary Article applies it would certainly be not right to say that the cause of action accrues only when the plaintiff chooses to present the bill and thereupon the defendant refuses. If say for a period of 30 or 40 years a person does not demand an amount which is due to him but chooses to make his demand thereafter and it is not respected it does not mean that the cause of action would arise then. That would that the plaintiff could keep his cause of action alive for all time by postponing making a demand. Cause of action in a case where there are mutual obligations arises on such mutual obligations coming into existence. If A expressly or impliedly agrees to pay B for services done by him on A performing his services the obligation of B to pay arises unless it be that parties stipulate to postpone payment to some other date or or. demand. It may be that parties contemplate the obligation of one party to arise on the performance by the other only on the happening of a contingency in which case it would arise on the happening on such contingency. But it will be senseless to say that wherever no time for payment is fixed cause of action would arise despite mutual obligation having already arisen only on demand being made by one party and that could be at any point of time. Therefore even assuming that Art. 113 is the Article appropriately applicable to the case the commencement of the cause of action would not be on the issue of the bill as contended but on the obligation to pay arising as against the defendant. Under Art. 18 of the Schedule also the starting point would be identical except in a case where parties stipulate as to time for payment. There is no case that there is any such stipulation or agreement here. Therefore if the case falls under Art. 18 the cause of action would arise when the work is done by the plaintiff for it would give rise to the obligation on the defendant to pay in the absence of a stipulation of time for payment. That would be the time the cause of action would arise even under the residuary Article . Therefore in effect it would make no difference.