SARABHAI HATHISING Vs. SHAH RATILAL NATHALAL SHARE BROKER

JUDGEMENT

(1.) The plaintiff filed the present suit against the defendant to recover a sum of Rs. 23 528 P. which consisted of the principal amount of Rs. 22 342 P. lent by the pontiff to defendant 1 firm and Rs. 1186- 35 P. as and by way of interest. Defendant 1 is the firm to which moneys were advanced by the plaintiff from time to time. Defendants 2 to 11 are the partners thereof. The suit was filed in the City Civil Court at Ahmedabad as sum nary suit. After tale defendants entered their appearance in the suit the plaintiff took out a summons for judgment. At the hearing of the summons for judgment defendants 2 to 8 and 10 admitted the plaintiffs claim. Therefore decree on admission was passed against them. Defendants 1 9 and 11 contested tale suit. They were granted unconditional leave to defend the suit. In the written statement which they filed they raised three principal contentions. According to them the suit was barred by time defendants 2 to 8 and 10 had no authority to acknowledge the liability on behalf of defendant 1 firm and the suitdebt was not created for the business of diffident 1-firm. The learnedtrial Judge negatived the defence raised by the contesting defendants and passed in favour of the plaintiff decree for the entire amount.

(2.) It is that decree which is challenged only by defendants 1 and 11 in this appeal.

(3.) The first contention which has been raised by Mr. Amin who appears on behalf of the appealing defendants is that the plaintiffs claim Was barred by time. The accounts produced by the plaintiff (EXs. 81 82 83 84 and 85) show that the first amount which was advanced by the plaintiff to defendant 1-firm was on Bhadarva Vad 7 of Samwat Year 2013 which is equivalent to 16th September 1957. There are cash book entries at Exs. 76 77 78 79 and 80 which support the ledger entries Exs. 81 to 85. At Ex. 86 is the statement of account written down by defendant 8 on behalf of defendant 1-firm at the end of Samwat Year 2015. It inter alia shows that a sum of Rs. 13 99.08 P. was owed by defendant 1 to the plaintiff on Kartak Sud 1 of Samwat Year 2016 which is equivalent to 1st November 1959. At Ex. 87 is the statement of account written down by defendant 8 on behalf of the defendant 1-firm at the and of Samwat Year 2017. It inter alia shows that on Kartak Sud 1 of Samwat Year 2018 which is equivalent to 9th November 1961 a sum of Rs. 19 920 P. was due from defendant 1-firm. It was payable to the plaintiff. The transactions of money lending between the plaintiff and defendant 1 started on 16th September 1957. Defendant 8 on behalf of defendant 1-firm by Ex. 86 acknowledged the liability of that firm in respect of the amount due and payable to the plaintiff on 1st November 1959. That acknowledgment was made within time. Therefor a fresh period of limitation started running from that date. The second acknowledgment was made on behalf of defendant 1 by defendant 8 on 9th November 1961. That acknowledgment was also made within the period of limitation from the last acknowledgment Ex. 86 A fresh period of limitation therefore started running from 9th November 1961. The present suit was filed on 3rd September 1964. Ex facie therefore the suit was filed within time. We may note that defendant 8 Chinubhai Sarabhai has in terms signed Ex. 86 and Ex. 87 on behalf of defendant 1-firm of Sarabhai Hathising.