KIRITSINHJI BHAGWATSINHJI Vs. PHARAMROJ PIROJSHAH WADIA

JUDGEMENT

(1.) Thus, although the plaintiff's theory that the oral agreement as set up in plaint para 2 was arrived at the very commencement of the transactions, namely, in year 1941, is not proved as such, in our opinion, the plaintiff has successfully shown a course of dealings and transactions between the parties that had taken place even since 1938 upto year 1952 when the parties fell out, presumably because of the differences in relation to the partnership business which was carried on between the plaintiff and the defendant in the name of Wadia Kiritsinh Transport for which the plaintiff has filed Regular Civil Suit No. 874 of 1963 for dissolution of partnership and accounts, that there was a sort of a peculiar over-all understanding between the parties in the matter arising out of a peculiar relation resulting in trust and confidence in each other, as we shall presently see, while delaing with the question of limitation.

(2.) Mr. Mehta's contention on the point of limitation is that the transactions between the plaintiff and the defendant were distinct transactions falling under four distinct heads: (i) for the price of goods sold and delivered where no fixed period of credit was agreed upon: (ii) for the price of work done by the plaintiff for the defendant at his request, where no time had been fixed for payment; (iii) for money payable for money lent; and (iv) for money payable to the plaintiff for money paid for the defendant, respectively covered by Article 52, 56, 57 and 61 of the Indian Limitation Act, 1908 (Act 9 of 1908). As regards the fist category of transactions. Mr. Mehta;s particular submission is that the Court is bound to check up the various items which go to constitute that cause of action and to apply Article 52 to deliveries which took place more than three years before the filing of the suit, although the cause of action is one, namely for the price of all the goods delivered. For the purpose, Mr. Mehta has rlied upon the decision in Atmaram Vinayak v. Lalji Lakhamsi, AIR 1940 Bom 158 = (42 Bom LR 227). Mr. Mehta's overall submission in substance is that transactions are distinct transactions governed by the aforesaid relevant articles of the Limitation Act. Now here, it may be remeberd that although the plaintiff had supplied the defendant with copies of the relevant accounts and bills respectively with the notice Ex. 45 and reply Ex. 48 and had also filed the accounts from Samwat year 2004 to Samwat year 2010 (from 1948 A.D. to 1954 A.D.) as annexures to the plaint, and although the defendant had ample opportunity to examine the various items of accounts, in his written-statement, not only did he not challenge any specific items of accounts and put up a positive case, but what is more significant is that he did not raise any plea of the bar of limitation and did not make any averment of fact showing that the items of accounts or any one or more of them were barred by limitation, having regard to the nature of the transactions. It is true that Section 3 of the Limitation Act requires that although limitation has not been set up as a defence, every suit instituted after the period of limitation prescribed therefor by the First Schedule to the Limtation Act shall be dismissed. But, this cannot be taken to mean that when limitation has not been specifically pleaded in the defence and the facts are not apparent on the face of the record, the Court is bound to speculate upon possible questions of limitation that may arise in the suit. It appears that it was precisely for this reason that the learned trial Judge appears to have thought it proper to raise relevant issue set out earlier so that the attention of the parties may be focussed on the point. However, the omission to raise such a pleaof the bar of limitation assumes importance in the instant case when what we have to consider is the nature of the manifold transactions, whether they were single and indivisible transactions or whether they were distinct transactions for which different Articles of the Limitation Act might be said to apply. Now, the course of dealings between the parties as evidenced by the testimony of the plaintiff and his witnesses, as also the accounts that have been produced by the plaintiff at Exs. 9 to 42 show the real nature of the transactions. The course of dealings discloses that the relations between the parties were cordial ever since the year 1938 when the defendant had purchased a motor car from the plaintiff. The relations appear to have grown thicker and each confined in the other. The evidence reveals that the plaintiff was in the effective control of the firm of M/s. P.H. Wadia & Sons which carried on the business on the supply of provision materials, sale and purchase of motor cars, repairs of motor cars sale of motor spare parts and accessories etc., ever since 1938 and that when the partnership was dissolved at the close of Samwat year 2005 (1949 A.D.) he became the sole proprietor of the concern. The relation had its origina some time in the year 1938 between the plaintiff who was residing in Rajkot and the defendant, who was a Prince or the Ruler of the nearby Gondal State and was working as a Road Superintendent of Gondal State and resided in Gondal, a nearby town. The transations continued all along until almost the end of year 1952 when the parties appear to have fallen out, because of some dispute inter se relating to their partnership firm started in year 1949 in the name and style of Wadia Kiritsinh Transport. It appears that during all this intervening period, Rajkot was the place from which the defendant used to obtain most of his requirements of provision materials, cloth, motor-car, etc. Defendant used to make purchases of provision materials and other articles from the firm of M/s. P.H. Wadia & Sons on credit. The defendant used to purchaase cloth and some other articles from some merchants in Rajkot, most of it on credit. The purchases weremade and goods were obtained by the defendant from Rajkot either personally or through his trusted servant named Abedbhai, who was working in his bungalow since last about 35 years, and also through Abedbhai's sons Alibhai, Mamadbhai and Abdulla of whom Abdulla has subsequently become the heir, on the death of the defendant pending the hearing of the appeal, as shown in the title cause of the appeal before us. The acceptable evidence shows that the plaintiff was also looking after the various affairs and requirements of the defendant at Rajkot, sometimes paying up defendant's bills payable to other merchants in Rajkot giving cash amounts to the defendant and his servants to make some cash purchases or make payments of defendant's various bills in Rajkot, even paying off the defendant's Gymkhana bills and somemedical bills of treatment of defendant's dog by a veterinary surgeon at Rajkot, attending to defendant's income-tax matters, making payments by cheques of large amounts of income-tax payable by the defendant, and attending to all and sundry works entrusted to him by the defendant. The defendant had admittedly purchased a motor car from the plaintiff. Defendant's motor-cars were repaired in plaintiff's workshop and spare parts and accessories were supplied by the plaintiff from his stores and all this on credit. In short, the plaintif worked as a sort of defendnat's general agent and financier in Rajkot, supplied provision materials and other goods on credit, procured the required goods from other shops for the defendant, repaired motor cars in his workshop, supplied motor spare parts and accessories, paid bills of defendant's creditors, gave cash amounts to pay off the defendant's other bills, paid income-tax amounts on behalf of the defendant from his own Bank balance and attended to all and supply needs of the defendant. This appears to have been a peculiar relationship which had grown up between the parties during the course of years beginning from 1938. All these transactions have been entered into in one single account of the defendant maintained by the plaintiff. Monyes were debited in defendant's single account, Debit memos, debit vouchers and statement of accounts were from time to time given by the plaintiff to the defendant or his trusted servants. Payment was never demanded until in the year 1952 when the relations became strained. This was all because of the great confidence and trust the plaintiff had reposed in the defendant and vice versa. This peculiar course of dealings shows that moneys due to the plaintiff at the foot of accounts of the transactions were payable on demand. In any event, such appears to have been the tacit understanidng. Although the transactions can be classified under eight broad heads as observed by us earlier, in substance it was all part of a single and indivisible arrangement and the plaintiff's claim for the suit amount cannot be split up into different items for applying the bar of limitation. It is not the case of the defendant that demand of the moneys due was made by the plaintiff at any time earlier. Mere giving of debit memos, vouchers, statements of accounts, etc., do not amount to a demand and that was never the case of the defendant. Apart from the fact that the defendant has not in his written statement raised a plea of bar of limitation, we find that no case was set up that the suit transactions were divisible and separate transactions. Even in his evidence the defendant has not made any statement indicating the distinct and divisible nature of the transactions. There is no reason to classify the suit claim into four distinct heads as contended by Mr. Mehta. The defendant has not challenge plaintiff's deposition stating that the demand of the suit dues was made by him of the defendant personally in August 1952 for the first time. Defendant's conduct as reflected in the course of dealings actions were all to be treated as part of an over-all implied arrangement or agreement, a sort of a composite agreement, to treat the transactions, as one and indivisible, the amount due being payable on demand. In our opinion, all these facts and circumstances lead to a reasonable conclusion that the parties treated the transactions as part of one and indivisible over-all arrangement at least impliedly. Thus, although the oral agreement pleaded by the plaintiff in para 2 of the plaint, namely, that the arrangement was arrived at at the very commencement of the suit transactions, meaning in the year 1941, is not satisfactorily proved, the fact that such was the arrangement impliedly arrived at between the parties during the course of the transactions is amply borne out by the course of dealings between the parties, the system of accounting, the nature of the various transactions and the implicit trust one had in the other. The plaintiff would not have otherwise sat silent for such a long time and gone on supplying goods and making payments of large amounts to the defendant or on his behalf over a number of years. It must here be remembered that the plaint para 2 also speaks of such an understanding having been arrieved at during the course of the transactions. The case set up in plaint para 2 as regards the understanding is two-fold: (i) that it was arrived at at very commencement of the suit transactions; and (ii) that it was also arrived at during the course of the transactions or dealings between the parties. Thus, if we say that the agreement was to treat the transactions as one and indivisible and the transactions as one and indivisiable and that this was a sort of a composite arrangement by virtue of an implied over-all agreement fo which the payment was to be made by the defendant on demand made by the plaintiff, such an understanding, in our opinion was implicit and is covered by the pleadings. On these premises, the suit relief is clearly within limitation, the demand having been made by the plaintiff on December 21, 1952, by notice Ex. 45 and the suit having been instituted on July 7, 1954. Mr. Mehta's contention that the suit relief is not founded on pleadings has thus no merit.

(3.) It is true that if a party asks for a relief on a clear and specific ground and in the issues or at the trial, no other ground is covered either directly or by necessary implication. It would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. A party cannot be permitted to justify its claim on a ground which is entrely new and whih is inconsistent witht ground made by it in its pleadings. But, even in such a case, considerations of form cannot override legitimate considerations of substance. As observed by the Supreme Court in Bhagwati Prasad v. Chandramaul, AIR 1960 SC 735 at p. 738: