VIJAYKUMAR SATISHCHANDRA AND CO Vs. RAJGOPAL BADRINARAYAN MALPANI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 27th April, 1987 passed by the learned Joint Civil Judge, Senior Division, Solapur, in Special Civil Suit No. 119 of 1981.

(2.) THE suit was filed by the respondents-plaintiff for recovery of a sum of Rs. 61,357. 50 with future interest. It is submitted that the plaintiff is a registered firm dealing in trading in cloth as a commission agent. Defendant No. 1 is a registered partnership firm and defendant Nos. 2 and 3 were its partners. The defendants were doing the trade business in cloth. It is submitted that the appellant No. 1 defendant No. 1 firm had kept a khata with the plaintiff-firm at Solapur for purchasing cloth on credit. Accordingly, clothes were purchased on credit at Solapur and also took delivery of the same at Solapur. They promised to pay the amount of the goods purchased by them at Solapur from time to time. The vasul paid by the defendants came to be credited in the khata and the balance vasul shown against the principal amount. It is the case of the plaintiffs that by the end of 15th June, 1981 the appellants-defendants were in arrears of Rs. 61,074. 10. It is also submitted that according to the trade custom and the agreement between the parties, the appellants-defendants have agreed to pay interest at the rate of Rs. 1,25 percent per month on the arrears of the amount. As the appellants-defendants failed to pay the arrears despite notice issued by the respondents-plaintiffs on 19th June, 1981, the suit was filed by the plaintiffs-respondents. After framing the necessary issues and recording evidence of the parties, the learned trial Judge partly decreed the suit by his judgment and order dated 27th April, 1987 with proportionate costs. Defendant Nos. 1 to 3 were held liable to pay jointly and severally an amount of Rs. 57,799. 90 to the plaintiffs and to pay future interest on the principal amount of Rs. 32,335. 30 at the rate of 12 percent per annum from the date of the suit till realisation. Under the said decree, the appellants-defendants were also ordered and permitted for the price of goods sold and delivered Three Years the date of where no fixed period of credit is agreed upon. delivery of goods" It has been submitted that the learned trial Judge has also held that the suit falls under Article 14 of the Indian Limitation Act, yet the present suit being a suit on the account book, the vasul paid by the defendants within three years from the date of the last vasul, gives a fresh extension of limitation for another three years under section 20 of the Indian Limitation Act. It has been submitted that this observation is unsustainable in view of the clear provisions of Article 14 of the Limitation Act. In support of his argument, the learned Counsel has relied on a ruling in (Atmaram Vinayak Kirtikar v. Lalji Lakhamsi) reported in A. I. R. 1940, Bombay page 158, another ruling in (A. K. S. Muhammad Sultan Rowther and Co. v. Manickam Chettiar) reported in A. I. R. 1961, Madras page 388; and another ruling in (Bibhuti Bhusan Bose v. National Coal Trading Co.) reported in A. I. R. 1966 Patna page 346. In the case of Atmaram, (supra), it has been held thus:-

(3.) IN the result, the appeal is allowed. The judgment and decree dated 27th April, 1987 passed by the learned Joint Civil Judge, Senior Division, Solapur in Special Civil Suit No. 119 of 1981 is quashed and set aside, and the suit itself is dismissed. In the circumstances of the case, there will be no order as to costs. Appeal allowed.