ATMARAM VINAYAK KIRTIKAR Vs. LALJI LAKHAMSI

JUDGEMENT

(1.) THIS is a revision application from the full Court of the Small Cause Court, Bombay, and it raises an interesting question of limitation.

(2.) THE facts found are that the plaintiff is a grain dealer, and between October, 1933 and October, 1934, he supplied grain on a number of dates to the defendant. THE dates were quite irregular, but there were deliveries during every month, and the defendant paid certain sums on account, the payments being for various amounts, and on irregular dates, and in this suit, which was filed on October 2, 1937, the plaintiffs sue for the balance due. THE case was tried by Judge Nadkarni, who gave a long judgment holding that the bulk of the claim was barred by limitation. THE view he took was that the plaintiff had a separate cause of action in rdspect of each consignment of grain delivered, and that under Article 52 limitation ran from the date of the delivery of each consignment, and therefore the suit was barred in respect of deliveries made more than three years before the commencement of the suit.

(3.) THE case is one of importance because it is a type of case which very frequently arises in the Small Cause Court as the trial Judge points out. THE plaintiffs cause of action is in my opinion for the price of goods sold and delivered, and I can see no ground for saying that the claim is not a claim for the price of goods sold and delivered, but is for the balance due at the foot of an account. THE evidence was of sale and delivery of goods and there was no evidence that the defendant ever had any account submitted to him, or that he ever agreed to be bound by any account, and the mere fact that he paid moneys on account of what was due from time to time, for which he was given credit, cannot alter the nature of the plaintiff's cause of action. But for the difficulty of applying Article 52 I doubt if it would have occurred to the learned Chief Judge to suggest that the cause of action was for moneys due on an account. But though I think that the cause of action is for the price of goods sold and delivered, I agree with Judge Modi in thinking that there is only one cause of action for the whole amount due.