NANDKISHOR SURAJBALI SHARMA Vs. ONKARLAL BLSHANLAL AGARWAL

JUDGEMENT

(1.) THIS revision petition involves a question regarding limitation -Plaintiff Onkarlal filed a suit for recovery of Rs. 738 -4 -0 against Defendant Nandkishor, on the allegations that the Plaintiff had entrusted to the Defendant at Jabalpur, 14 maunds and 10 seers of Alluminium goods on different dates from 25th January 1950 to 7th February 1950 for sale; that the Defendant sold the goods at Rs. 34 per maund and intimated the fact of that sale by letters dated 20 -2 -1950 and 2 -3 -1950; that the Defendant by his letter dated 10 -4 -1950 admitted his liability in respect of the sale price of the goods in question and agreed to send a draft in discharge of that liability so as to reach the Plaintiff at Mhow by 20th May 1950; that the Plaintiff accepted that agreement and waited for the payment in the manner agreed but that no payment was made by the Defendant. The Plaintiff, therefore, claimed Rs. 479 -8 -0 as the price of the goods and Rs. 258 -12 -0 as interest as per usage of the market. The suit was filed on 16 -6 -1953. The Defendant inter alia raised the question of limitation. The trial Court fixed issue No. 6 covering that contention and tried the same as preliminary. He held that inasmuch as the Defendant had agreed to send the draft in satisfaction of the amount by 20th May 1950, the suit filed on 16 -6 -1953 was within time as the Courts had been closed for summer vacation up to 15 -6 -1953. The Defendant has preferred this revision petition challenging the legality of the view taken, as a result of which the Court could proceed further with the suit for determination of other questions in controversy.

(2.) THE letter dated 10 -4 -1950 is as follows:

(3.) THE three cases relied upon by the opponent have no application in the present case. In Banga Ram Thakurdas v. Raghbir S. AIR 1928 Lah. 938 a surety conveyed by a letter to the Plaintiff that he should advance money to the debtor -defendant up to a certain amount and that he could be responsible for its repayment. Money was advanced in pursuance of the letter but not repaid by the debtor. In a suit by the Plaintiff as against both the debtor and the surety, it was contended that there was no acceptance of his proposal conveyed to him by the Plaintiff and that therefore there was no contract. Bhide J. repelled the contention holding that the terms of the letter sent by the surety were such that the acceptance of the surety's offer was to be complete not by any communication sent to him by the Plaintiff, for the purpose but by his conduct of making payment to the debtor as directed. In this case no such thing is involved. Mr. Singhal's contention that the acceptance in the present case is involved in Plaintiff's conduct in waiting and not filing suit till 20 -5 -1950 has no force. There is no proposal for waiting till 20 -5 -1950 extended for the Plaintiff nor a request to him for not filing any suit.