RAGHUNATH SHAW Vs. KANAI LAL DAS

JUDGEMENT

(1.) This Rule arises out of a decree passed by the Small Cause Court Judge, 1st Subordinate Judge, Hooghly, against petitioner Raghunath Shaw and some other opposite parties in a suit for recovery of a sum of Rs. 579/8/6 on khata account. According to the allegation of the plaintiff opposite party one Shyamlal Shaw who was the predecessor-in-interest of the petitioner of this Rule and opposite parties Nos, 2 to 5, had purchased a certain quantity of rice from him and a sum of Rs. 579/8/6 was outstanding on account of the transaction between the plaintiff opposite party and Shyamlal. The suit was instituted against the heirs of Shyamlal.

(2.) The suit was contested by the present petitioner who denied the liability and also took a plea of limitation. The defence of the petitioner was negatived and the suit was decreed against all the heirs of Shyamlal and there was a direction that the decretal dues would be realised from out of the assets of Shyamlal. The present Rule was obtained by Raghunath Shaw one of the sons of Shyamlal.

(3.) Mr. Roy Choudhury who supported the Rule contended that the learned trial Judge of the Court of Small Causes went wrong in law in deciding the question of limitation. He submitted that the suit was instituted after the lapse of more than three years from the date of the last transaction of sale of rice and so the Court below should have held that the suit is barred by limitation. Mr. Roy Choudhury contended that the proper article of the Limitation Act applicable to this case was Article 52 of the First Schedule of the Limitation Act. That Article lays down that the period of limitation for recovery of the price of goods sold and delivered is three years from the date of the delivery of the goods where no fixed period of credit is agreed upon. In the present case no such period of credit was agreed upon between the parties and admittedly all the dates of delivery of the goods were outside a period of three years from the date of the institution of the suit. The Court below held that Article 85 of the Limitation Act is the proper Article which is to be applied to this case. There can be no doubt that Article 85 has no implication, because it provides for a period of limitation in respect of mutual, open and current account. The Court below has found that during his life-time Shyamlal paid some money towards the unpaid price and that date of payment was within a period of three years from the date of the institution of the suit. Such a payment, however, does not make the account a mutual, open and current account. The account was one-sided and that Was the khata account of the plaintiff opposite party where the transactions were regularly ente'red. In these circumstances, I am definitely of opinion that the Court below committed an error in law in holding that Article 85 of the Limitation' Act should be applied to this case and that limitation would run from the date when the purchaser made his last payment. The suit was governed by Article 52 of the Limitation Act and the claim of the plaintiff opposite party was prima facie barred by limitation.