ROHTAS INDUSTRIES LTD Vs. SUKHMOY MOITRA

JUDGEMENT

(1.) This is an appeal under Clause 10 of the Letters Patent by the plaintiff company -- Rohtas Industries Ltd. -- from the judgment and decree dated the 17th November, 1958, passed by a learned single Judge of this Court in First Appeal 541 of 1951, whereby the plaintiff-appellant's suit against the defendant-respondent has been dismissed on reversal of the judgment of the trial Court.

(2.) The only point of controversy between the parties before the learned single Judge as also in this Letters Patent Appeal has been as to whether the plaintiff's suit is barred by limitation. The trial Court held that the suit was not governed by Article 51 of the Limitation Act, as contended on behalf of the defendant, but by Article 115 and hence it is not barred by limitation. Before the learned single Judge of this Court, it was conceded on behalf of the plaintiff and so was it before us that Article 115 would not apply to this case. In support of the decision of the trial Court, however, it was argued before the learned single Judge that the case was governed by Article 85. This argument was rejected and it has been held that the proper Article to apply is Article 51, under which the suit is barred by limitation. Mr. Lalnarayan Sinha appearing in support of this appeal, in the first instance, endeavoured to bring the plaintiff's case under Article 85 of the Limitation Act, but in the alternative, canvassed that even under Article 51 the suit is not barred by limitation.

(3.) The facts as found by the Court below and which were not challenged by the defendant before the learned single Judge have been summarised by him in his judgment under appeal. Briefly stated, they are these. The plaintiff company carries, inter alia, business of manufacturing paper at Dalmianagar. Its practice has been that it purchases bamboos from various contractors for the purpose of manufacture of pulp and makes advances to them against supplies to be made by them on the condition that the price of bamboos supplied according to the mill weight after deduction for moisture will be set off from time to time against the advances until the advances were satisfied. The defendant was one such contractor. In October, 1943, he entered into a contract with the plaintiff for supply of bamboos on the conditions mentioned in the deed of contract dated the 25th of November, 1943 (Ext. 7). The written agreement was only for one year but after its expiry the dealings were carried on between the parties on the same terms and conditions, year after year, of course, rates of bamboos varying from time to time. The accounting year of the plaintiff company is from 1st of November, to 31st of October. During the accounting years of 1943-44, 1944-45, 1945-46 and 1946-47, advances made by the plaintiff to the defendant amounted to Rs. 23100/-. As against that, the defendant supplied bamboos in those years of the total value of Rs. 18786/4/5. Thus, a balance of Rs. 4313/11/6 remained due in the plaintiff from the defendant at the end of the accounting year 1946-47. According to the plaintiff's case, the defendant went on supplying bamboos against the advances made upto May, 1947 but stopped supply after May and did not make any further supply in spite of repeated demands. The plaintiff ultimately served a pleader's notice dated 25th of May, 1949 (Ext. A) on the defendant and the latter in his reply dated the 13th of June, 1949 (which reply is not in the records of the case) refused either to make any supply or return the balance of money advanced in payment of goods to be delivered. The learned Subordinate Judge, on the strength of Ext. A, came to hold that the contract was finally broken by the defendant in May, 1949, and hence the suit was not barred under Article 115 of the Limitation Act. As I have said above, the judgment of the learned Subordinate Judge has not been supported with reference to the said Article. But, in order to decide whether Article 85 or 51, on the facts and in the circumstances of this case, is the proper Article to apply; and, if the latter, whether the suit is barred [as it has been rightly conceded on behalf of the defendant that, if the former Article applies, the suit is obviously not barred), if is necessary to refer to the pleadings of the parties and to state a few more facts with reference to the oral and documentary evidence in the case.