ABDUL HAMID Vs. ACURLENDER

JUDGEMENT

(1.) The circumstances under which the present appeal has arisen are as follows:

(2.) The plaintiff is the proprietor of a firm of bone dealers in Benares, called Abdul Hamid and Sons. The defendants Garry on a business in bones which goes by the name of "The Bengal Bone Mills" in Calcutta. It appears that there hurl been dealings between the parties for some years, and in January, 1913, according to the plaintiff, his 1,654 were due to the plaintiff from the defendants firm. The defenlants had also dealings in bones with the Muslim Bone Company, Limited, of Benares. The plaintiff s father was the manager of this company and, after his death, the plaintiff was elected the manager of the company. The plaintiff s allegation is that his firm, Abdul Hamid and Sons, had nothing whatever to do with the Muslim Bone Company, Limited, yet the defendants debited the plaintiff with a sum of Rs. 1,497-7-6 alleged to have been due to the defendants from the aforesaid company and, deducting the amount from Rs. 1,654, due to the plaintiff, sent him Rs. 156-8-6 in payment of his claim on the 17th of January, 1913. The defendants had no justification for doing so and hence the plaintiff s claim for Rs. 1,497-7-6, with interest by way of damages. The present suit was instituted on the 14th of January, 1016. The only pleas in defence with which we are concerned in this appeal are (1), that the plaintiff was only an agent of the Muslim Bone Company and supplied their goods to the appellants and therefore nothing was due to him and (2), that the suit was barred by limitation. The first court came to the conclusion that the bones were really sent by the plaintiff as the manager of the Muslim Bone Company and not as a representative of a distinct firm known by the name of Abdul Hamid and Sons, and consequently the defendants very rightly debited the plaintiff with the amount due to them from the company. On the second plea it came to the conclusion that the items claimed are up to the 13th of January, 1913, that, "no payment had been made by the defendants acknowledging their liability to the plaintiff within the period of three years under Section 19 of Act No. IX of 1908, the suit is barred by the three years limitation.

(3.) It further held that the payment of Rs. 156-8-6 did not amount to an acknowledgment under Section 19 of Act No. IX of 1908 and therefore the suit was barred by time. It accordingly dismissed the suit. On appeal by the plaintiff the learned Judge of the lower appellate court came to the conclusion that the two firms Abdul Hamid and Sons and the Muslim Bene Company, Limited, were separate and "the defendants had no power to dictate to Abdul Hamid and Sons and tell them that they were the fame thing as Muslim Bone Company, Limited." He does not seem to have considered the question of limitation of any importance. In the result he decreed the plaintiff s claim, The defendants come here in second appeal. The question of agency was not seriously pressed an 1 in fact could not be so pressed having regular to the distinct finding of the lower appellate court mentioned above. The point of limitation, however, has been strenuously argued by the learned Counsel and the learned vakil, respectively, who appeared on behalf of the parties. It was contended that the letter of the 17th of January, 1913, forwarding Rs. 156-8-6 to the plaintiff, in full satisfaction of the amount due to them did not amount either to an acknowledgment of a right under Section 19 of the Limitation Act, nor did it amount to a part payment of the principal within the meaning of Section 20 of the said Act and could not therefore operate to give a fresh start to the period of limitation which had, at the latest, commenced to run on the 13th of January, 1913, when the last item was received. If this contention of the defendants is correct, it is quite clear that the present suit is barrel by limitation.