NARAYAN LAXMAN ADHIKARI Vs. CHAPSI DOSA

JUDGEMENT

(1.) The plaintiffs sued to recover Rs. 5,407-11-7 as principal and Rs. 248-12-0 as interest from the first and second defendants. The first and second defendant and one Ramchandra, brother of the first defendant, wore a joint Hindu family carrying on business in groceries, and in the course of that business had dealings with the plaintiffs. There were various Khatas, five in all, representing the transactions between the parties. Before 1913 Ramchandra separated, but the business was carried on by the first and second defendants. In August 1913 the amounts to the debit and credit of the various five Khatas were totalled, cerdits on one side and debits on the other, and the second defendant signed both the debits and credits as correct. Thereafter the account continued, and this suit is brought within three years of the signatures placed by the second defendant in the plaintiffs books on the 8 August 1913.

(2.) The first defendant is now dead and the second defendant disputes the plaintiffs claim which was allowed by the Court below. The decree directs the second defendant personally and as representative of the deceased defendant No. 1, to pay to the plaintiffs Rs. 5,273-15-0 and proportionate costs With further interest at six per cent. The first question 1931 taken in appeal is a question of limitation It was argued that three of the Khatas, which were amalgamated in 1913, had not been operated upon since 1908, and, therefore, any acknowledgment of what was due by the defendants to the Macleod plaintiff's on these Khatas was barred by limitation. That is an ingenious but a dishonest defence, because it is clear that the business transactions between the parties continued after 1908, and were recorded in Khatas 4 and 5, and the total effect was that what was due to the plaintiffs was the balance on the five accounts, and it was not open to the defendants to say that the amounts appearing to be due by them on the first three Khatas were barred, while the amounts which were due to them from the plaintiffs on the later accounts were not barred. Obviously, however, many accounts might be opened recording the transactions between A and B; they must be treated as one account for the purposes of limitation.

(3.) Then it is not necessary to deal with the question, which is (still open, whether an acknowledgment given after the period of limitation has expired is sufficient to form the basis for a new action on the ground that it implies a promise to pay. In Chunilal V/s. Laxman (1921) 23 Bom, L.R. 606. we held that a Rujukhata would form the basis of a fresh action. But in that case the Rujukhata was within the period of limitation and it may be said that we would be going further if we hold that even if it is signed after the period of limitation, it would still afford the basis for a fresh action. But unfortunately the learned Judge has fallen into an error in refusing to take the account according to Section 13 of the Dekkhan Agriculturists Relief Act. We feel considerable sympathy with him, because it has always appeared to us inequitable that a trader should be entitled to the advantages of the Act because he happens in conjunction with his trading transactions to carry on agricultural business which entitles him accordingly, if the income from agriculture is more than the income from his trading transactions, to have the accounts of the trading transactions taken under the Dekkhan Agriculturists Belief Act That is the law, and as the defendants are agriculturists, these accounts, though recording trading transactions, should be taken according to the Act. The case must, therefore, go back to the Subordinate Judge for an account to be taken of all the five Khatas under Section 13 of the Dekkhau Agriculturists Relief Act, and the result must be certified to us within three months.