GIRDHARI LAL Vs. FIRM BISHNU CHAND

JUDGEMENT

(1.) This is a first appeal by the defendants against a decree of the learned Subordinate Judge of Shahjahanpur decreeing the plaintiff's claim for a sum of Rs. 18,467-9-0 together with costs and interest. The only question before us is one of limitation. The plaint set forth that the, plaintiff's firm was a firm of money-lenders and that it was agreed that the defendants should borrow money from the plaintiff's firm, and interest would be payable on the loans at the rate of ten annas per cent per mensem, and that entries should be made of the loans in the account books of the plaintiffs. Para. 4 of the plaint set forth that on the date corresponding to 26 September 1925 the account as between the parties was adjusted and a sum of Rupees 16,043-8-9 was found due to the plaintiff by the defendants. The defendants admitted and acknowledged the said sum of money to be due by them. The plaints then set out an acknowledgment in the books of the plaintiffs, but we note that it is admitted by learned Counsel on both sides that the translation at p. 2 of the paper book is inaccurate as it contains the words "by us" which are not in the vernacular in the original either of the plaint or of the account books. Para. 6 sets out that, according to this agreement, a sum of Rs. 17,347-1-0 was found due to the defendants on the date corresponding to 15 October 1926, and the defendants did not pay. The plaint therefore claimed a certain sum of money as due on the acknowledgment of 26 September 1925. The suit was brought on 17 August 1927, i.e., within three years of the acknowledgment. The written statement of the defendants pleaded that the defendants now and then took money from the plaintiff's firm and the defendants admitted that they signed the acknowledgement but denied that any account was made. The additional plea set forth that the defendants never advanced any sum of money to the plaintiff's firm as loan and that the defendants had neither taken any debt from the plaintiffs nor paid any sum of money to the plaintiffs within three years of the date of institution of the suit and that the suit was time barred. The Court of first instance held that the suit was within the period of limitation. On first appeal learned Counsel for the plaintiffs supported the decree of the Court of first instance on the ground that the acknowledgment would amount to an account stated under Article 64, Lim. Act, and argued that in the alternative it would come under Section 25, Contract Act. The acknowledgment in question is contained in the books of the plaintiff which show the loans which have-been taken by the defendants and the payments made by them. A correct translation is printed on p. 15 of the paper book and is as follows:

(2.) We may note that the account book shows that the vernacular words baqi lelina rahe Miti Kunwar Sudi Naumi Sambat 1982 tain hisab karke rupaiya 16,043- 8-9" are in the account book of the plaintiff's firm in the writing of a person who kept the account book. Below this entry there occur the following words written by a defendant and signed by the defendants and written across a one anna stamp "baqi dena rehe Miti Kunwar Sudi Naumi Sambat 1982 tain hisab karke rupaiya 16,043-8-9." The signatures of the two defendants follow.

(3.) Now the questions which have been argued in regard to Art. 64, Lim. Act, are two: firstly, was there an account stated within the meaning of that article and secondly, whether there can be an account stated after the period-of limitation has expired in regard to the transactions between the parties? The learned Counsel for the plaintiffs respondents did not show us any satisfactory authority in support of his argument that this acknowledgment would amount to an account stated. He referred to the statement of the plaintiff in evidence on pp. 7 and 8 of the paper- book which is to the effect that the plaintiff had sent a note of their accounts to the defendants and that the defendants had understood the account and had then written the acknowledgment. The defendants did not give evidence to contradict that, so we accept that statement as correct. But the point is whether the words "account stated" can be applied to a money-lending transaction -like the present where one party, the plaintiff, lent money to the defendants and the defendants merely made repayments of money which had been lent. It has been shown by the evidence of the plaintiff that the defendants never sent to the firm of the plaintiff a sum which made the defendants creditors of the firm of the plaintiff. The defendants have all along been debtors of the firm of the plaintiff. The transactions therefore are entirely unilateral, and there is no statement of a mutual account. In Art. 64, Schedule 1, Lim. Act the statement is accounts stated between them." The article, therefore contemplates an account stated by one party and an account stated by the other party, that is, two accounts and not merely an account stated by a single party. The article therefore contemplates mutual accounts. We would refer for the meaning of this expression to the case of Laycock V/s. Pickles [1864] 4 B. & S. 497 at p, 506 where it is stated as follows: There is a real account stated...when several items of claim are brought into account on either side, and being set against one another, a balance is struck and the consideration for the payment of the balance is the discharge of the items on each side.