BANK OF MULTAN, LIMITED Vs. KAMTA PRASAD

JUDGEMENT

(1.) THE only question for disposal in this appeal is one of limitation. THE suit was one brought by the Bank of Multan, now in liquidation, against one Kamta Prasad to recover a sum of Rs. 664 alleged to be due by the defendant to the plaintiff Bank. In support of this claim the Bank exhibited what purported to be a running account which opened on the 15th of October, 1900, and the last item of which is dated the 25th of November, 1912. Both the courts below have held that the suit is time-barrel THE plaintiff Bank relied upon the provisions of Article 85, schedule I, of the Indian Limitation Act. That article relates to a suit brought for the balance due on a mutual, open and current account where there have been reciprocal demands between the parties. THE courts below have found that the account did not fall within this description, and after hearing a lengthy argument by the learned Counsel for the appellant we have come to the conclusion that the decision of the courts below is correct. THE account may be described as having been an open and current account; but it is not, in our opinion, a mutual account within the meaning of Article 85. In this connection we refer to the exposition of the law in the judgement of the Calcutta High Court in Ram Pershad v. Harbans Singh (1907) 6 C.L.J. 158, where the principal cases decided in this country are referred to. THEre are also references to English cases and cases in other courts. What the account put forward by the plaintiff discloses is that on the 15th of October, 1909, when the dealings between the plaintiff Bank and the defendant commenced, the first item consisted of a debit item of Rs. 500; in other words, the defendant opened dealings with the Bank by borrowing Rs. 500 from it. On various dates during the period of the account certain sums were paid in by the defendant. Those were all credited to the account and set off against the pre-exissing debt. Interest was calculated every half year and the balance was carried on to the following half year. An examination of the account from the beginning to the end appears clearly to indicate that it is nothing more than the record of a loan transaction between the plaintiff Bank and the defendant. THE sums which were paid in by the defendant, were nothing more or less than sums paid in part- discharge of the obligation under which the defendant lay with respect to the plaintiff Bank. To quote the language of the judgement in Hajee Syud Mahomed v. Mussamut Ashruf-oon-nissx (1879) I.L.R. 6 Calc. 759, there was never at any time during the period of this account any occasion on which the defendant could have said to the plaintiff Bank "I have an account against you." We are satisfied that Article 85, schedule I, of the Limitation Act is not the proper article to apply to this case. THE courts below were right in holding the sum claimed to have been borrowed more than three years before the date of the suit, and, therefore, barred by time It has, however, been contended here that the payments made from time to time are sufficient to save limitation. It must be established that any payment made as payment of the principal appears in the handwriting of the debtor. THE writings of the account are certainly not the writing of Kamta Prasad. It is impossible to accept the contention that after the suit was filed and Kamta Prasad put into the witness box, the deposition made and signed by him constitutes evidence of part-payment which would be available to the plaintiff Bank in this case for the purpose of saving limitation, nor again is it made to appear that any of the payments record of which is to be found in the copy of the account filed were payments made on account of interest as such. THEre is in our opinion no ground on which the plaintiff Bank can succeed in this appeal, which we accordingly dismiss with costs to the respondent.