FATECHAND GANESHRAM AGARWAL Vs. WASUDEO SHRAWAN DALAL

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff against the dismissal of his suit on a preliminary point of limitation by the trial Court and also by the lower appellate Court and that is the only question which calls for decision in this appeal.

(2.) THE suit from which this appeal arises was instituted on 24th August 1938. It was for the recovery of Rs. 4052-15-3 due from the defendants for the price of goods supplied and the amounts advanced by the plaintiff to them, from 24-6-1933 to 22-1-1934. A suit of this nature is for purposes of limitation governed by Articles 52 and 57, Limitation Act, which prescribe three years as the period of limitation. The plaintiff's suit was thus instituted beyond the prescribed period of limitation. Where a suit is instituted after the expiration of the prescribed period of limitation Order 7, Rule 6, Civil P.C., requires that the plaint shall show the ground or grounds upon which exemption from such law is claimed. It is therefore necessary to examine the pleadings on record in this light.

(3.) THE defendants admitted execution of the agreement dated 26-8-1935 but denied that it was handed over to the arbitrators, or that the arbitrators assumed jurisdiction. They denied that the plaintiff was entitled to exclusion of time from 26-8-1935 to 11-7-1938 and further averred that the plaintiff did not prosecute the proceedings before the arbitrators in good faith and with-due diligence as is required by Section 14, Limitation Act. The defendants denied that the agreement dated 26-8-1935 contained an acknowledgment of liability by the defendants within the meaning, of Section 19, Limitation Act so as to permit fresh period of limitation to be computed from that date. The defendants denied the agreement dated 1-9-1936 and they further denied that the alleged agreement gave a fresh cause of action and a fresh start of limitation. As observed by their Lordships of that Privy Council in Kanhaya Lal v. National Bank of India Ltd (13) 40 Cal. 598, where the defendants ask the Court to decide an issue on the very allegations of the plaintiff, they must be taken to admit for the sake of argument that the allegations of the plaintiff in his plaint are true reserving to themselves the right to show that these allegations are wholly or partially false in the further stages of the action, should the preliminary point be overruled. For the purpose of deciding the point involved in this appeal the statement of the defendants has thus to be ignored.