HAR SAHAY MULL Vs. GOKUL CHAND

JUDGEMENT

(1.) This is a second appeal by the defendants against a decision of the learned Additional Subordinate Judge of Hazaribagh, by which the learned Subordinate Judge has reversed the decision of the learned Munsif of Hazaribagh in a money suit which the plaintiff-respondent had brought against the present appellants. The suit was for recovery of Rs. 450 and odd annas, being the price of goods supplied by the plaintiff-respondent to the defendants-appellants from time to time till 18- 6-1939. The case of the respondent was that he had a shop at Sariya and the appellants had a shop at Hazaribagh. Prom 1992 Sambat till Ashar Sudi 1, 1996 Sambat, the appellants had purchased goods, such as salt, flour, etc., worth Rs. 3091-15-3, and up till the 14 sawan, 1996 sambat, which would correspond to 14-8-1939, the appellants had paid Rs. 2641 50, leaving a balance of Rs. 450-10- 3 for which the respondent brought his suit. The defence of the appellants, so far as it is relevant to the question raised in the present appeal, was that there were no transactions prior to 1995-96 Sambat. The appellants said that the transactions between the parties commenced on Magh Sudi 5, 1995 Sambat, and there were no transactions prior to that date. The transactions in 1995-96 Sambat amounted to Rs. 992 and odd annas, out of which the appellants had paid Rs. 990 and odd annas, leaving a balance of about Rs. 2 only. The appellants further alleged that the suit having been filed on 17-6-1942, the balance of Rs. 446-1-9, which the respondent showed in his account books as the arrears due on account of the transactions from 1992 to the 14 Kartik, 1995 Sambat, was barred by time.

(2.) On the aforesaid pleadings two main questions arose for determination: the first question was if there were any transactions prior to Magh Sudi, 1995 Sambat; and the second question was if any part of the claim of the respondent was barred by time. The learned Munsif found that the respondent had failed to prove any transactions prior to 1995-96 Sambat. He accepted the account of the respondent for the transactions of 1995-96 which showed that a sum of Rs. 4 and odd annas only was due to the respondent. In view of that finding of the learned Munsif regarding the transactions prior to 1995-96, the question of limitation did not arise. The learned Munsif has, however, given his finding on the question of limitation as well, as was only proper for him to. He has found that if there were any transactions between the parties prior to the 15 Kartik, 1995 Sambat, leaving a balance of Rs. 446-1-9 in favour of the respondent, the claim of the respondent with regard to that amount was barred by time, the suit having been filed more than three years after the 15 of Kartik, 1995 sambat. On these two findings the learned Munsif gave a decree to the respondent for the sum of Rs. 4 and odd annas only besides interest. The learned Subordinate Judge has found that the respondent has proved the transactions alleged by him in the plaint commencing from 1992 and ending with 1996 sambat. On the question of limitation he has expressed his finding as follows: I have shown above that the payments were not made item by item and hence it must be held that the payments made by the defendants in 1995-96 were credited by the plaintiff towards previous dues. This being so, no part of the claim is barred by limitation. On this finding the learned Subordinate Judge has allowed the claim of the respondent in full.

(3.) In the second appeal before me, learned Counsel for the appellants has rightly conceded that the finding about the prior transactions cannot be challenged by him. It is a finding of fact and is binding in second appeal. The only question which learned Counsel for the appellants has raised before me is the question of limitation. It has been contended by him that Art. 85 which gives the period of limitation for the balance due on a mutual, open and current account, does not apply in the present case. If this Art. had applied, the period of three years would be counted from the last item entered in the account which was the last payment on 14-8-1989. Learned Counsel for the appellants had no difficulty in showing that the respondent's account, which the Court of appeal below has accepted as correct does not constitute a mutual account, as contemplated by Art. 85 of Schedule I, Limitation Act. It has been laid down in several decisions and is now well settled that to constitute a mutual account there must be transactions on each side creating independent obligations on the other, and not merely transactions which create obligations on the one side, those on the other being merely complete or partial discharges of such obligations. The latest decision of this Court on the point is Uma Shanker Prasad V/s. Bank of Bihar Ltd. A.I.R. 1942 Pat. 201. The accounts in the present case show transactions which give rise to a liability on one side only, which liability is discharged partially or completely by sundry payments made from time to time. It is, therefore, clear to me that the account in question is not a mutual account, and Art. 85 does not apply.