SITARAMSA Vs. AMIRBAX

JUDGEMENT

(1.) AS the result of certain past dealings, between the parties, which were adjusted by them, a balance was struck, which showed that, on 6th June 1923, the defendants were liable to plaintiff in the sum of Rs. 514-7-6. Defendant 2, purporting to act for himself and for his father, defendant 1, signed a ruju hisab, and orally agreed to repay with interest the sum found due, at the rate of 1 per cent, per mensem, within one month of the execution of the hisab. Plaintiff filed the present suit for the recovery of Rs. 724-15-3 inclusive of interest up to the date of the suit, viz., 16th June 1926

(2.) DEFENDANT 1 denied his liability on the ground of non-execution and limitation. Defendant 2 admitted the signing of the ruju, but denied that, the ruju was an account stated, and urged that only items aggregating Rs. 66-3-9 were within time, and plaintiff was, therefore, not entitled to anything more than that amount on the strength of the ruju. It is significant to note that defendant 2 did not deny the plaintiff's allegations in para. 1 of the plaint about the oral agreement to repay within one month. Plaintiff's claim was decreed for such items as were in time at the date of the execution of the ruju with interest therein, and the rest of the claim was dismissed as barred by time. The claim was wholly dismissed as against defendant 1 for want of execution by him and only partly decreed against defendant 2. In arriving at this conclusion the Court below treated the ruju hisab as a mere acknowledgment, and not as account stated or as a mutual, open and current account. The plaintiff has come up in revision against the decision.

(3.) THE next question is whether the ruju hisab was a mere acknowledgment, or an account stated, or a mutual open and current account. If it was a mere acknowledgment and the items disallowed were advanced on dates long prior to three years of the date of acknowledgment, the dismissal of the claim must hold good. So far as the contention that the account was a mutual open, and current account - suffice it to say that the nature of the dealings is not such that the balance must shift on one side or the other - Article 85, Lim. Act, does not therefore, apply.