Madras High Court
R.Rajeswari vs M/S.Kanthasamy Traders on 6 February, 2017
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.02.2017
Reserved on: 30.01.2017
Pronounced on: 06.02.2017
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Appeal Suit (MD) No.71 of 2007
and
M.P.(MD) No.3 of 2011
R.Rajeswari ... Defendant / Appellant
-Vs-.
M/s.Kanthasamy Traders, Cotton Merchant,
No.17, Krishnasamy Naidu Pettai,
Dindigul, rep. by its Managing Partner
K.Shanmugam, S/o.N.M.Kanthasamy Chettiar.
... Plaintiff / Respondent
Prayer: Appeal Suit filed under Section 96 of the Code of Civil Procedure,
against the judgment and decree dated 20.06.2006 passed in O.S.No.305 of 2004
on the file of the Fast Track Court (Additional District and Sessions Judge),
Dindigul.
!For Appellant : Mr.C.Dhanaseelan
^For Respondent : Mr.S.Harihara Ramachandran
:JUDGMENT
The defendant in the suit in O.S.No.305 of 2004 is the appellant in the above appeal. The respondent herein, as plaintiff, filed the suit for recovery of a sum of Rs.5,42,276/- with interest at the rate of 12% against the appellant.
2.The case of the respondent in the plaint are as follows:
2.1.The plaintiff is carrying on business in selling cotton in the name and style of ?Kanthasamy Traders?. The defendant is also carrying on business and Tmt.R.Rajeswari is the proprietrix of the defendant. The defendant was purchasing cotton from the plaintiff and the plaintiff and defendant were transacting business between 03.10.1997 and 17.04.2003, on credit basis. The details of the account are maintained in the account books maintained by the plaintiff in the course of business. As per the accounts of plaintiff, the defendant has to pay a sum of Rs.7,52,288/-. The defendant agreed to pay the balance and the husband of proprietrix of the defendant confirmed the same by an undertaking letter dated 22.07.1998. Thereafter, the defendant was making payments as per the accounts. As on 17.04.2003, as per the accounts of the plaintiff, the defendant is liable to pay a sum of Rs.4,52,288/-. As agreed by the defendant, the defendant is also liable to pay interest at the rate of 12%. However, the amount, which is due from the defendant, has not been paid thereafter. As per the trade practice, the defendant is liable to pay interest at the rate of 12% for the sum outstanding beyond 30 days. Despite repeated demands in person and through the plaintiff's men and lastly by demanding payment on 01.12.2004, the defendant though promised to pay the amount, failed to pay any further amount and delayed payment purposely. Hence, the defendant is liable to pay a sum of Rs.4,52,288/- with interest at 12% from 17.04.2003.
2.2.It was contended by the plaintiff that as per the account book of the plaintiff, the defendant has paid a sum of Rs.16,000/- on 17.04.2003 and hence, the suit is filed within three years from this date.
In the paragraph disclosing cause of action, the plaintiff has stated that the cause of action arose between 03.10.1997 and 17.04.2003 on which dates the defendant had dealings with the plaintiff on credit basis and the failure to make payment despite repeated demands and lastly when the plaintiff demanded payment on 01.12.2004.
3.The suit was contested by the defendant by filing a written statement. In the written statement, the defendant admitted the transaction between the plaintiff and defendant. It is the specific case of the defendant that the last date on which cotton was sold to the defendant was on 07.10.1997. The defendant also admitted that the husband of Mrs.Rajeswari, the proprietrix of the defendant, gave a letter to the plaintiff on 22.07.1998. It was further contended that after 22.07.1998, there was no transaction between the plaintiff and defendant and the suit claim is therefore barred by limitation by the expiry of three years from the date of last payment which was made on 07.06.1998.
4.The defendant further contended that in 2003, the defendant paid a sum of Rs.3,00,000/- between 11.03.2003 and 27.03.2003 and the plaintiff has failed to disclose the payment of Rs.3,00,000/-. It was contended by the defendant that thereafter, the defendant paid a sum of Rs.4,52,288/- between 01.04.2003 and 27.04.2003. Hence, the defendant has paid the entire amount due to the plaintiff. It is also the case of the defendant that the plaintiff failed to give receipts for the payments made by the defendant to the tune of Rs.4,52,288/- and that the accounts produced by the plaintiff is therefore false and fraudulent. The defendant further came forward with a collateral transaction between the defendant and the son of the Managing Partner of the plaintiff firm and submitted that a sum of Rs.2,79,526/- became due from the son of the Managing Partner of the plaintiff firm to the defendant. It was stated by the defendant that it was only to give pressure to the defendant, the present suit has been filed with ulterior motive.
5.The plaintiff mainly relied upon the letter that was given by the defendant's husband dated 22.07.1998 and the copy of the relevant pages of the account book of the plaintiff Ex.A3. The defendant has produced the receipts that are issued by the plaintiff under Ex.B1 to B17. The defendant also produced Ex.B18 which is the account book of the defendant wherein a sum of Rs.3,00,000/- has been shown as paid between 11.03.2003 and 27.03.2003. Ex.B19 is the account book of the defendant to show that a sum of Rs.4,52,288/- has been paid by the defendant between 01.04.2003 and 27.03.2003. The plaintiff has examined one K.Shanmugam, who is the Managing Partner of the plaintiff firm. The defendant has examined D.W.1 who is the husband of the Proprietrix of the defendant concern.
6.The trial Court though framed an issue relating to the limitation, answered the same in favour of the plaintiff by holding that the suit has been filed within a period of three years from 17.04.2003 which is the last payment that was credited in the account books produced by the plaintiff under Ex.A3. It is pertinent to mention that the alleged payments by the defendant in March, 2003 is also referred to by the trial Court while deciding the question of limitation in favour of the plaintiff.
7.The trial Court thereafter relied upon Ex.A2 letter executed by the husband of the Proprietrix of the defendant concern dated 22.07.1998. In this letter dated 22.07.1998, the defendant agreed to pay the balance amount of Rs.7,52,288/- before 31.08.1998. In the same letter, he also agreed to pay a sum of Rs.60,000/- towards interest in case, he failed to pay the amount on or before 31.08.1998. He further undertakook to register a mortgage in respect of one of his properties as security for the amount payable. The document Ex.A3 is the account statement reflecting the accounts of the plaintiff. It is to be noted that Ex.A3 is only an extract of the entries in the ledger book maintained by the plaintiff concern. It consists of two pages. Though this is only the extract, this document has been verified with the original ledger and endorsed to be correct during the course of trial. The document Ex.A3 shows that the defendant has purchased cotton under three invoices on 03.10.1997 and another invoice dated 07.10.1997. Thereafter, there was no entries by way of sale of cotton. By all these four invoices, it appears that the defendant has purchased cotton for a value of Rs.12,02,288/-. The defendant has made payments on various dates by way of cheques and cash in all a sum of Rs.3,50,000/-towards account till 08.03.1998. Thereafter, between 28.05.1998 and 07.06.1998 a sum of Rs.1,00,000/- has been credited to the account of plaintiff. Subsequently, between 01.04.2003 and 17.04.2003 in all a further sum of Rs.3,00,000/- has been credited from the defendant and the balance of Rs.4,52,288/- is shown.
8.The trial Court relying upon Exs.A2 and A3 found that a sum of Rs.4,52,288/- is due to the plaintiff from the defendant as on 17.04.2003 and that the defendant has failed to prove any further payment than the one credited and shown in the account books of plaintiff under Ex.A3. The documents filed by the defendant under Exs.B18 and B19, being the extract of the accounts of defendant, were held to be not proved and the trial Court was of the opinion that the document like Ex.B18 and B19 can be created any time as these documents are only self-serving. Thus, the trial Court decreed the suit as prayed for. Aggrieved by the judgment and decree of the trial Court, the defendant has preferred the above appeal.
9.The learned counsel appearing for the appellant mainly contended that the suit is barred by limitation as there was no transaction after 07.06.1998. The suit which has been filed only on 15.12.2004 cannot be entertained. It is the contention of the appellant that the account in relation to the suit transaction is neither ?mutual, open and current? account to attract Article 1 of Limitation Act nor an account settled or stated between parties to attract Article 26 of the Limitation Act. It is the case of the appellant that the transaction relating to sale of cotton was over long back and after executing the letter under Ex.A2 dated 22.07.1998, there was no transaction between the plaintiff and defendant for more than three years and the suit which is filed beyond three years from the date of letter or from the date of last payment namely 07.06.1998 is barred by limitation. The learned counsel for the appellant further relied upon few judgments for the proposition that the suit filed beyond the period of limitation cannot be entertained and that the Courts have no discretion to condone the delay. He also referred to the judgment of this Court in the case of Kulandaisami and another v. Lourdusami reported in 1991 (I) CTC 329 wherein it has been held that an acknowledgement on a latter date will not resuscitate a barred claim. Paragraphs 19 and 21 of the said judgment are relevant and hence, they are extracted as below:
?19. There is no dispute that Ex.A3 endorsement had been made after the expiry of three years period of limitation reckoned from Ex.A2 endorsement dated 10.5.1978. The very opening words of Section 18 of the Limitation Act indicate that an acknowledgment to be valid must relate to the time when the right was still enforceable. The acknowledgment must be made before the expiration of the period. An acknowledgment if made after the expiry of period of limitation is insufficient to keep the debt alive. If the claim is barred, the fact that there was an acknowledgment on a later date will not resuscitate a barred claim in terms of Section 18 an acknowledgment can be only of a subsisting liability.
21. The expression "prescribed period" which appears in Sections 18 and 19 of the Indian Limitation Act, 1963 has been specifically defined in Section 2(j) of the Act. A conjoint reading of the definition read with Section 18 leads to an irresistible conclusion that the acknowledgment or payment should have been made before the claim had become time barred.?
10.In the said judgment, several judgments of this Court as well as the Hon'ble Supreme Court were relied upon.
11.As against the legal submission of the learned counsel for the appellant, the learned counsel for the respondent has practically conceded the position. This Court is convinced that an acknowledgement in terms of Section 18 of the Limitation Act must have been made before the expiry of the limitation period prescribed in the Limitation Act, 1963, as this position has been well settled by a catena of decisions. The legal position also can be deduced from the plain reading of Section 18 and 19 read with Section 2(j) and other provisions of the Limitation Act.
12.The learned counsel for the appellant further submitted that for the purpose of recovery of money, the limitation starts from the date when the money is stated to be payable and that the present suit which has been filed three years beyond the date in which the debt was acknowledged by the defendant under Ex.A2 is barred by limitation.
13.The learned counsel for the respondent relied upon several judgments. The learned counsel for the respondent relied upon the judgment of the Privy Council in the case of Siqueira v. Noronha reported in AIR 1934 Privy Council 144 and in the case of Bishun Chand v. Girdhari Lal and another reported in AIR 1934 Privy Council 147. In the first judgment, the question was regarding the applicability of Article 64 of the Limitation Act, 1908 and Section 25(3) of Indian Contract Act has been considered. Article 64 of the Limitation Act is regarding suit for money payable to the plaintiff for money found to be due from the defendant to the plaintiff on accounts stated between them. The limitation starts from the date when the accounts are stated in writing signed by the defendant or his agent duly authorised in this behalf. Article 64 of old Act is corresponding to Article 26 of Limitation Act, 1963. In the present case, Article 26 has no application as the accounts are not settled by getting the signature of the defendant or her agent duly authorised in this behalf. In the case in AIR 1934 Privy Council 144, the facts reveal that in the statement of accounts maintained by the defendant in the normal course of business a sum of 42,458.84 Shillings has been found to be the amount payable to the plaintiff therein as on 31.12.1927. The question arose before the Privy Council on the applicability of Section 25(3) of the Indian Contract Act to the transaction between the plaintiff / employer and the defendant / employee. Since the signature of the authorised representative of the defendant company was considered to be a promise made in writing and signed by the defendant through its agent to pay a debt, the Privy Council found the maintainability of the suit in favour of the plaintiff therein and upheld the view expressed by the Court of Appeal varying a judgment given by the Supreme Court of Kenya. The point which was argued before the Privy Council was something different and the judgment has no application to the present case. Though in the context, the distinction was made by the Privy Council between the two forms of accounts stated for the purpose of Article 64 of the Limitation Act, 1908. It has been observed that an account stated may take the form of a mere acknowledgement of a debt whereby the existence of a debt may be inferred and that the other form of accounts stated is a usual form as between the merchants in business in which the account stated is an account which contains entries on both sides and in which the parties who have stated the account between them have agreed that the items on one side should be set against the items upon the other side and the balance only should be paid. It was held that in the second form of account stated, there is a promise for good consideration to pay the balance arising from the fact that the items have been so set off and paid in the way described. In the case before the Privy Council, the employee filed a suit for recovery of the amount due from his employer on the basis of the account stated and settled by acknowledging the amount due to the defendant by an authorised agent of the company. Factually, in that case, the plaintiff was in employment between 1913 and 1928. Though the account books maintained by the defendant/employer, the salary and commission payable to the plaintiff was not there for so many years and the account was settled once by the authorised agent of the defendant company by signing the accounts and acknowledging the liability of the defendant. Hence, the suit based on the accounts was held to be within limitation even though the salary was credited for the first time at the time of settlement of accounts. Even in the judgment of Privy Council in the case of Bishun Chand v. Girdhari Lal and another reported in AIR 1934 Privy Council 147, the judgment of the Privy Council reported in AIR 1934 Privy Council 144 has been relied upon. It is to be noted that even in this case, the respondent before the Privy Council who was the defendant in the suit had acknowledged the liability by stating that the balance due to be paid after adjusting the account upto the particular date was Rs.16,043.86. It was only by applying Article 64 of Limitation Act, 1908, the Privy Council has held therein that the suit filed within three years from the date of account stated with the signature of the defendant is within the period of limitation.
14.In view of the fact that the suit has been held not barred by limitation by applying Article 64 of the Limitation Act, 1908, the other issue where the appellants were entitled to recovery of money under Section 25 (3) of the Contract Act was not decided. This judgment also is not helpful to the respondent as the accounts in the present case was never signed by the defendant. The learned counsel for the respondent further relied upon the judgment of the Hon'ble Supreme Court in the case of Hiralal and others v. Badkulal and others reported in AIR 1953 SC 225 wherein the Hon'ble Supreme Court in paragraph 11 has held as follows:
?11.Mr. Bindra next urged that the plaintiff's suit should have been dismissed because it could not be maintained merely on the basis of an acknowledgment of liability, that such an acknowledgment could only save limitation but could not furnish a cause of action on which a suit could be maintained. The Judicial Commissioner took the view that an unqualified acknowledgment like the one in the suit, and the statement of the account under which the entry had been made, were sufficient to furnish a cause of action to the plaintiffs for maintaining the present suit. We are satisfied that no exception can be taken to this conclusion. It was held by the Privy Council in Maniram v. Seth Rupchand(1), that an unconditional acknowledgment implies a promise to 'pay because that is the natural inference if nothing is said to the contrary. It is what every honest man would mean to do. In Fateh Chand v. Ganga Singh(2) the same view was taken. It was held that a suit on the basis of a balance was competent. In Kahanchand Dularam v. Dayaram Amritlal(3) the same view was expressed and it Was observed that the three expressions "balance due ", " account adjusted " and "balance struck" must mean that the parties had been through the account. The defendant there accepted the statement of account contained in the plaintiff's account book, and made it his own by signing it and it thus amounted to an " accounts stated between them " in the language of article 64 of the Limitation Act. The same happened in the present case. The acknowledgment which forms the basis of the suit was made in the ledger of the plaintiffs in which earlier mutual accounts had been entered and truly speaking, the suit was not based merely on this acknowledgment but was based on the mutual dealings and the accounts stated between them and was thus clearly maintainable.?
15.In the case before the Hon'ble Supreme Court, the defendant who had mutual dealings with the plaintiff signed the entry in the plaintiff's ledger on which earlier accounts had been settled making the following entry: ?Rs.34,000/- balance due to be received upto Bhadon sudi 11 Sam. 2006 made by cheque and understanding of accounts with the defendant's books'. The acknowledgement was signed by the defendant with the following endorsement ?after adjusting the amount of Rs.34,000/- found correct and payable?. The plaintiff therein brought a suit on the basis of the entry for recovery of the amount. Since it was held that the unqualified acknowledgement contained in the entry and the statement of accounts under which the entry was made were sufficient to furnish a cause of action to the plaintiff for maintaining a suit. It was further held that the suit was not based merely on the acknowledgement but was based on the mutual dealings and the accounts stated between them. This judgment is, therefore, not applicable to the facts.
16.The learned counsel for the appellant then relied upon a judgment of the Calcutta High Court in the case of The Tea Financing Syndicate Ltd., v. Chandra Kamal Bez Barua reported in AIR 1931 Calcutta 359 wherein the scope of Article 85 of the Limitation Act, 1908 corresponding to Article 1 of Limitation Act, 1963 was dealt with. In the said judgment, the scope of Article 85 and what is ?mutual, open and current? account is explained. In the present case, the accounts as revealed from Ex.A3 cannot be termed as ?mutual, open and current? account for the purpose of invoking Article 1 of the Limitation Act. In the present case, as seen from Ex.A3, the entries on the left hand side was on account of the sale of cotton to the defendant, on the basis of four invoices. The sale of cotton by the plaintiff to the defendant is only upto 07.10.1997. Thereafter, several payments have been acknowledged upto 07.06.1998. Thereafter, there was no transaction between the plaintiff and defendant from 07.06.1998 till 31.03.2003. It was thereafter between 01.04.2003 and 17.04.2003 several payments by defendant have been credited in the accounts. The accounts as produced under Ex.A3 is not a ?mutual, open and current? account as stated in Article 1 of the Limitation Act, 1963.
17.The learned counsel for the respondent relied upon a judgment of the Calcutta High Court in the case of Durga Prasad Sarawgi v. Fateh Chand Kanoi and another reported in AIR 1968 Calcutta 292. In this judgment, the term ?accounts stated? as found in Article 64 of the 1908 Act has been explained. It has been held by the Calcutta High Court therein that once a document is held to be an account stated, it need not further contain words promising to pay the debt within the meaning of Section 25(3) of the Contract Act. The learned counsel for the respondent further relied upon a judgment in the case of Kedar Nath Parsottamdas and Co. Private Ltd., v. Amin Chand Payarelal reported in AIR 1965 Calcutta 246 wherein it has been held that where the transaction was not one composite piece of work, it would be wrong on authority as well as on principle to hold the account as mutual, open and current account by applying abstract principles of law. Paragraph 13 of this judgment may be usefully extracted for our case:-
?13. In determining the question of limitation the transaction is to be decided on the second principle laid down by Chakravarti, C. J. It is true that in mutual open and current account there need not be a shifting balance and the absence of a shifting balance is not conclusive one way or the other. Further, reciprocal demands do not mean that actual demands for payments must have been made but only that there must be reciprocal claims arising out of the respective credits on the two sides. The deciding test is whether the dealings are such as to enable each party to say to the other that he has an account against him which means not that he has a credit balance but that he has a number of credits in the course of a running series of transactions which give him a right to an account. Payments must not be repayments of debt but payments are to be in the course of independent transactions intended to create credits against the other party. Counsel for the plaintiff extracted this principle and contended that oven if the plaintiff's case as to interest were not accepted the plaintiff's case as to mutual open and current account could be accepted stripped of the question of interest. I am unable to accede to the plaintiff's contention in the present case for the principal reason that where it is alleged that there was an agreement as to mutual open and current account and my conclusion in the present case is that there was no such agreement, it would be wrong on authority as well as principle to hold mutual open and current account by applying abstract principles of law. I am of opinion that there was no agreement as to mutual open and current account.?
18.It is well settled that if the obligation is one side only and the transaction on the debit side evidence discharge of the obligation the account is not mutual. For the account to be mutual, each party should be in a position to say that he has an account with the other and if he so wants, he can enforce the obligation by a suit. Only when there are independent obligation on both sides, the balance can be stated to be keeps on shifting.
Only if there is a possibility by shifting of balance from one side to the other, the account can be stated to be mutual, open and current account. Even the judgment cited by the learned counsel for the appellant in the case of Lakshman Prasad v. Ghasi Ram and others reported in AIR 1966 Allahabad 503 is relevant for the above proposition. If the law is well settled that the words ?mutual, open and current? account found in Article 1 of Limitation Act would mean that the transactions must be both on the debit and credit side creating independent obligation. There must be an existence of reciprocity of demands. The essence of mutual, open and current account is that there must be independent dealings between the parties which can be duly set off against each other. In the present case, the transaction between the plaintiff and defendant as evidenced by the account under Ex.A3 would clearly show that the plaintiff has purchased the commodity once from the plaintiff and the defendant has made some payments till 1998. There is no possibility of both sides becoming debt to each other and hence, the account cannot be termed as a mutual account with reciprocal demands as contemplated under Article 1 of the Limitation Act. In this case, there are only entries of the payments made by the defendant upto the last date shown in the account.
19.For the purpose of attracting Article 1, the statement of accounts need not be in writing or signed. But for invoking Article 1, the account must be mutual, open and current account where there have been reciprocal demands between the parties. An account consisting of entries of payments made by one party in reduction of his debt, due on account of purchase of cotton cannot be brought under Article 1.
20.The Constitution Bench of the Hon'ble Supreme Court in the case of Hindustan Forest Company v. Lal Chand reported in AIR 1959 SC 1349 has dealt with the requirement of a mutual, open and current account for the purpose of invoking Article 85 of Limitation Act (1908) (Corresponding to Article 1 of Limitation Act, 1963). The facts of the case before the Hon'ble Supreme Court are extracted in paragraphs 3 and 4 of the judgment and the answer is given in paragraph 10. Hence, paragraphs 3, 4 and 10 are extracted as under:
?3.Various quantities of goods were thereafter delivered by the sellers to the buyer and though such deliveries had not been made strictly at the times specified in the contract, they had been accepted by the buyer. The buyer in its turn made various payments towards the price of the goods delivered but not month by month and had not further paid it in full. The last delivery of goods was made on June 23, 1947, and the suit was brought on October 10, 1950, for the balance of the price due.
4.The learned Judge of the High Court who heard the suit held that art. 115 had no application and dismissed the suit as barred by limitation. The sellers went up in appeal which was heard by two other learned Judges of the High Court. The learned Judges of the appellate bench of the High Court held that art. 115 of the Jammu & Kashmir Limitation Act applied and the suit was not barred. They thereupon allowed the appeal and passed a decree in favour of the sellers. The buyer has now come up in appeal to this Court.
10.The learned Judges however held that the payment of Rs.13,000 by the buyer in advance before delivery had started, made the sellers the debtor of the buyer and had created an obligation on the sellers in favour of the buyer.
This apparently was the reason which led them to the view that there were reciprocal demands and that the transactions had created independent obligations on each of the parties. This view is unfounded. The sum of Rs. 13,000 had been paid as and by way of advance payment of price of goods to be delivered. It was paid in discharge of obligations to arise under the contract, It was paid under the terms of the contract which was to buy goods and pay for them. It did not itself create any obligation on the sellers in favour of the buyer; it was not intended to be and did not amount to an independent transaction detached from the rest of the contract. The sellers were under an obligation to deliver the goods but that obligation arose from the contract and not from the payment of the advance alone. If the sellers had failed to deliver goods, they would have been liable to refund the monies advanced on account of the price and might also have been liable in damages, but such liability would then have arisen from the contract and not from the fact of the advances having been made. Apart from such failure, the buyer could not recover the monies paid in advance. No question has, however, been raised as to any default on the part of the sellers to deliver goods. This case therefore involved no reciprocity of demands. Article 115 of the Jammu and Kashmir Limitation Act cannot be applied to the suit?
(Article 115 of The Jammu and Kashmir Limitation Act prescribe a period of 6 years and it is corresponding to Article 85 of Limitation Act, 1908.)
21.The judgment of the Hon'ble Supreme Court in 1959 SC 1349 has been followed by a Division Bench of this Court in the case of G.Gopal Chettiar v. V.V.Shanmuga Nadar and Bros. reported in AIR 1967 Madras 360 and held that to find whether the account is open, mutual and current, the account must fulfil the requirements of reciprocal demands involving transactions on each side, creating independent obligations on the other, and not merely transactions which create obligations on one side, those on the other being merely complete or partial discharge of such obligations and that reciprocity of dealings is essential.
22.The same position was reiterated by High Court of Punjab in the case of Simplex Manufacturing Company (Private) Ltd., v. The Hindustan Tools Mft. Co. Ltd., reported in AIR 1960 Punjab 164 and it was also held that it should not be a one way ? traffic, i.e., all claims being on one side and all obligations on the other, as would be the case where one party is a lender and the other, a borrower.
23.In the case in Anumukonda Anjaneyulu v. Agricultural Traders reported in AIR 1973 AP 219, it has been held that where plaintiff's account showed only supplies of goods and payment, the account can not be stated as one mutual, open and current account. In this case, the defendant made payments towards costs of goods supplied or to be supplied, but never as separate transactions.
24.In the present case, the extract of the account book under Ex.A3 shows that there are only 4 entries indicating the value of cotton purchased by defendant under four invoices on two dates. On the other side, the amount paid by defendant on various dates have been entered. The transaction between petitioner and defendant do not involve reciprocal demands and it is purely a one way traffic as indicated in AIR 1960 Punjab
164.
25.As discussed above, the document Ex.A3 clearly reveals that it is not a mutual, open and current account for the purpose of invoking Article
1. Though the debt was acknowledged under Ex.A2, dated 22.07.1998, there was no dealing thereafter for a period about 4+ years. There is no document produced to show that the debt as on 07.06.1998, as seen from the account book under Ex.A3, is acknowledged subsequently within the period of three years. In such circumstances, the suit is hopelessly barred by limitation.
26.The respondent has filed a petition in M.P.(MD)No.3 of 2011 to receive a document as additional evidence on the side of respondent in the appeal. The document annexed to this petition is stated to be a statement of account maintained by the defendant in her books and duly signed on behalf of the defendant. From the document produced, it can be seen that it is a xerox copy of Ex.B18. However, this document has been signed by the husband of the proprietrix of the defendant. The document Ex.B18 is not signed. The document Ex.B18 also was compared with the original ledger. In the counter affidavit filed by the appellant, the stand taken by the appellant in paragraph 3 is reproduced as follows:
?3. I submit that the document sought to be produced as additional evidence, is a Xerox copy of page No.5 of my own Ledger Account, produced and marked as Ex.B18. Before producing the said document a xerox copy of my ledger account was taken and my advocate asked me to put signature in the xerox copy for its authenticity and for the purpose of producing it as documentary evidence on behalf of me. Thereafter, he told me that I should produce a copy of the extract of the ledger account and the same will be compared with the original ledger account and attested by the court clerk. Accordingly, another set of xerox copies was taken and produced in the Court and duly compared and attested by the Court Officer of the Trial Court. In such circumstances, the earlier set of xerox copy of ledger account signed by my husband was left with my advocate at the trial Court. Most probably this xerox copy signed by my husband would have been used at my advocate's office for the purpose of furnishing copy of the document to the other side i.e., the plaintiff. Now, the plaintiff has filed this M.P.No.3 of 2011, to receive this document as additional evidence by giving undue significance to by husband's signature in it.?
The document Ex.B18 has been held to be a self-serving document by the trial Court. By producing document Ex.B18, it is the case of the defendant that a sum of Rs.3,00,000/- was paid to the plaintiff by the defendant between 07.03.2013 and 27.03.2003. It is not the case of the plaintiff that the plaintiff received the amount as found in the statement of account produced by the defendant. The plaintiff has not referred to this document nor acknowledged the payment as found in this additional document. However, the learned counsel for the respondent seeks permission of this Court to mark this document as additional document for the purpose of relying upon this document as an acknowledgement of the defendant's liability as on 27.03.2003 and the document has been described as the statement of account maintained by the defendant in her books and duly signed by the defendant. This is not a case pleaded by the plaintiff in the suit. The plaintiff cannot be permitted to plead a case quiet contrary to the case pleaded in the plaint at the appellate stage. Further, this Court does not find that the respondent has satisfied with the requirement of Order 41, Rule 27 C.P.C., to receive the document as additional evidence at the appellate stage. For all these reasons, the Miscellaneous Petition in M.P.(MD)No.3 of 2011 is dismissed.
27.As a result, this Appeal Suit is allowed and the judgment and decree of the trial Court in O.S.No.305 of 2004 on the file of the Fast Track Court (Additional District and Sessions Judge), Dindigul, dated 20.06.2006 is set aside and the suit in O.S.No.305 of 2004 is dismissed. However, there is no order as to costs.
To
1.The Fast Track Court (Additional District and Sessions Judge), Dindigul.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.