Patna High Court
Baidyanath Mandal And Ors. vs The Coal Purchase And Inspection Agency ... on 1 May, 1970
Equivalent citations: AIR1971PAT229, AIR 1971 PATNA 229, 1971 BLJR 239 ILR (1971) 50 PAT 401, ILR (1971) 50 PAT 401
JUDGMENT S.N.P. Singh, J.
1. This appeal is by the defendants and it arises out of a money suit filed by the plaintiff Company for realisation of Rs. 24,499.71 Paise as arrears of commission (besides costs) which was payable by the defendants to the plaintiff Company under a contract entered into between them. The suit was tried in the Court of the 1st Subordinate Judge at Dhanbad and it has been decreed in full with costs.
2. The plaintiff is a limited Company haying its head office at Calcutta and carries on the business of commission agents and middlemen at various places including Dhansar in the District of Dhanbad. Defendant Nos. 1 to 5 are partners of a firm known as Messrs. B. N. Mandal and Company (defendant No. 6). The defendants own a colliery and they carry on the business of sale and despatch of coal from the colliery to different customers at different places. The case of the plaintiff Company, as made out in the plaint, is that the defendants approached it for the sale of their coal by securing customers and agreed to pay commission at the rate of six annas per ton on sale of the coal to the customers secured by it. The said contract was entered into between them by correspondence. In accordance with the terms of the contract, the plaintiff Company secured different customers including Messrs. Indian Iron and Steel Co., Ltd., and Messrs. Burn & Co.. for disposal of the stork of coal raised by the defendants from their colliery. The defendants used to despatch coal to the customers secured by the plaintiff Company from time to time and they used to intimate to it about the despatches. The plaintiff Company thereupon used to submit bills for commission on the basis of the information received by it. The plaintiff Company has alleged that a sum of Rs. 24,499.71 Paise is payable by the defendants to the plaintiff Company on account of the bills submitted by it after adjustment of all payments made by the defendants but the defendants have failed to pay the said amount in spite of repeated requests and service of notice on them. In the schedule of the plaint the particulars of the bills alleged to have been submitted by the plaintiff have been given. As stated in paragraph 10 of the plaint, the cause of action for the suit arose at Dhansar within the jurisdiction of the Court of the Subordinate Judge at Dhanbad on, 3-10-58, 3-1-59, 19-6-59, 19-9-60, 3-8-61 and on subsequent dates.
3. In the written statement filed by the defendants it has been denied that they approached the plaintiff Company at Dhansar. According to the defendants' case, the representative of the plaintiff Company had come to their Calcutta office and all the talks and negotiations had taken place there and correspondence was subsequently made. According to the defendants, no cause of action arose at Dhansar on the different dates mentioned in the plaint. In paragraph 7 of their written statement, the defendants have admitted the statements made in paragraph 4 of the plaint, namely, that in pursuance of the said contract the plaintiff Company secured different customers including Messrs. Indian Iron and Steel Co., and Messrs. Burn & Co., for purchase of coal from the defendants' colliery; that the defendants used to despatch coal to the customers from time to time and used to intimate to the plaintiff Company about the despatches and that the plaintiff Company used to submit bills for commission on the basis of the information received by it. The defendants, however, have denied the fact that a sum of Rs. 24,499.71 Paise or any amount was due to the plaintiff Company from them. According to the defendants, by letter No. 2061-A/59 dated the 29th of May, 1959, they informed the plaintiff Company that they would no more pay any middleman commission. The defendants further have taken the plea that the suit is barred by limitation. They have denied having sent any letter to the plaintiff Company on the 19th of September, 1960. According to the defendants, their manager was not authorised to write such a letter and the said letter and all other letters mentioned in paragraph 10 of the plaint would not save the bar of limitation. The defendants have thus denied the fact of acknowledgment of the liability in any of the letters alleged to have been sent by them.
4. On the pleadings of the parties, the following issues were framed by the trial court:
"I. Has the plaintiff got any cause of action for the suit?
II. Is the suit barred by limitation?
III. Has this Court jurisdiction to try this suit?
IV. Is the plaintiff entitled to get a decree as prayed for?
V. To what relief, if any, is the plaintiff entitled."
5. The learned Subordinate Judge has decided all the issues in favour of the plaintiff Company. On issue No. 3, the finding of the learned Subordinate Judge is that the contract was entered into at Dhansar and the payment was agreed to or required to be made to the plaintiff Company at Dhansar. The cause of action, therefore, arose within the jurisdiction of his court and his court had territorial jurisdiction to try the suit. On issue No. 2, the trial Court has recorded the finding that the amount claimed by the plaintiff Company has been saved from the bar of limitation by such acknowledgement as has been made under Exhibits 1 and 1/d. On issue No. 4 the trial court has arrived at the finding that the plaintiff Company's case for arrears of Rs. 24,499.71 Paise has been proved to be due and the plaintiff Company is entitled to get a decree for the said amount. In view of the above-mentioned findings on issue Nos. 2, 3 and 4. the learned Subordinate Judge decided issue Nos. 1 and 5 also in favour of the plaintiff Company and held that the plaintiff Company has got cause of action and the plaintiff Company is entitled to a decree for the amount claimed besides costs.
6. Mr. R. S. Chatterji, learned counsel appearing for the appellants, while opening the argument, raised a preliminary point regarding the maintainability of the suit as framed on the ground that the plaint had been signed by one Sri P. B. Maitra, the Liquidator of the plaintiff Company and it has not been proved that he had the necessary authority to file the suit on behalf of the plaintiff Company. Mr. Chatterji, however, gave up this point in view of the fact that no such objection has been raised by the defendants in their written statement and no issue was framed on the question whether Sri P. B. Maitra was legally authorised to file the suit on behalf of the plaintiff Company.
7. Mr. Chatterji raised only two contentions, namely. (1) that the entire claim of the plaintiff Company is barred by limitation; and (2) that the Subordinate Judge at Dhanbad had no jurisdiction to try the suit. According to learned counsel, the trial court has recorded erroneous findings on issues Nos. 2 and 3.
8. I will first consider the question whether the Subordinate Judge had jurisdiction to try the suit. According to Mr. R. S. Chatterji, the facts showing that the Subordinate Judge at Dhanbad had jurisdiction to try the suit have not been specifically mentioned in the plaint nor does the plaint disclose the facts constituting the cause of action and when the cause of action arose. In paragraph 10 of the plaint there is an averment to the effect that the cause of action for the suit arose at Dhansar within the jurisdiction of the Court of the Subordinate Judge at Dhanbad on the different dates mentioned therein. It cannot, therefore, be held that the plaint is defective and It ought to have been rejected in limine because of want of necessary particulars. Both the parties have led evidence bearing on the question of jurisdiction of the Subordinate Judge at Dhanbad to try the suit and the question whether the Subordinate Judge had jurisdiction or not has to be decided on the evidence which has been brought on the record.
9. In the plaint it is not specifically stated that the defendants had approached the plaintiff Company for sale of their coal by securing customers at Dhansar and the contract was entered into between them there. On the contrary, there is a statement in paragraph 3 of the plaint to the effect that the contract was entered into between the parties by correspondence. Although it has been stated in that paragraph that the correspondence in question are being filed and they may be treated as part of the plaint, no letter written by either party relating to the completion of the contract has been filed along with the plaint or has been brought on the record subsequently. As I have already stated, according to the defendants' case, they never approached the plaintiff Company at Dhansar but the representative of the plaintiff Company had come to the defendants' head office at Calcutta where all talks and negotiations had taken place. Thus, according to the defendants' case, there was an oral contract which was entered into between the parties by talks and negotiations at Calcutta.
Regarding the correspondence relating to the contract, it has been stated in paragraph 6 of the written statement that they took place subsequently. The learned Subordinate Judge on comparison of Paragraph 3 of the plaint and paragraph 6 of the written statement has taken the view that the correspondence confirming the agreement took place subsequently. The learned Subordinate Judge mainly acting on the evidence of P. W. 1 has held that the defendants had approached through Mr. B. N. Mandal the plaintiff Company's Managing Director Mr, Wallace at Dhansar and had settled the terms there. The contract was accordingly entered into at Dhansar and the cause of action arose there. P.W. 1, who was ths personal Assistant to the Managing Director of the plaintiff Company in 1958, has given evidence to the effect that the plaintiff Company had an office at Dhansar in the district of Dhanbad during the period 1951 to 1961. In the year 1951 or 1952 Mr. B. N. Mandal as the representative of the defendants had come to the Dhansar office of the plaintiff Company and he had a talk with Mr. Wallace, the Managing Director of the plaintiff Company. He offered to give commission to the plaintiff Company at the rate of six annas per ton on sale of coal to the customers secured by him and Mr. Wallace agreed. D.W. 2, the office superintendent of the firm of the defendants, has stated in his evidence that Mr. Wallace had come to the Calcutta office of the firm for the first time either in the year 1953 or 1954. At that time he was the personal Assistant of Mr, B. N. Mandal. In his presence it was settled between Mr. Mandal and Mr. Wallace that Mr. Mandal would pay to the plaintiff Company commission at the rate of six annas per ton on the coal which would be sent to the customers secured by the plaintiff Company.
According to the witness, all the negotiations took place in the office of the firm at 22, Canning Street, Calcutta. He has further made a statement to the effect that Mr. B. N. Mandal. who was a member of the West Bengal Assembly from 1952 to 1961, did not go anywhere outside Calcutta to settle such transactions. The learned Subordinate Judge has taken the view that it is improbable that the witness would remember the talk which took place between Mr. Mandal and Mr. Wallace after a lapse of ten years, specially when he had no personal interest in the business. He has also given some other reasons for not relying on the evidence of D.W. 2. He has drawn an adverse inference against the defendants because Mr. B. N. Mandal did not examine himself as a witness. Thus on the statements made by P.W. 1 in his examination-in-chief the learned Judge has held that the contract was entered into between the parties at Dhansar. The above finding of the trial court does not appear to be sound for the reasons which I am going to state presently,
10. As already stated, It Is the definite case of the plaintiff Company in Paragraph 3 of the plaint that the contract was entered into between the parties by correspondence. Though P.W. 1 stated in his examination-in-chief that the talks and negotiations took place between the parties at Dhansar, he made the following statements in his cross-examination: "Negotiation for business took place at Dhansar. But later the terms of the business were finalised through correspondence." These statements of the witness give an indication that the terms of the contract were ultimately finalised through correspondence though the initial talk had taken place at Dhansar. P.W. 1 admitted that the plaint had been prepared at his instance but added that he told his lawyer that the negotiation for business had been made at Dhansar and that the terms in respect of the same were subsequently settled through exchange of letters. In the plaint there is no state-merit to the effect that any negotiation for business took place at Dhansar. For all these reasons it has to be held that the plaintiff Company has failed to prove that the contract was entered into between the parties at Dhansar.
11. As provided under Clause fc) of Section 20 of the Code of Civil Procedure, a suit can be instituted in a court within the local limits of whose jurisdiction the cause of action in part arises. It is well-settled that part of the cause of action arises where money is expressly or impliedly payable under a contract. Although the plaintiff Company has not adduced any evidence on the point as to What were the terms of the contract regarding the place where the payment was to be made under the contract, the facts that all the bills were sent from Dhansar office of the plaintiff Company to the defendants and payments used to bo made to the plaintiff Company at its Dhansar office go to show that there was an implied contract between the parties that payments would be made to the plaintiff Company at Dhansar. The defendants have not produced even one paper to show that any payment was made to the plaintiff Company at its Calcutta office. Indeed, the statements made by P.W. 1 in his examination-in-chief that the defendants used to send details in respect of the despatches of their coal to the plaintiff Company at Dhansar, that he used to prepare bills of commission on the basis of such details supplied by the defendants at the rate of six annas per ton of coal and used to send bills to the Calcutta office of the defendants and that the defendants used to pay such bills by sending cheques to the Dhansar office of the plaintiff Company have not been challenged by the defendants in his cross-examination. In their written statement the defendants have not alleged that the payment was to be made under the terms of the contract at the Calcutta office of the plaintiff Company. Although the defendants have admitted that a contract was entered into between them and the plaintiff Company regarding the supply of coal, they have not led any evidence on the point as to where the payment of commission was to be made to the plaintiff Company according to the terms of the contract. In the circumstances the trial court was perfectly justified in holding that there was an implied contract between the parties that payments would be made by the defendants to the plaintiff Company at Dhansar and as such a part of the cause of action arose there.
12. Mr. Susil Kumar Mazumdar, learned counsel appearing for the respondent, submitted in course of his argument that the provisions of Clause (b) of Section 20 of the Code of Civil Procedure are also attracted in this case and as such the suit was maintainable within the jurisdiction of the court of the Subordinate Judge at Dhanbad. There is substance in this contention. D.W. 1 has given evidence to the effect that Kenua-dih colliery, which lies within the district of Dhanbad, belongs to the defendants. This fact has not been controverted in the cross-examination of the witness. There is no suggestion that the colliery in question is not running or it has been leased out to some one else. If the defendants are running a colliery within the local limits of the jurisdiction of the Subordinate Judge at Dhanbad, it has to be held that they are carrying on business within the jurisdiction of the said court and as such Clause (b) of Section 20 of the Code of Civil Procedure would apply. I may also state here that, as deposed to by P.W. 1, coal used to be supplied by the defendants to Martin Burn Limited at Galfarwari, which lies within the jurisdiction of Bagmara sub-i division in the district of Dhanbad.
13. I accordingly hold that the conditions laid down in Clauses (b) and (c) of Section 20 of the Code of Civil Procedure are fulfilled and the suit was maintainable within the jurisdiction of the Court of the Subordinate Judge at Dhanbad. The first contention raised by learned counsel appearing for the appellants is, therefore, rejected.
14. Now I consider the question whether the entire claim or any part thereof made by the plaintiff Company is barred by limitation. In the schedule of the plaint particulars of 32 items of bill, beginning from January 1957 up to December. 1959, have been given in respect of which payment has been claimed, The learned Subordinate Judge has taken the view that the limitation would run from the date of each bill and if a particular bill is beyond three years, the claim in respect of that bill would be barred by limitation, unless it is saved by any acknowledgement of the liability. The suit having been filed on the 31st of January, 1962. he has held that the claim In respect of the bills, which are of January, 1959, or of subsequent dates, would not be barred by limitation. Before the Subordinate Judge it was urged on behalf of the plaintiff Company that its entire claim has been saved from the bar of limitation by the acknowledgement made in the three letters (Exhibits 1/a, 1 and 1/d). The learned Subordinate Judge has held that the letter (Exhibit 1/a) dated the 10th of June. 1959, cannot be taken to be an acknowledgement of the liability in respect of arrears for the period before January, 1959. According to the learned Subordinate Judge, in letter (Exhibit 1) dated the 19th of September, 1960, sent by one Mr. Das, who was the Manager of the defendants, there was an acknowledgement of the liability of outstanding commissions and it saved the bar of limitation in respect of the claim of bills up to September, 1957. Regarding Exhibit 1/d, a letter dated the 18th of June, 1958 the trial court has held that it was an acknowledgement of the liability in respect of Rs. 10,403.29 np,, which was the amount outstanding at the end of May, 1958, and it included the amount In respect of the bills relating to June, July and August, 1957. By reason of such acknowledgement fresh period of limitation started from the 18th June, 1958, and before the expiry of the period of three years on 18th June. 1961, a fresh acknowledgement was made under Exhibit 1 dated the 19th of September, 1960. Thus the claim in respect of the bills of June, July and August 1957 was also saved from the bar of limitation. The learned Subordinate Judge has ultimately held that the acknowledgement made under Exhibits 1 and 1/d saved the entire claim of the plaintiff Company from the bar of limitation. Regarding the letter (Exhibit A-3), the learned Subordinate Judge has arrived at the finding that the allegation of the defendants that the letter, the copy of which is Exhibit A-3, was sent to the plaintiff Company is not true. 15. On the question of limitation, Mr. Chatterjee appearing for the appellants made two-fold submissions. In the first place, he submitted that in absence of any averment in the plaint as to how the limitation has been saved, the plaintiff Company cannot show that its claim or part thereof is saved from the bar of limitation by any acknowledgement of liability. Secondly, he urged that there is no valid acknowledgement of any liability in the letters (Exhibits 1 and 1/d). There is no substance in the submission of Mr. Chatterjee that the plaintiff Company cannot show that its claim or part thereof is saved from the bar of limitation by any acknowledgement of liability. No doubt in the plaint it is not expressly stated that the limitation in respect of any part of the claim is saved by reason of any acknowledgement of liability. In paragraph 10 thereof it is stated that the cause of action arose on 19-9-1960 and on other dates. It appears that the date 19-9-60 was mentioned in paragraph 10 of the plaint because the letter (Exhibit 1) bears that date. This is clear from the averment made in paragraph 11 of the written statement, which reads as follows:
"That the defendants crave leave to submit that no letter was written to the plaintiff from the office of the defendants on 19-9-60. The letter if any is concocted and has been got up. The defendants' manager was never authorised to write such letter and that alleged letter or any letter or letters dated 19-6-59 and others mentioned in para 10 of the plaint would not and cannot save limitation. There is no acknowledgement of liability in any of the correspondences or the alleged correspondences."
Apart from that, the defendants had full knowledge in the trial court that the question of acknowledgement was an issue in the case and they led evidence bearing on that issue. In the circum-stances the absence of specific averment in the plaint to the effect that the limitation has been saved by acknowledgement of liability was a mere irregularity which has not caused any prejudice to the defendants.
16. The second submission of Mr. Chatterjee deserves careful consideration. I will first deal with Exhibit 1/d, which is dated the 18th of June, 1958. In this letter there is a reference to letter No. 24/26 dated the 16th of June, 1958, in respect of outstanding commission bills. This letter was issued on behalf of B. N. Mondal & Co., and was signed by B. N. Mondal himself as proprietor. In the letter there is the following statement;
"Re. Your commission :-- We have noted your dues and as soon as the order is placed for Burnpur and as soon as we are in a position to despatch your Sancto-ria Slack Coal to Burnpur, we shall arrange clearance of your dues gradually and within shortest period."
With regard to this letter Mr. Chatterjee submitted that the statements made in this letter would bind only Mr. B. N. Mondal and not the other partners of the firm. In support of his contention he relied on the decision in the case of Ratan Lal v. Commercial and Industrial Bank Ltd., AIR 1965 Andh Pra 349. In that case the question for consideration was whether a written acknowledgement signed or a payment made by one of the joint debtors kept the debt alive and subsisting against the other joint debtors. In view of the provisions of Sub-section (2) of Section 21 of the Indian Limitation Act. 1908. it was held that such an acknowledgement or a payment by one of the joint debtors would not keep the debt alive and subsisting against the other joint debtors, unless the plaintiff proves that the debtor who has acknowledged the debt or made the payment was the agent of the other joint debtors duly authorised by them to acknowledge the liability or to make the payment on account of the debt. In that very case, however, it was held that in the case of partners Section 21(2) of the Limitation Act, 1908, is not intended to apply to transactions conducted by them in the ordinary course of partnership business because of the general principle of law that partners are the agents of one another and that their acts done in the ordinary course of the partnership business bind the partnership. In the instant case it is an admitted fact that defendants 1 to 5 are the partners of M/s. B. N. Mondal & Co., a partnership firm carrying on business at 22 Canning Street, Calcutta. It is, a common ground that the contract between the plaintiff Company and the defendants was entered into as a result of negotiations between Mr. B. N. Mondal, on behalf of the partnership firm and the representative of the plaintiff Company. The letter (Exhibit 1/d) had been signed by Mr. B. N. Mondal on behalf of M/s. B. N. Mondal & Co. The authority of Mr. B. N. Mondal to sign such a letter of acknowledgement has not been repudiated in the written statement filed by the defendants. It must, therefore, be held that Mr. Mondal issued the letter (Exhibit 1/d) in the ordinary course of the partnership business and the letter signed by him was binding on the partnership. There is, therefore, no substance in the contention raised by Mr. Chatterjee regarding Exhibit 1/d. As held by the trial court, it was an acknowledgement of the liability in respect of Rs. 10,403.29 paise, which was outstanding at the end of May, 1958, and it included the amount in respect of the bills relating to June, July and August, 1957. This acknowledgement saved the limitation only till the 18th of June, 1961. The question whether the limitation in respect of the aforesaid liability was saved or not on the date the suit was filed would ultimately depend on the decision on the question whether in the letter (Exhibit 1) dated the 19th of September, 1960 there was a valid acknowledgement of the existing liabilities.
17. Regarding the letter (Exhibit I), Mr. Chatterjee for the appellants raised two points, namely, (1) that the statements made in the letter are vague and they do not amount to any admission or acknowledgement of any liability; and (2) that Mr. Das had no authority, express or implied to make acknowledgement of liability on behalf of the defendants.
18. The letter (Exhibit 1) was sent on behalf of B. N. Mondal & Co., Colliery proprietors, in reply to the letter dated the 14th September, 1960. addressed to Mr. B. N. Mondal. The letter reads as follows:
"For Attention--Mr. K. C. Chatterjee Dear Sirs, We are in due receipt of your D. O. letter of 14th September, 1960 addressed to the undersigned.
The working of the Sanctoria Mine has been closed from the Mines Department and we are trying our level best to resume working of the mine with full force. Sanctoria Colliery are giving us trouble for the last 6 months or more due to sand stowing arrangements and as such we could to you, your outstanding commission. However, as soon as the position improves, we shall see to it positively and we are really sorry for the inconvenience."
In this letter the expression "as such we could to you, your outstanding commission" does not convey any sense. It was submitted by Mr. Mazumdar appearing for the respondent that there is a typing mistake in the letter and for the words "we could not pay to you", the words "we could to you" have been typed. According to learned counsel, the statement "However, as soon as the position improves, we shall see to it positively and we are really sorry for the inconvenience" indicates that there has been such a mistake in the typing of the letter. Mr. Mazumdar further drew our attention to the fact that this letter was sent in reply to the letter dated the 14th September, 1960, by which a reminder had been sent for payment of outstanding commission bills. It is difficult to accept the submission of Mr. Mazumdar.
There is an ambiguity in the letter as it stands and the Court cannot supply the words which are missing. Even the expression "we shall see to it" is vague and from it it cannot be inferred that it related to the present subsisting liability or that it indicated the existence of jural relationship between the parties and was made with the intention of admitting such a relationship. As observed in the case of Shapoor Freedom Mazda v. Durga Prosad Chamaria, AIR 1961 SC 1236, in construing words used in the statements made in writing on which a plea of acknowledgement rests, Courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the state-ments by an involved or far fetched pro-cess of reasoning. No doubt in the letter (Exhibit 1/g) addressed to Mr. B. N. Mondal a reminder for payment of outstanding bills was made but the contents of the letter (Exhibit 1), which was sent in reply to that letter, are vague and it is difficult to hold on the statements made therein that any admission or acknowledgement of the existing liability was made. There is. therefore, substance in the first point raised by Mr. Chatterjee regarding Exhibit 1.
19. As already stated, in paragraph 11 of the written statement the defendants have taken the specific plea that the Manager was not authorised to write the letter dated the 19th of September, 1960. It appears from the judgment under appeal that the point that Mr. Das had no authority on behalf of the defendants to acknowledge any liability was argued in the trial Court. The learned Subordinate Judge, however, rejected the argument of the defendants that Mr. Das, had no such authority on the grounds that the defendants did not prove as to what were the authorities of Mr. Das and that Mr. Das used to sign letters on behalf of the firm. It was rightly contended by Mr. Chatterjee appearing for the appellants that the trial court has not given valid grounds for inferring that Mr. Das had the authority to make acknowledgement on behalf of the defendants. Explanation II to Section 19 of the Limitation Act, 1908, provides that an acknowledgement under the Section may be signed either personally or by an agent duly authorised in this behalf. The onus of proving that Mr. Das was duly authorised by the defendants to make an acknowledgement of a liability on their behalf was on the plaintiff Company. The plaintiff Company has not adduced any evidence to prove that Mr. Das had such an express authority. Therefore, the only question for consideration is whether on the materials on record it can be inferred that Mr. Das had the implied authority to make such an acknowledgement.
The fact that the defendants have not proved as to what were the authorities of Mr. J. Das as a Manager cannot, in my opinion, be taken as a circumstance justifying an inference that Mr. J. Das had the valid authority to make an acknowledgement on behalf of the defendants. D.W. 2 has stated in his evidence that Mr. B. N. Mondal used to sign letters on behalf of the firm and during his absence Mr. J. Das. who was the Manager of the firm, used to sign letters and send them. He has further made a statement to the effect that the office superintendent used to receive letters which were sent to the firm from outside and on receiving such letters he used to forward them to Mr. B. N. Mondal and steps used to be taken on the letters according to Mr. Mondal's order. On the basis of the aforesaid statements of D.W.2, the learned Subordinate Judge has held that Mr. Das had the authority to write letters of acknowledgement of liability also. In the case of Uma Shankar v. Gobind Narain, AIR 1924 All 855. it was held that the mere fact that the defendant used to write letters on behalf of his principal was not sufficient in law to enable the Court to infer that he was an authorised agent for the purpose of making an acknowledgement of liability.
Mr. Mazumdar appearing for the res-pondent Company, however, relied on a decision in the case of Ebrahim Haji Yakub v. Chunilal Lalchand Kabre, (1911) ILR 35 Bom 302. In that case it was held that a Gomastha who generally managed the affairs of the firm and was allowed to write letters on behalf of the firm which were never repudiated could acknowledge debts on behalf of the firm. In that case the inference that the Gomastha had the authority to make acknowledgement on behalf of the firm was drawn on the peculiar facts of that case. That case, however, does not support the proposition that an inference must necessarily be drawn that an agent had an authority to make acknowledgement of liability from the mere fact that he used to write letters on behalf of the principal. In the instant case several letters which were issued on behalf of B. N. Mondal & Co., to the plaintiff Company have been filed. All these letters except Exhibit 1 bear the signature of Mr. B. N. Mondal himself. Thus there is nothing to show from the record that Mr. Das frequently used to write letters, such as Exhibit 1, on behalf of the defendants. I am, therefore, of the opinion that on the basis of the oral statements of D.W. 2 that during the absence of Mr. Mondal, Mr. Das used to write letters on his behalf it would not be legitimate to draw the inference that Mr. Das had the necessary authority to make acknowledgement of the liability on behalf of the defendants. The second point raised on behalf of the appellants, therefore, must prevail and it has to be held that the materials on the record do not establish the fact that Mr. Das, the Manager of the firm had the authority to make an acknowledgement of liability on behalf of the firm or the other defendants.
20. For the reasons stated above, I hold that the trial court has arrived at an erroneous finding that the bar of limitation has been saved by Exhibit 1. As the finding of the trial court with regard to Exhibit A/3 has not been challenged before us on behalf of the appellants, it is not necessary to consider the question whether the letter, a copy of which is Exhibit A/3, was sent to the plaintiff Company or not.
21. The question which remains to be considered is as to what is the amount out of the claim made by the plaintiff Company which is not barred by limitation. As already stated, according to the learned Subordinate Judge, the suit having been filed on the 31st of January, 1962, the claim in respect of the bills which are of January, 1959 or of subsequent dates would not be barred by limitation. Item No. 3 of the Schedule of the plaint at page 2 is bill No. 152/7-235 for January, 1959 for Rs. 556.50. Exhibit 1/z-19 is the copy of the letter by which the bill in question was forwarded. This letter shows that the bill was in respect of commission on coal supplied from Sanctoria Colliery to Burnpur Works (Iron Section) and Gulfarbari Works during January. 1959. On the facts of the instant case it has to be held that commission became payable to the plaintiff Company on the date on which coal was supplied to the customers. As Exhibit 1/z-19 does not indicate the date on which the coal was supplied to the customers in the month of January. 1959, it is not possible to infer that such coal was supplied on the 31st of January, 1959. If any coal was supplied on any date before the 31st of January, 1959, the claim in respect of such a supply would not be saved from the bar of limitation as the suit was filed on the 31st of January, 1962. That being the position, the plaintiff Company is entitled to a decree only in respect of coal which was supplied from the month of February, 1959, onwards. In items 4 to 14 of the Schedule at page 2 the bills in respect of coal which was supplied from the month of February. 1959 to the month of December, 1959 have been mentioned. The total amount covered under these bills comes to Rs. 8,730.79 paise. The covering letters (Exhibits 1/z series) in respect of those bills show that coal was supplied from the month of February, 1959 onwards. The plaintiff Company would be entitled to a decree in respect of the said amount as it is not barred by limitation. I may state here that Mr. Chatterjee appearing for the appellants did not challenge the finding of the trial court on issue No. 4 regarding the amount of claim under different bills and has argued only on the question of limitation. As the claims in respect of bills prior to the bills for the month of February, 1959, are barred by limitation and are not saved by any acknowledgement of liability, I hold that the plaintiff Company is entitled to a decree only in respect of a sum of Rs. 8,730.79 paise with proportionate costs of the trial court.
22. The appeal is accordingly allowed in part wth proportionate costs of this court and the judgment and decree passed by the trial court is modified and the suit of the plaintiff Company is decreed only in part as indicated above.
S. Sakwak Ali, J.
23. I agree.