DAU DAYAL Vs. PEAREY LAL

JUDGEMENT

(1.) The appellant before this Court is one of the six defendants in the Court below. The plaintiffs case was this. They, with defendant 6, Ram Gopal, constituted a firm of commission agents carrying on business under the name and style of Ram Gopal Pearey Lal, at Bareilly. Defendants 1 to 5 (the 5 being the appellant here) were a firm of dealers in grain under the name and style of Har Charan Lal Peare Lal. Before the defendant firm started business with the plaintiffs and Ram Gopal, there was a firm, Kanthi Ram Banwari Lal, owned by the first two defendants, who were residents of Budhaun. The firm of Kanthi Ram Banwari Lal employed the plaintiffs as commission agents. Later on, defendants 3 to 5 joined the aforesaid defendants 1 and 2 and constituted themselves into the firm of Har Charan Lal Peare Lal, as is stated above, in order to carry on business at Bareilly. The plaintiffs were employed as commission agents and it was agreed that if and when occasion arose, the plaintiffs would advance money to defendants 1-5 in order that purchases might be effected. The plaintiffs were to get a certain rate of interest on the money they might advance, besides the commission and other incidental charges stipulated for. The transaction between the parties lasted from Jait Sambat 1976 (May-June 1919) for about a year. After crediting the amounts payable by the plaintiffs to the defendants, a sum of Rs. 15,262-13-0 fell due as payable to the plaintiffs and defendant 6. The share of defendant 6 was th. He has not joined in the institution of the suit. The plaintiffs therefore claim Rs. 11,400, being 3/4ths of the entire claim. Defendant 5 alone contested the suit in the proper sense of the term. The other defendants appeared, filed written statements, but did not take any further interest in the defence. Two main defences were set up by the appellant (defendant 5). One was he was not a member of the firm Har Charan Lal Piare Lal and never employed the plaintiffs as his commission agents. His second plea was that the suit was barred by limitation. The learned Subordinate Judge has held that the appellant was a member of the defendant firm and the suit was not time barred. The two paints that have been urged before us are one, that the evidence does not prove that the appellant was a member of the defendant firm and that the suit is time barred. (The judgment then discussed the evidence on the first point and held as follows). We hold that Dau Dayal was a partner of the firm Har Charan Lal Piare Lal.

(2.) The question of limitation has presented some difficulty. The learned Subordinate Judge held, on the authority of a case of this Court reported as Sheo Pratap Singh V/s. Brij Kishore [1912] 15 I.C. 333, and another case from the, Madras High Court, Namberumal Chetty V/s. Kotayya [1913] 14 M.L.T. 498, that Art. 85, Schedule 1, Lim. Act applied and the suit was within time, having been instituted within three years of the date of the last item in the account. The starting paint of limitation under Art. 85 is not the date of the last item, but is the date of the close of the year of the account. This, however, does not make any difference. If Art. 85, Lim. Act, applies, the claim would be undoubtedly within time.

(3.) The contention of the learned Counsel for the appellant was that either Article 61 applied or Art. 83. During the latter portion of the argument, the learned Counsel was more definite and argued that Art. 83 was the more appropriate article. His contention was that every item of transaction must be taken independently and as soon as the plaintiffs had spent money, out of their own pocket, for any purchase made by them or on account of any incidental charges, for the defendants limitation began to start from the date of the advance, under the provision of Col. 3, Art. 83. As regards the claim for commission, his contention was that it was payable on account of "work done" and a suit should have been instituted within three years of the date of the earning of the commission. If these contentions be correct, there can be no doubt that the suit or a major portion of it would be time barred.