Mehrotra, J. - (1.) THIS is the defen dants' second appeal. The trial court sub stantially decreed the suit and the lower appellate court has affirmed the said de cree. The defendants have felt aggrieved and have filed the instant second appeal in this Court.
(2.) I am reproducing the following portion of the judgment of the lower ap pellate court with a view to state the facts of the case: "The plaintiff M/s. Naipal Ram Ja-gannath Prasad filed this suit on 17-3-71 for recovery of Rs. 5373.40 P. plus Rs. 1934.28 P interest, i.e. a total of Rs. 7307.68 P. The plaint allegations are that the plaintiff is a registered partnership firm carrying on the business of sale, pur chase and manufacture of brass vessels in Thatheri Bazar, Varanasi City, for the last many years. Late Madho Kumhar alias Mahadeo Kumhar used to take brass-sheets, popularly known as 'Chan-da', from the plaintiff firm for preparing vessels on usual labour charges. Mahadeo Kumhar had a running account in the Karigar Bahi or the Malkhata of the plaintiff-firm. It contained all entries re garding the amount of brass-sheets taken by Madho Kumhar for preparing vessels, the labour charges paid to him etc. etc. The account was squared up on Savan Badi 13 Sambat 2018. Thereafter, during the period Savan Sudi 6 Sambat 2018 - corresponding to 17-8-61 to Aghan Badi 14 Sambat 2025- corresponding to 19-11-68, Madho Kum har took a total of brass-sheets weighing 9636.220 Kgs. and a cash of Rs. 8315.63 P. But Madho Kumhar prepared vessels of the total weight of 9177.760 Kgs. and re turned the vessels to the plaintiff-firm during the period Bhadon Badi 8 Sambat 2018- corresponding to 2-9-61 to Miti Poos Sudi 11 Sambat 2025- correspond ing to 30-12-68 and earned a total amount of Rs. 8787.59 P. as his labour charges therefor. Thus, Madho Kumhar had to re turn an account for brass-sheets weighing 458.460 Kgs. and to get a sum of Rupees 471.96 P. by way of his labour charges. Madho Kumhar died some l\ years prior to the filing of the suit leaving be hind defendant No. 2 as his daughter from his first wife and defendant No. 1 as his second wife. Both of these defen dants have inherited and succeeded to the assets of Madho Kumhar as his heirs and are in lawful enjoyment thereof. The final balance was struck in the plaintiff's books of account on 11-3-68 - according to which Madho Kumhar had to return and account for brass Chanda weighing 458.450 Kgs. and he had to receive Rupees 471.96 by way of his labour charges. The price of this much of brass Chanda at the rate of Rs. 12.75 P. per Kg. comes to Rs. 5845.36 P. and after deducting the labour charges due to Madho Kumhar, the final balance comes to Rs. 5373.40 P. Hence the claim for Rs. 5373.40 P. plus interest Rs. 1934.28 P. The defendants have contested the suit denying all the allegations as made in the plaint. They have contended that Madho Kumhar had stomach trouble and he had been seriously ill for the last 10 years and it was wrong to sav that he took brass-sheets from the plaintiff-firm for preparing vessels on labour charges. It is also denied that he ever received any cash from the plaintiff towards lab our charges or any such brass sheets. They have contended that the books of account relied upon by the plaintiff firm are all forged and fictitious calculated to make undue gain. It is further contended that the plaintiff did not file the suit within 3 years in any case and, as such, it was barred by law of limitation. The defendants are not liable on any account to pay the debt in question. The learned trial court found thai the books of accounts relied upon by the plaintiff firm are quite genuine and the plaintiff was entitled to the sum of Rupees 5373.40 P. as the price of the brass-sheet? supplied to Madho Kumhar, but in the absence of any agreement as to interest it could not be allowed to the plaintiff The learned trial Court rejected the con tention of the defendants that the books of account relied upon by the plaintiff-firm were forged and fictitious and pro ceeded to decree the suit for Rs. 5373.40 P disallowing the interest claimed. Hence this aplpeal by the defendants." In the lower appellate court questions both of law and fact were rais ed but ultimately the said court also re jected the submission made on behalf of the defendants and maintained the de cree passed by the trial court. In the second appeal Shri R. A. Sharma. learn ed counsel for the defendants-appellants has raised only one contention, namely, that the suit was barred by time and therefore, could not be decreed. In my view, he has properly not addressed me on questions of facts in regard to which the findings of the courts below are final and binding on me in the second appeal. Now, the point of limitation arises in this way. The suit was filed on 9th March, 1971. The plaintiff's case as set out in the plaint was that the deceased Madho Kumhar was a technical hand and he used to take raw material from the plain tiff with a view to convert it into utensils and return the same to the plaintiff. Madho Kumhar used to be paid settled wages for the job which he did. The plaintiff further averred that in its ac count books there was a regular account in the name of Madho Kumhar where these transactions were regularly noted. Whatever raw material was given to him used to be entered in his account and the weight of the utensils which he returned also used to be noted in the said acc.'ount from time to time. Similarly, whatever wages used to be paid in account to Madho Kurnhar were also noted in the account of Madho Kumhar. The plaintiff further claimed in the plaint that there was settlement of account for the period ending Sawan Badi 13 Sambat 2018. Dur ing the period from Sawan Sudi 6 Sambat 2018- corresponding to August 17, 1960 to Aghan Badi 14 Sambat 2025-corres ponding to November 19, 1969, the plain tiff claimed that raw material weighing 9636.220 Kgs. was handed to Madho Kum har. During this period he was paid a total sum of Rs. 8315.63 by way of wages paid to him in account from time to time. During the period from Bhadon Badi 8 Sambat 2018-corresponding to 2-9- 1961 up to Poos Sudi 11 Sambat 2025 corresponding to 30-12-1968 Madho Kumhar returned to the plaintiff utensils weighing 9177.760 Kgs. His wages for this quantity of utensils .amounted to Rupees 8787.59 P. From these figures the plain tiff claimed that Madho Kumhar had in his possession the unutilised 458.460 Kgs. of the raw material and he was entitled to receive the balance amount of Rupees 471.96 by way of his outstanding wages, from the plaintiff. The plaintiff further averred that it was entitled to the return of the said raw material or compensation in respect thereof at the prevailing mar ket price. 458.460 Kgs. of the raw mate rial was valued at Rs. 5845.36 and de ducting the said sum of Rs. 471.96 pay able to Madho Kumhar by way of his outstanding wages the net amount for which Madho Kumhar was liable came to Rs. 5373.40. It is an admitted fact that Madho Kumhar died about li years. be fore the institution of the suit and the defendants are his legal representatives. The plaintiff, therefore, sought a decree for the return of the said quantity of raw material weighing 458.460. Kgs. from the defendants or, in the alternative for com pensation amounting to Rs. 5845.36 in respect thereof. The plaintiff however, conceded that out of the said amount of compensation the defendants were entitl ed to a deduction of Rs. 471.96 which was the amount of outstanding wages due to Madho Kumhar from the plaintiff. There fore, the net principal amount of Rupees 5373.40 was claimed along with interest amounting to Rs. 1934.28. Further, pen-dente lite and future interest was also claimed. The trial court held the suit within time because the account between the parties was held to be a mutual, open and current account. The lower appellate court also affirmed the said view. In the judgment of the lower appellate court it has been wrongly stated that the suit (contd. on col. 2) 91. for compensation:- (b) for wronfully taking or injuring or wrongfully detaining any other specific movable property. was filed on 17-3-1971. In fact, the suit was filed on 9-3-1971. .It is not disputed before me that in case the account is held to be mutual, open and current then the courts below have taken the correct view in holding that the suit is within time. However, Shri Sharma, the learned coun sel for the defendants- appellants, con tends that the account between the par ties was not a mutual, open and current account as the said expression has come to be interpreted in the decided case law. In particular, he has placed reliance on Hindustan Forest Co. v. Lal Chand, (AIR 1959 SC 1349) where it has been laid down as under: "The requirement of reciprocal de mands involves 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 par tial discharges of such obligations." I think that Shri Sharma is right in his contention. In the present case, what has happened is that Madho Kumhar used to be paid his wages from time to time in account. No independent obligations were being created between the parties. The wages which were payable to Madho Kumhar were not in the nature of inde pendent obligations arising out of inde pendent transactions. They arose out of the one and the same transaction between the parties. As stated above, raw mate rial was being given to Madho Kumhar for being converted into finished goods and the finished goods were to be return ed to the plaintiff. For the work done Madho Kumhar was entitled to his wages. Therefore, it cannot be said that here is a case of independent obligations coming into existence as a result of contract be tween the parties,
(3.) HOWEVER , I think the find ings of the courts below on the ques tion of limitation can be affirmed on an alternative ground which has been pressed on me by Shri R. N. Singh, the learn ed counsel for the plaintiff-respondent. He has contended that if Article 1 of the new Limitation Act was not applicable on the ground that the account between the parties was not mutual, open and current then it will be Art. 91 (b) of the new Limitation Act which will be applic able to the facts of the case and under the said Article also the suit will be with in time. The said Article lays down as under:- Three years When the property is wrong fully taken or injured or when the detainer's posses sion becomes unlawful. It may be stated here that the said provi sion corresponds with Article 49 of the old Limitation Act. Shri Singh's conten tion is that the suit in effect is a suit based on bailment and, therefore, the limitation started only when the defen dants illegally failed to return the raw material claimed by the plaintiff. Shri Singh has placed reliance on Mt. Laddoo v. Jammaluddin, (AIR 1920 All 353 (2)) where it is laid down:- "Where movables are entrusted to any person on the condition that they will be returned on the expiry of a specified period the fact that they are detained beyond that period and no demand is made for their return does not render the detainer's possession unlawful. It is only when a demand is made and there is a refusal to comply with the demand that possession becomes unlawful and the period of limitation for a suit for the re turn of the movables or in the alterna tive for their value commences to run from the date of such refusal under Art. 49." Shri Sharma, the learned counsel for the appellants, however, contended that with out the necessary pleadings and the evi dence in the record, it was not permis sible for the plaintiff-respondent to set up the alternative contention based on Article 91 (b) of the new Limitation Act. In this connection he invited my atten tion to a passage in AIR 1959 SC 1349 at page 1352 which I reproduce below:- "The applicability of that Article de pends on special facts. No such facts ap-(dontd. on icol. 2) "26. For money payable to the plain tiff for money found to be due from the defendant to the plain tiff on .accounts stated therein, If this article be deemed to be applicable then according to Shri Sharma the suit must be held to be barred by time. He further submitted that in the plaint it has been stated by the plaintiff-firm itself that there used to be an annual settle ment of account and, therefore, as the transactions in the suit spread over a period of 1961 to 1968, therefore, the suit must be held to be barred by time, on the basis of the annual settlement of ac counts. Shri Sharma drew my attention to the allegations in the plaint and in particular to para 9 where the dates of the accrual of the cause of action to the plaintiff are stated. He contended that the entire approach of the plaintiff is to pear in the plaint. There is no hint there that the account was mutual. We feel sure that if the attention of the learned Judges of the High Court had been drawn to this aspect of the matter, they would not have permitted any question as to Art. 115 being raised and the parties would have saved considerable costs, thereby." Shri Sharma further placed reliance on Hira Lal v. Badkulal, (AIR 1953 SC 225) where it is laid down as under: "Mr. Bindra next urged that the plaintiff's suit should have been dismiss ed because it could not be maintained merely on the basis of an acknowledg ment of liability, that such an acknow ledgment 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 conclu sion." ;