N.N. Mithal, J. - (1.) THE Plaintiff -Appellant brought a suit for the recovery of Rs. 40,954.72 together with pendente lite and future interest against the Defendant -Respondent. The said suit was dismissed on the technical plea of limitation although the trial court has found other points in favour of the Plaintiff. This is how the Plaintiff has come up before this Court, aggrieved against the decision of the Court.
(2.) IN the appeal also mainly the question of limitation has been urged on behalf of the plaintiff which aries in the following manner. The Defendant is a sugar factory in the district of Nainital and was interested in appointing its sole agents in the whole of the territory of the Union of India. Of the two proposed agents, the Plaintiff was one and an agreement was executed between the two on 3rd March, 1959 which is Ex. A -30 on the record. The Plaintiff was required under this agreement, to deposit cash security of Rs. 2 lacs with the Defendant, which is described in the agreement as "Manufacturer for a period of two years to ensure due compliance of the work of the agency. This security was to carry an interest at the rate of 41/2% per annum. This amount deposited as security was refundable to the agent i. e. the Plaintiff -Appellant within one month of the expiry of the period fixed in the agreement after adjustment of the accounts between the parties. It was also stipulated that the "manufacturer" would be entitled to realise any loss suffered or expenses incurred and not paid by the Plaintiff from the said amount of security. This amount of security had always to be kept to its full extent and whenever it was to fall short of it, the Plaintiff was required to make it good within 15 days of a notice in writing from the manufacturer. It is alleged that the Plaintiff, as an agent, was entitled to commission of 60 paise per Rs. 100/ -on the price of sugar under the orders secured for the supply of the sugar. In paragraph 6 of the plaint, the Plaintiff has alleged that during the course of its dealing as agent the Defendant also sometimes used to take money on account which was debited to the account of the Defendant In this manner, it is alleged, that a mutual, current and open account was opened between the parties. The Plaintiff maintained an account of the Defendant in which all the transactions were entered and whatever sums were taken by the Defendant from time to time and other expenses incurred by the Plaintiff on 1964, the agency of the Plaintiff came to an end as the sugar had by then become a fully controlled item and the Defendant accordingly returned the security amount of Rs. 2 lacs to the Plaintiff. On the basis of the entries in the account books by the Plaintiff pertaining to the Defendant's account, a sum of Rs. 36,086.10 was alleged to be due and together with 41/2% interest, on 30th January, 1964 the total amount due was Rs. 40,954.72. Since this money was not paid by the Defendant the Plaintiff filed a suit on 27th January, 1967.
(3.) THE Defendant in a detailed written statement denied the various allegations made by the Plaintiff but the relevant paragraph with which we would be concerned now is para 22 wherein it was said that the account between the parties was not mutual, open and current account and the suit was barred by time. The only question on which this Court is required to direct its attention is about the nature of the account and to decide as to whether the suit was barred by limitation. If the account between the parties was found to be of the nature of a mutual, open and current account as alleged by the Plaintiff then, it is undisputed that the suit would be within limitation.;