Pratibha Bonnerjea, J. - (1.) The plaintiff instituted this suit against the defendant for recovery of Rs. 5,89,175.50 on the allegations that pursuant to a verbal agreement in the year 1965 with the defendant, the plaintiff supplied Sul-pher and Rochphosphate to the defendant on terms that the provisional price would be paid by the defendant before supply. The final total price of each consignment would be determined thereafter. The plaintiff would keep a mutual, open and current account between the parties and the account would be adjusted on 31st March every year. Upon adjustment of the provisional price with the final price, the balance found due would be paid either by the defendant to the plaintiff or by the plaintiff to the defendant depending on the result of the adjustment. The unpaid balance would carry interest at the rate of 12% per annum. These terms were set out in paras 4 and 5 of the plaint. It was further alleged that the transactions were carried on between 1765-70 and the last entry was made in the said account on 31-3-1970. Between 7-3-1970 to 9-9-1972, the defendant wrote 6 letters to the plaintiff acknowledging in writing its liability in respect of the said transactions. Upon adjustment, the amount mentioned above was found due to the plaintiff and the suit was instituted on 5-4-1974. No part of the claim is barred by limitation.
(2.) The defendant filed its written statement denying the alleged verbal contract of 1965 and its alleged terms. The allegations that the account be- tween the parties was mutual, open and current account was also denied. The defendant alleged that the Government of India used to allot the goods to the defendant from time to time and the plaintiff used to supply the same on the basis of such allotment letters, containing terms and conditions of sale. Each transaction was a separate, distinct and independent transaction. The allegations of provisional payment and fixation of final price later on were admitted. The allegation of adjustment of the account and its correctness were disputed and it was alleged that on proper account being taken a large sum would be found due to the defendant by the plaintiff. The defendant denied that there was any acknowledgment of liability in writing by the defendant and alleged that the plaintiff's claim if any, was barred by limitation.
(3.) On the basis of the pleadings, the following issues were raised :-- 1. Was there any agreement as alleged in paras 4 and 5 of the plaint? 2. Was a mutual open and current or current and continuous account maintained by the plaintiff as alleged in para 6 of the plaint? 3. (a) Did the defendant No. 2 acknowledge its liability, if any, or make any admission as alleged in para 7 of the plaint? (b) Did the letters mentioned in para 7 of the plaint constitute acknowledgment or admission of liability?;