LODHA, J. - (1.) -
(2.) THIS is a defendant's second appeal arising out of a money suit. Briefly stated, the case of the plaintiff respondent Ghanshyamdas is that defendants Nos. 1 to 3 Chunilal, Nemichand and Mithalal were working as commission agents in partnership under the name and style of firm Jairoop Chunnilal at Jodhpur in connection with sale purchase of gold and silver bars and Ganeshmal defendant No. 4 transacted business in gold and silver through the agency of defendants Nos. 1 to 3 in Smt. 2002, It was further alleged in the plaint that Ganeshmal had also money dealings with defendants Nos. 1 to 3 who used to maintain accounts of all the dealings of Ganeshmal of cash as well as of gold and silver. It was averred that on Srawan Bad 9, Smt. 2002, Ranulal the Munim of firm Jairoop Chunnilal sent an account to Ganeshmal marked Ex. 1 showing an amount of Rs. 29,780-14-3 to the credit of Ganeshmal and Rs. 22,422-12-6 on the debit side. Thus according to this account a sum of Rs. 7358-1-9 was due to Ganeshmal from the appellant towards which Rs. 1000 were paid later on by defendant respondent Nemichand to Ganeshmal through a Hundi and thus a sum of Rs. 6358-1-9 remained outstanding in favour of Ganeshmal against the defendant appellant. The plaintiff's case is that this debt was assigned by Ganeshmal to him by a deed of assignment dated Chet Sudi 7 Smt. 2006, notice of which was also given to the defendants Nos. 1 to 3. The plaintiff, therefore, filed the present suit in the Court of Civil Judge, Jodhpur on 26. 7. 1951 against the firm Jairoop Chunnilal through its partners defendants Nos. 1 to 3 for recovery of Rs. 6358-1 9 as principal and Rs. 2352-14-3 as interest, total Rs. 8711. The assignor of the debt viz. Ganeshmal was also impleaded as a defendant in the suit, and it was prayed that in case it is held that defendants Nos. 1 to 3 are not liable for the suit amount a decree for the same be passed against Ganeshmal. The defendants Nemichand, Mithalal and Ganeshmal did not appear inspite of service, and consequently they were proceeded against exparte. The appellant Chunnilal filed his written statement and denied the plaintiff's suit. He admitted that defendants Nos. 1 to 3 used to carry on business as 'adatiya' in partnership in gold and silver under the name. Firm Jairoop Chunnilal in S. 2001 and closed the same on Asad Sudi 15, Smt. 2002 However, he denied knowledge about Ganeshmal's doing any business through firm Jairoop Chunnilal and pleaded ignorance as to the amounts deposited by Ganeshmal and the resultant profits and losses in the alleged transactions of gold and silver. He denied that Ranulal had any authority as Munim to sign accounts on behalf of Firm Jairoop Chunnilal and that any amount was due to Ganeshmal from the said firm. He also pleaded that the account Ex. 1 cannot be the basis of the suit and in any case the suit is barred by limitation. He took certain other pleas but it is not necessary to refer to them as they are not being relied upon now. After recording the evidence produced by the parties, the learned Civil Judge, Jodhpur by his judgment dated 8 5-1958 decreed the plaintiff's claim for the principal sum Rs. 6358 1-9 and also awarded pendente lite and future interest on this amount, but rejected the plaintiff's claim for interest prior to the date of the suit. Aggrieved by the judgment and decree of the trial court Chunnilal filed appeal in the Court of District Judge, Jodhpur, and the plaintiff also filed cross-objection for interest upto the date of the suit. The learned District Judge dismissed the appeal as well as the cross-objection. Consequently, the defendant Chunnilal has come in second appeal to this Court, and the plaintiff has also filed cross-objection regarding interest upto the date of the suit. Learned counsel for the appellant has urged only the following points in support of the appeal - (1) The account Ex. 1 is a mere acknowledgement which cannot form the basis of the suit. (2) Ranulal, who has signed the account Ex. 1 had no authority to do so on behalf of the defendant firm Jairoop Chunnilal, and consequently the defendants Nos. 1 to 3 are not bound by the same. (3) The learned District Judge has erred in law in applying Art. 62 of the Marwar Limitation Act (which was in force at the relevant time ). Art. 89 is the only appropriate Article applicable to the facts and circumstances of the case, and since this Article prescribes a period of three years, the suit is beyond limitation, and must be dismissed as such. (4) The plaintiff has failed to prove that the defendant Ganeshmal transacted business in gold and silver in the agency of defendants Nos. 1 to 3, as a result of which the suit amount remained due to defendant No. 4 from defendants Nos. 1 to 3. (5) In any case the plaintiff has failed to prove that the Samwat Year used to change from Kartik Sudi 1, in the account books of defendants Nos. 1 to 3, and consequently the suit would be beyond limitation even if six years' period is applied. I would first take up points Nos 1 and 4 as in my opinion they can be conveniently disposed of together. The lower court has held that Ex. 1 is not an account stated inasmuch as no balance has been struck in it. This position is not contested by any of the parties. In Tarachand vs. Mst. Dhapu (1) it was held that - "striking of a balance is essential for a real "account stated" because unless that is done, it cannot be said that the defendant agreed to set off his payments towards the earlier items of the plaintiff or that he had admitted that a certain sum was due from him and to pay the same. " Learned counsel for the respondent, however, submits that there is an unconditional promise contained in Ex. 1 to pay the amount. It is stated therein that the amount due on the account will be paid in instalments. The contention of the learned counsel is that even though Ex. 1 is not an 'account stated' yet it is an acknowledgement containing an unconditional promise to pay, and, therefore, the suit can be based on it. In the alternative he has submitted that the plaintiff has not based his suit merely on Ex. 1 but has alleged in para No. 7 of the plaint that the cause of action arose when transactions took place between the defendant No. 4 Ganeshmal and the firm Jairoop Chunnilal from S. 2002 Srawan Bad 9 to S. 2006 Chet Sudi 7. In this connection he has invited my attention to issue No. 1, which reads as under - "1. Whether defendant No. 4 transacted the business of silver bars, gold Mohars and cash in the 'adat' of the firm of defendants Nos. 1 to 3 and Rs. 6352-1-9 remained due against defendants Nos. 1 to 3 in that business. " It is argued on behalf of the plaintiff respondent that the defendant had not raised any such specific plea in the written statement that the suit cannot be based on Ex. 1, and the only objection in this connection was that Ex. 1 was a mere acknowledgement and hence not admissible in evidence being unstamped, which was the subject matter of issue No. 7. I have considered the rival contentions of the parties. In Jeevraj vs. Lalchand - FB (2), it was held (per majority) that an acknowledgement if it implied a promise to pay can give rise to a fresh cause of action, and can be made the basis of a suit. It was observed that a mere acknowledgement in order to form the basis of a suit must be an agreement under which the defendant has to pay a particular sum of money to t|he plaintiff. A distinction was, however, brought out between an acknowledgement under sec. 19 of the Limitation Act 1908 which may be unilateral transaction and a document bilateral in nature. Bhandari, J. (Tyagi, J. , agreeing with him) observed as follows - "i do not mean to say that in all cases an unconditional acknowledgement could form the basis of the suit. As I have already pointed out in the opening part of my judgment that an acknowledgement under sec. 19 may be a unilateral act and such an acknowledgement may not be sufficient to form the basis of the suit. Unless there are bilateral acts which give rise to an agreement enforceable at law under the provisions of the Indian Contract Act, there can be no question of a unilateral transaction forming the basis of a suit. In the present case the document Ex. 1 undoubtedly evidences a unilateral act of the defendants Nos. 1 to 3. It is not a bilateral document. It is an account sent by the defendants Nos. 1 to 3 to Ganeshmal agreeing to pay what may be due. Ex. 1 does not contain a promise to pay any amount in express terms. It is only an acknowledgement by a unilateral act of the defendants and according to the majority view expressed in Jeevraj's case (supra), it cannot form the basis of the suit. However, while deciding issue No. 1 the trial court has found on the basis of the evidence of P. W. 1 Ganeshmal, P. W. 3 Kedarnath and P. W. 5 Ghan Shyam, and the previous accounts Ex. 6 and Ex. 7 corroborated by the letters Ex. 8 Ex. 10, Ex. 11, Ex. 13 and Ex. 14 to Ex. 17 that the defendant Ganeshmal did business of sale and purchase of gold and silver bars through the firm of the defendants Nos. 1 to 3 as a result of which a sum of Rs. 6358-1-9 remained outstanding against the defendants' firm Jairoop Chunnilal. This finding was not assailed before the learned District Judge, and all that was contended before him in this connection was that Ex. 1 was merely an acknowledgement. Even in this Court the learned counsel for the appellant made no attempt to show how the finding arrived at by the learned trial court that the amount of Rs. 6358-1-9 was due to Ganeshmal from defendants Nos. 1 to 3 is erroneous? The defendants Nos. 1 to 3 have not produced their account books. I am consequently of the opinion that the suit is not based on Ex. 1 alone and that the plaintiff has succeeded in proving that the defendant No. 4 Ganeshmal did business of sale and purchase of gold and silver bars through the agency of the defendants Nos. 1 to 3 as a result of which a sum of Rs. 6358-1-9 remained outstanding against the defendants Nos. 1 to 3.
(3.) THE next contention that Ranulal had no authority on behalf of defendants Nos. 1 to 3 to sign the account Ex. 1 involves a pure finding of fact based on pure appreciation of evidence. It is in the evidence of Ganeshmal, Shrigopal, Kedarnath and Jugalkishore that Ranulal was working as a Munim and Karinda at the firm of Jairoop Chunnilal. THE only argument advanced by the learned counsel for the appellant in this connection is that there is no evidence to show that Ranulal had executed similar other documents. In my opinion the contention raised on behalf of the appellant in this connection has no substance in view of the overwhelming evidence produced from the side of the plaintiff that Ranulal was acting as Munim and Karinda at the defendants' firm, and had authority to send the accounts, signed by him on their behalf. This brings me to the question of limitation. It has been strenuously argued on behalf of the appellant that Art. 89 of the Marwar Limitation Act which prescribes a period of three years applies in the present case. Art 89 reads as under - "89. By a principal against his agent for movable property received by the latter and not accounted for: Three Years When the account is, during the continuance of the agency, demanded and refused or, where no such demand is made, when the agency terminates. " It is submitted that the view of the learned District Judge that this Article applies only to a suit in which accounts have to be taken and since in the present case the accounts had already been rendered by the agent, this Article has no application, is erroneous. It is argued that the phrase movable property used in Art. 89 includes money. In support of his contention the learned counsel for the appellant has relied on Md. Amirul Islam vs. Md Abdul Hamid (3), Kashiram vs. Santokhbai (4), and Thomman Thresia vs. Pothen Chacko (5 ). On the other hand learned counsel for the respondent has placed strong reliance on Jasraj vs. Devichand (6) in support of his contention that Art. 89 has no application. It has also been argued on behalf of the respondent that the appropriate Article applicable to case is Art. 85, which runs as under - "85. For the balance due on a mutual open and current account where there have been reciprocal demands between the parties Six Years The close of the year in which the last item admitted or pro- ved is entered in the accounts such year to be computed as in the account. In the alternative he submits that even if the case is taken to be covered by Art. 62 the suit would he within limitation. It may be necessary to mention here that under the Marwar Limitation Act which governs the present case the limitation under Arts. 62 and 85 is six years, whereas the limitation under Art. 89 is three years and that accounts for the anxiety of the appellant to bring the case within the purview of Art. 89 so that he may succeed in defeating the plaintiff's claim on the ground of limitation. In Md. Amirul Islam vs. Md. Abdul Hamid (3) it was observed that the terra 'movable property' in Art. 89 includes money and therefore Art. 89 applies to the suit for the recovery of money received by the agent on behalf of the principal and not accounted for. Certain rulings were referred to in that case in support of the contention that Art. 89 is only applicable when the suit is for accounts. But the learned Judges of the Calcutta High Court observed that Art. 89 also applies to a claim for a balance of account, but there is no reason to suppose that it is limited only to suits for account. In Kashiram vs. Santokhbai (4) it was observed that from the language of Art. 89 it is manifest that its applicability is not confined to suits for accounts and that it is applicable for the recovery of any movable property which has been received by the agent and which has not been accounted for. In Thomman Thresia vs. Pothen Chacko (5) the plaintiff had entrusted to the defendant a sum of money for negotiating and obtaining for him a sale from 'k' and on settlement of terms of the sale the defendant was to pay the amount entrusted as an advance towards the sale consideration. The defendant failed to do the same and therefore the plaintiff took the sale from 'k' direct and paid the entire amount of consideration. Consequently, the plaintiff sued the defendant for recovery of the amount entrusted within three years from the date of execution of the sale deed in his favour. The question was whether the suit was barred by limitation ? It was held that the legal relationship between the plaintiff and defendant was one of principal and agent and not merely of two persons one of whom has received money belonging to the other, and, therefore Art. 62 did not apply. It was further held that the retention of the money by the defendant without accounting for it would be either neglect or misconduct on the part of the agent, and, therefore, Art. 90 of the Limitation Act was applicable. The learned Judge also observed that Art. 89 would also apply to such a case. The applicability of Art. 89 was opposed on the ground that the suit contemplated in the first column of this Article is a suit for movable property. This argument was repelled on the ground that the term 'movable property' would include money also. In conclusion the learned Judge held that the period of limitation would be the same whether Art. 89 or Art. 90 is applied. It may be observed that in this case there was no discussion on the point whether Art. 89 applied to suits for accounts only. ;