Jagat Narayan, J. - (1.) THIS is a second appeal by the plaintiff whose suit for recovery of money was decreed by the trial court was dismissed by the first appellate court.
(2.) THE case of the plaintiff was that he purchased from the defendant 300 gold mohars on Faguna Badi 11-12 Smt. 2002 deliverable on Fagun Sudi 6, at Rs. 83-12 per mohar, that the defendants were asked to deliver the mohars, but they failed to do so and that the plaintiff had accordingly to purchase the mohar in the open market on the date at Rs. 87/13- pes mohar from Ramjeewan Modi. THEy accordingly claimed a decree for a sum of Rs. 1218/12- as damages for breach of contract against the defendants. The defendants admitted the transaction of gold mohars. Their case however was that they had purchased 10 bars of silver from the plaintiff on Fagun Badi 10 which were to be delivered on Fagun Sudi 6 but the plaintiff declined to deliver them. The rate on which delivery was promised was Rs. 143/15/6 per 100 tolas. The defendants thereupon made a complaint to the Bullion Merchants Association, Jodhpur, of which both parties were members. The Association directed the defendants to carry forward both the gold and silver transactions to the next date for settlement namely Fagun Sudi 15. In accordance with this direction the defendants sold 300 mohars on Fagun Sudi 6 at Rs. 87/13- and purchased the same number of mohars of the next vaida of Fagun Sudi 15 at Rs. 87/4/ -. The plaintiff did not take delivery on the subsequent date and in accordance with the directions of the Bullion Merchants Association the mohars were sold in the account of the plaintiff of Suganmal Anandraj at Rs. 88/9 per mohar. Further in accordance with the direction of the Bullion Merchants Association the defendants purchased silver bars in the account of the plaintiff. On the transaction of silver there was loss which the plaintiff was liable to pay. If the two transactions were adjusted then a sum of Rs. 925/- would be due to the defendants from the plaintiff for the transactions settled on Fagun Sudi 5 and a further amount of Rs. 866/4/- for the transactions settled on Fagun Sudi 15. According to the defendants therefore a sum of Rs. 791/4/- was due to them from the plaintiff. It was pleaded that they had referred the case to the Association and the papers were pending with it. At first, it was suggested that the plaintiff was bound to abide by the decision of the Association and an issue was framed about it. But this plea was subsequently given up and it was admitted before me that there was no compulsory arbitration clause in the Rules of the Association at the time when the transactions in question took place. No replication was filed by the plaintiff to the allegations contained in the written statement. The trial court framed the following issues; - (1) Is the suit barred by limitation? (2) Are the defendants entitled to claim set off in regard to the transaction of silver in this suit without paying court-fees? (3) Did the Plaintiff fail to deliver gold mohars on the due date on a demand being made? (4) Did the plaintiff purchase 300 gold mohars at Rs. 87/13/- from Ramjeewan Modi? (5) Is the Plaintiff entitled to interest under a trade usage? (6) Is the suit not maintainable as paphrs with regard to the matters in dispute are pending with the Bullion Merchants Association? The plaintiff examined his Munim Sohanraj as his first witness. After he had been cross-examined for sometime, a question was put on behalf of the defendants to which objection was taken on behalf of the plaintiff. The court thereupon heard arguments on the point as to whether or not cross-examination on the particular point should be allowed. After hearing arguments he fixed 16. 5. 52 for orders and directed that Sohanraj should appear on the date. The defendants wanted to summon some records from the Bullion Merchants Association. This request was allowed. On the next date of hearing Sohanraj as well as Roopraj a representative of the Bullion Merchants Association were present. The presiding officer was, however, unable to take up the case. On the next date, Shoanraj did not appear. The court directed that a warrant of arrest should be issued to procure his attendance and asked the plaintiff to deposit the necessary process fee. The process fee was not deposited and on the next date of hearing, Sohanraj was absent. The plaintiff did not want to examine any other witness. The court accordingly closed the evidence of the plaintiff. The defendants also did not examine any witness. The result was that there was no admissible evidence on record. The trial court accordingly decided the case on the pleadings of the parties. As regards, the set off claimed in respect of the silver transaction, the trial court held that court-fee was payable on it and as the defendants did not pay court fee it was not decided as to whether or not any transaction in silver had taken place between the parties. On an interpretation of the written statement the learned Munsiff come to the finding that the allegation made in the plaint that a demand for delivery of Mohars on the due date was made was not specifically denied in the written statement, but was on the contrary impliedly admitted. On this finding, he decreed the suit of the plaintiff for a sun of Rs. 1218/12/. The defendants preferred an appeal against this decree. The learned District Judge held that the plaintiff had neither proved that he made a demand for delivery of Mohars nor had he proved that he actually purchased 300 gold Mohars from Ramjeewan Modi as alleged by him in the plaint. He was of the opinion that it could not be inferred from the written-statement that the 'defendants admitted that a demand for delivery of the Mohars was made. Further, he held that before any damages could be decreed in favour of the plaintiff, it was necessary for him to prove that he actually purchased the Mohars at a higher rate. Against this decree, the present second appeal has been filed. It is urged that the decree of the trial court was correct and the decree of the lower appellate court is erroneous. I find myself in agreement with the finding of the trial court that the fact that delivery of Mohars was demanded was not specifically denied in the written statement and was impliedly admitted. In para 30 of the plaint, it was mentioned that on a demand being made,the defendants did not deliver the Mohars on the due date and that the plaintiff purchased 300 gold Mohars at Rs. 17/13/- from Ramjeewan Modi and thereby incurred a loss of Rs. 1218/12/ -. This paragraph contains several facts which needed specific admission or denial. The reply of the defendants to this paragraph is that the allegations made in it are incorrect and are not admitted and that a detailed reply would be given in additional pleas. In the additional pleas, it was mentioned that the defendants were willing to deliver the Mohars, but it was not mentioned that no demand for the delivery of the Mohars was made. On the other hand, the implication from the allegations made in the written statement is that because the plaintiff did not deliver the 10 silver bars according to the contract into which he entered, the defendants made a complaint to the Association and the Association directed that both the transactions should be carried forward to the next date of settlement and so they were carried forward. On behalf of the respondents, it is argued that O. 8, R. 5 provides that the court may in its discretion require any fact admitted in the written statement to be proved otherwise than by such admission and as the learned Munsif framed an issue on the point as to whether a demand for delivery was made, it was incumbent on the plaintiff to produce evidence to prove it and on his failure to do so, his suit was liable to be dismissed. The rule referred to undoubtedly gives a discretion to the trial court, but that discretion can only be exercised where there is some reason to suspect that the admission is made collusively or to avoid a rule of public policy or where the defendant's failure to deny the allegation is due to ambiguous and unsatisfactory assertion in the plaint or where the defendant is taken by surprise or misunderstands the plaint. The trial Judge who framed the issue ultimately decided the case on the basis of pleadings. It is clear that before he framed an issue on the point, he did not apply his mind to the fact as to whether there was any ground for not accepting the admission made in the written statement expressly or by implication. In the present case, there is no reason why the written statement should not be given effect to. The lower appellate court accordingly erred in interpreting the written statement and in holding that the plaintiff should have proved by evidence that he made a demand. Further, it was not necessary for the plaintiff to prove that he purchased 300 gold Mohars from Ramjeewan Modi on the due date. All that was necessary for him to prove was the market rate of gold Mohars on the date. This market rate was admitted in the written statement to be Rs. 87/13/ - as was alleged by the plaintiff. It was argued on behalf of the defendants that the trial Court erred in holding that what was pleaded with regard to the silver transaction amounted to a plea of set off. It was contended that it was only an adjustment which had been pleaded. The case of Somraj vs. Jethmal (1) was cited. It was a case brought for the recovery of arrears of rent. The plea of the defendant in it was that fair rent having been fixed at a certain figure he was liable to pay rent only at that rate and that he actually paid more and had asked the plaintiff to adjust the excess paid by him against the arrears of rent claimed by the plaintiff and consequently the plaintiff's suit should be dismissed as nothing remained due from the defendant. In that case, the payments made by the defendant were towards arrears of rent. When the payments were made, the rate of rent was higher. That rate was reduced subsequently with effect from a back date so that more money was paid to the plaintiff than was due to him as rent. The payments which had been made were towards rent and the claim of the plaintiff was also for arrears of rent. There were thus special circumstances connecting the two debts which justified adjustment. In the present case there where two different transactions, one of delivery of gold Mohars by the defendants on payment of price at a certain rate and the other was for the delivery of silver by the plaintiff on payment at a certain rate, There is no allegation in the plaint that there was any previous agreement between the parties that the profits and losses occurring in the two transactions would be adjusted towards one another. The observations made in Somraj's case (1) should be confined to the peculiar facts of that case. What is adjustment is explained more fully in Punjab Electric Power Co. Ltd. vs. Suraj Kishan (2), which was cited in Somraj vs. Jethmal (1 ). It was observed - "with regard to this point, the learned counsel for the plaintiff respondent invited my attention to the law on the subject as set out in Leake on the Contracts at page 779. It is stated there - By common law, there is no right of set off between parties mutually indebted, in the absence of agreement to that effect. And the rule of equity follows the law, unless there are special circumstances connecting the debts, besides the mere fact of mutuality on which the relief can be founded. It is not suggested that the law is different in India in this respect. In the present case, it is not alleged that there was any agreement between the parties that the claims were to be adjusted as they are alleged to have been. The only point therefore, which requires consideration is whether there are any special circumstances connecting the debts which would justify the adjust ment. . . . . . . . . . . I am, therefore of opinion that the adjustment could not legally be made in the manner alleged by the defendant company without the consent of the plaintiff. " As has been pointed out above, it was not even alleged in the written statement that there was any agreement between the parties that profits and "losses on the two transactions would be adjusted towards one another. The two transactions are separate. They are both transactions of delivery of bullion on payment of price. It is not alleged by either party that there was no intention of taking delivery of the goods. There is, therefore, no special circumstance connecting the two debts, to justify adjustment without the consent of both parties. Next, it was argued that Art. 115 of the Limitation Act is applicable and not Art. 65. Under the Marwar Limitation Act, the period of limitation under Art. 115 was three years. It is argued on behalf of the defendants that Art. 65 is only applicable to contingent contracts which are referred to in sec. 31 of the Contract Act and that Art. l15 applies to cases of breach of contract, which fall under sec. 73 of the Contract Act. I am unable to agree with this contention. Art. 65 is applicable to cases of breach of contracts under sec. 73 also. The wordings of the two articles show that Art. 65 is the general article and Art. 115 is a residuary article. Art. 115 will apply to those cases where Art. 65 is not applicable. In V. M. Gany vs. Loong Chye (3), Art. 115 was applied to a case of breach of contract. Under the Limitation Act in force in British India, at that time the period of limitation under both the above articles was the same and it did not matter which article was applied. Art. 65 has not been referred to in the above case. It is therefore, of no help as it does not seek to distinguish between the two articles. It is general principle that if two articles are equally applicable to the facts of a cause, one which keeps cause of action alive for a longer period should be applied.
(3.) I accordingly allow the appeal, set aside the decree of the lower appellate court and decree the suit for Rs. 1218/12/-with proportionate costs throughout. The defendants shall bear their own costs throughout. Leave to file special appeal was sought particularly on the point as to whether or not the claim pleaded in the written statement amounted to an adjustment on which no court fee was payable. Leave is granted. .;