JUDGMENT Lahiri, J. - This appeal is at the instance of the Defendant in suit for recovery of the price of goods sold on credit and (sic) in the account of books of the Plaintiffs. The case of the Plaintiffs is that they are manufacturers of utensils and the (sic) used to buy utensils from the Plaintiffs for the purpose carrying on his business in the towns of Purnea, Kissenganj (sic) Supole (in the district of Bhagalpore); the account of the (sic) purchased by the Defendant for the three karbars at the aforesaid places was kept separately by the Plaintiffs according the Plaintiffs' financial year, which commenced on the Bijaya (sic) day of each year and ran up to the proceeding day of the following year. The Defendant used to make payments from me to time, which were entered on the credit side of the Plaintiffs account-book. After deducting the payments, the (sic) is liable for a sum of Rs. 6,766-4 for the Kissenganj business from Kartik 24, 1346 B.S., up to Agrahayan 21, 1349 (sic) as detailed in Schedule (ka) of the plaint; for a sum of Rs. 586-7-5 for the Purnea business from Agrahayan 22, 346 B.S., up to Agrahdyan 21, 1349 B.S., as detailed in Schedule (kha) and for a sum of Rs. 68-13-10 for the Supole business from Magh 2, 1349 B.S., up to Agrahdyan 21, 1349 B.S., as (sic) in Schedule (ga). The total amount due for the price of (sic) thus comes up to Rs. 7,421-8-15, to which the Plaintiffs added a claim for interest during the pendency of the suit and also for the future period at the rate of Rs. 12 per cent per annum. The suit was instituted on December 18, 1942, corresponding to Poush 3, 1349 B.S. 2. The defence of the Defendant, so far as it is material for the purposes of the present appeal, is that the claim of the Plaintiffs (sic) to the month of Agrahayan, 1346 B.S., is barred by imitation; that there was never any adjustment of accounts by reference to the accounts between the Plaintiffs and the Defendant, that the Defendant had no connection with the business at Purnea and with regard to the business at Supole, the Defendant was merely a share-holder or partner and the suit was bad on account of the non-joinder of the other partner. The statement of accounts given in the schedule of the plaint was challenged as false and incorrect; besides the small amounts not credited in the Plaintiffs' accounts, the Defendant alleged that he had paid Rs. 4,200 on Agrahayan 1, 1348, and instead of crediting that amount, the Plaintiffs had credited only a small amount of Rs. 200 on Agrahayan 2, 1348 B.S. 3. The learned Subordinate Judge, who tried the case, overruled the points raised by the defence and made a decree for a sum of Rs. 5,628-13-3 and a further sum of Rs. 352 as damages for wrongful withholding of the Plaintiffs' money at the rate of 6 1/4 per cent, per annum for the period in suit. 4. Against this decree the Defendant has preferred this (sic) and Mr. Sanyal appearing in support of the appeal has urged to following points: (i) As there was no contract for payment of interest, t learned Subordinate Judge was wrong in awarding damages equitable compensation. (ii) The sum of Rs. 4,200 paid by the Defendant Agradayan 1, 1348, was not credited in the Plaintiffs' account books and the Plaintiffs wrongfully credited only a small sum Rs. 200. (iii) With regard to the Purnea and Supole karbars, the suit is liable to be dismissed, because in the former business the Defendant had no interest and in the latter the Defendant had partner named Bhabani Prasad Ray, who was not impleaded (sic) the suit. (iv) The Plaintiffs' claim is barred by limitation for the period prior to three years from the institution of the suit. 5. On the first point Mr. Sanyal argues that, in view of the finding arrived at by the trial Court to the effect that there was no contract for payment of interest, it was wrong in awarding interest by way of compensation. The Subordinate Judge says-- Admittedly there was no contract for paying interest. The learned pleaded for the Plaintiffs frankly admitted that it was compensation or only an equitable damage that was claimed. 6. From the plaint it appears that interest was claimed "during "the pendency of the suit and also for the future period". 1 the decree that was drawn up, a total sum of Rs. The learned pleaded for the Plaintiffs frankly admitted that it was compensation or only an equitable damage that was claimed. 6. From the plaint it appears that interest was claimed "during "the pendency of the suit and also for the future period". 1 the decree that was drawn up, a total sum of Rs. 352 was awarded as interest and no interest was decreed either for the period before the institution of the suit or for the future period The case, therefore, clearly comes u/s 34, CPC and the argument of the Appellant on this point appears to be misconceived. Whether or not there was any contract for payment of interest, the court had jurisdiction to award interest pendente lite u/s 34. Mr. Dhar, appearing for the Plaintiffs, invited our attention to Section 61(2)(a) of the Sale of Goods Act, which authorises the court to award interest on the prices of goods sold in its discretion, even without any contract and also to certain bills sent by the Plaintiffs to the Defendant in which there is an entry to the effect that, if the bill is not paid within thirty days, interest will be charged at the rate of Rs. 12 per cent, per annum. In our judgment, the entire discussion, is irrelevant, in view of the nature of the Plaintiffs' claim on this head and the provisions of Section 34, Civil Procedure Code. 7. The amount of Rs. 352, which has been awarded by the (sic) Subordinate Judge as equitable compensation, could be (sic) by him as interest in the exercise of his discretion u/s 34 of the Code and we see no reason for interfering with that (sic). 8. The second point raised by Mr. Sanyal is also without any substance. As this is a plea of payment, the onus of proving it is upon the Defendant. The Plaintiffs have produced their books of account to show that the Defendant paid only a sum of Rs. 200, which was credited to the Defendant on Agrahdyan 2, (sic). As against this, the Defendant has only adduced oral evidence to show that he paid Rs. 4,200 and not Rs. 200. P.W. 1 (the Defendant) says that Narayan (Plaintiff No. 2) went Burdwan on Agrahdyan 1, 1348 and took payment of Rs. 4,200 on account of Kissenganj business. 200, which was credited to the Defendant on Agrahdyan 2, (sic). As against this, the Defendant has only adduced oral evidence to show that he paid Rs. 4,200 and not Rs. 200. P.W. 1 (the Defendant) says that Narayan (Plaintiff No. 2) went Burdwan on Agrahdyan 1, 1348 and took payment of Rs. 4,200 on account of Kissenganj business. In cross-examination, he admits that he did not demand any receipt from Narayan for this amount, nor did he inform his Kissenganj Officers about the payment, nor did he have the amount adjusted entered in the Kissenganj books at that time. He further says at he made the entry of payment in the month of A Ashwin following; but the Defendant does not produce his books of (sic) to show that this amount of Rs. 4,200 was entered in the (sic) of Ashwin as alleged by him. Upon this state (sic) the evidence, we are not inclined to place any reliance upon the oral evidence of the Defendant that he paid Rs. 4,200. 9. With regard to the Purnea business, Mr. Sanyal has relied upon Exs. 1 to 1(8), notices issued by the income tax officer upon Nanitosh Chakrabarti and Adityanarayan Chakrabarti, eiither and son, in 1942-1944 as dealers in brassware, at Purnea and also upon Ex. H the assessment order of 1942-43, for the purpose of his argument that it was Adityanarayan and Nanitosh Chakrabarti who were carrying on the business at Purnea. Narayan Chandra Das (Plaintiff No. 2) has stated in his evidence that the firm at Purnea stood in the name of Aditya. In 1345 the Plaintiffs declined to supply goods in the benami of Aditya and so the Defendant agreed to have his name reinstated (sic) proprietor of that karbdr. The account-books produced by the Plaintiffs show that before 1345 there was no account in the same of the Defendant, Aghore and from 1345 an account is started in the name of Aghore. For 1345 and the following (sic), Aghore and Adityanarayan are shown as having parallel Accounts in the Plaintiffs' business. The account of Aghore for Rs. 345 B.S. shows that a sum of Rs. 498-11-5 gds. was brought forward on the debit side from 1345 B.S., but the account of Rs. 345 B.S. standing in the name of Aghore shows that nothing was brought forward from 1344. The account of Aghore for Rs. 345 B.S. shows that a sum of Rs. 498-11-5 gds. was brought forward on the debit side from 1345 B.S., but the account of Rs. 345 B.S. standing in the name of Aghore shows that nothing was brought forward from 1344. So it is clear that, so far as the claim in the present suit is concerned, the Plaintiffs have entirely based their case upon Aghore's own account standing his own name and no part of it has any relation to the paral account kept in Adityanarayan's name. In these circumstance it is difficult to realise how any question of benami arises respect of this part of the claim. The income tax notices a the assessment order undoubtedly show that Adityanarayan us to carry on business in brassware at Purnea; the Plaintiff account-books also prove that fact; but this does not mean the the Defendant did not carry on business with the Plaintiffs our judgment, the Defendant was deposing falsely when stated in his evidence that he had no connection with, (sic) utensil business at Purnea city. He was also fighting with shadow in attempting to displace the finding of the learn Subordinate Judge that, in respect of the Purnea business Adityanarayan was a benamdar of the Defendant Aghore Adityanarayan might or might not have been a benamdar Aghore before 1345; but, as no part of the Plaintiffs' claim respect of the Purnea business goes beyond 1345, the question benami is wholly irrelevant. We may, however, observe passing that in Ex. 11Z(4), a letter written by Adityanarayan the Plaintiffs, it was stated that the shop owned by Adityanarays was identical with the shop owned by the Defendant Aghor Ex. D, a postal acknowledgment, shows that a sum of Rs. (sic) was sent by Adityanarayan by insured post was received (sic) Warayan Chandra Das on January 21, 1940 and the account books filed by the Plaintiffs show that this sum was credited, no in Adityanarayan's account of 1346, but in Aghore Nath account on Magh 7, 1346. From these documents an inference is reasonable that so far as the Plaintiffs are concerned (sic) Aghore and Adityanarayan are one and the same person. 10. Turning to the Supole business, we find from the Plaintiff; account-books that the account runs in the name of Aghore (sic) Ray (the Defendant) and also Bhawani Prasad Ray. From these documents an inference is reasonable that so far as the Plaintiffs are concerned (sic) Aghore and Adityanarayan are one and the same person. 10. Turning to the Supole business, we find from the Plaintiff; account-books that the account runs in the name of Aghore (sic) Ray (the Defendant) and also Bhawani Prasad Ray. From the fact, the learned advocate for the Defendant Aghore argued the the non-joinder of the co-partner Bhawaniprasad is fatal to the Plaintiffs' claim. We have not been able to appreciate the argument, because under the Indian Partnership Act Section 25 every partner is jointly and severally liable for all acts of the firm done while he is a partner. Moreover, the learned Subordinate Judge has found that it was the Defendant who use to place orders for the Supole business and pay prices. Therefore the Defendant is personally liable on this account. 11. The point which deserves serious consideration in the present appeal is the question of limitation. As already stated, the suit was instituted on Poush 3, 1349, corresponding to December 18 1942. A considerable part of the Plaintiffs' claim is beyond three years from that date; for example, with regard to the Kissengan business, it appears that a sum of Rs. 3,545-10-15 gds. is brought forward from 1345 B.S. and before Poush 3, 1346 B.S., a sum of Rs. 5,176-9-10 gds. is shown as the Defendant's total liability; similarly, with regard to the Purnea business a sum of Rs. 498-11-5gds. is brought forward from 1345 and a sum of Rs. 1,334-13-12 gds. is shown as the Defendant's total liability before Poush 3, 1346 and with regard to the Supole business an -mount of Rs. 31-10-5 is shown as the Defendant's liability prior to Poush 3, 1346. 12. An examination of the account-books filed by the Plaintiffs shows that at the beginning of each financial year (i.e., the Bijaya (sic) day) the outstanding liability of the previous year is brought forward and added to the liability of the current year and at the end of each financial year, the total payment made during the year is deducted from the total liability of that year and a balance is struck. The question that arises is what is the starting point of limitation? Unfortunately this part of the case has not been properly decided by the learned Subordinate Judge. The question that arises is what is the starting point of limitation? Unfortunately this part of the case has not been properly decided by the learned Subordinate Judge. From the judgment we find that he disposed of the questions of limitation on two grounds: (a) A long series of letters shows that the Defendant made payments from time to time and admitted the balance and reference is made to Ex. 1Z(5), which is a letter, dated Magh 17, 1348. This letter merely shows that on that date the Defendant sent an amount of Rs. 200 and requested the Plaintiffs to credit it to his account. It is not clear whether the learned Subordinate fudge wanted to rely upon this letter as an acknowledgment of liability u/s 19 or as payment on account of a debt u/s 20 of the Indian Limitation Act. This point, however, was not raised in the plaint. (b) The second ground given by the Subordinate Judge is that the schedule to the plaint would show that the Plaintiffs credited the amounts in course of regular business and each payment reduced the debts standing on that date by that amount. "It was a regular running concern." If this observation means that wherever there is a running account limitation would not begin to run it is wrong. In order to suspend the operation of 'the law of limitation a running account must be a "mutual, "open and current account" within the meaning of Article 85 of the Indian Limitation Act. The requirements of Article 85 have been elaborately discussed by Sir George Rankin in the Tea Financing Syndicate Ltd. v. Chandrakamal Bezbaruah ILR (1930) Cal. 649, where it has been pointed out that an account is open when no balance is struck and though struck is not accepted or acknowledged to be correct by the parties concerned; an account is current when it has been going on as a continuous account between the parties and an account is mutual when there are transactions on (sic) side creating independent obligations on the other and (sic) merely transactions which create obligations on one side, those the other being merely complete or partial discharges of (sic) obligations. In the case of Bijoy Kumar Bhattacharjee v. (sic) under the name and style of Satish Chandra Nandi (1936) 64 C.L.J. 513 another division Bench of this Court interpreted the decision in the (sic) Financing Syndicate's case (supra) and held that where on person sells goods to another from time to time and the buy goes on making payments from time to time, there is only single contractual relationship between the parties and the test t mutuality is not satisfied. The seller has demands against the buyer for each item sold, but the buyer can have no demand against the seller and the case is not one of reciprocal demand which is an essential requirement of Article 85 of the India Limitation Act. Once a case of this description goes out t Article 85, it comes under Article 52, which provides that, in a suit for the price of goods sold and delivered, where no fixed period of credit is agreed upon the period of limitation is three year from the date of the delivery of goods. If this Article were to bi applied to the facts of the present case, the claim of the Plaintiff in respect of the prices of goods sold and delivered prior to three years from Poush 3, 1349 (when the suit was instituted) would be barred by limitation, unless, of course, there is a fresh stand u/s 19 or 20. 13. In the case of Atmaram Vinayak Kirtiiar v. Lalji Lakhamd ILR (1940) Bom. 127 Beaumont C.J. held that, in a case of sale of goods on credit, the mere fact that the buyer goes on making payment from time to time on account without any final adjustment does not alter the nature of the Plaintiff's claim, which is in essence a claim for the recovery of price of goods sold on credit and the court is bound to apply Article 52 to deliveries which took place more than three years before the filing of the suit. In this case, the Division Bench of the Bombay High Court dissented from the view expressed by Mulla J. in Najan Ahmed Haji Ali Vs. Salemahomed Peermahomed, AIR 1923 Bom 113 . In (Firm) Puttu Lal Kunji Lal Vs. (Firm) B. Jagannath, AIR 1935 All 53 . In this case, the Division Bench of the Bombay High Court dissented from the view expressed by Mulla J. in Najan Ahmed Haji Ali Vs. Salemahomed Peermahomed, AIR 1923 Bom 113 . In (Firm) Puttu Lal Kunji Lal Vs. (Firm) B. Jagannath, AIR 1935 All 53 . Sulaimaa C.J. and Bajpai J. took the same view and in AIR 1939 307 (Lahore) a single Judge of the Lahore High Court also followed the same principle. The result of all these authorities is that Article 52 will apply if the account is merely open and current without being mutual and the starting point of limitation will be three years from the date of each delivery. The position, however, will be entirely different if the element of mutuality is present, in which case the appropriate Article will be Article 85, To prove that the account between the parties to the present (sic) was not only open and current but also mutual Mr. har has invited our attention to the entry dated Chaitra 5, 1346, the Kissenganj karbar, which shows that an amount of Rs. 134-4 was credited on that date. The learned Subordinate Judge has found that this sum represented the price of broken Sensils sold by the Defendant to the Plaintiffs. In the account-books filed by the Plaintiffs there is an account of sale and purchase of khut (broken utensils) which shows that the Defendant used to sell broken utensils to the Plaintiffs. If that (sic) so, it can be said that each party was selling goods to the (sic) to be paid for by the other and there were independent transactions creating independent and reciprocal demands. In such a case the test of mutuality will be satisfied and Article 85 (sic) be attracted. But the difficulty in the Plaintiffs' way is hat the plaint was not framed on this basis and the evidence was not also considered by the lower court, on that footing. 14. The only way in which the Plaintiffs sought to avoid the bar it limitation in the plaint is indicated in para. But the difficulty in the Plaintiffs' way is hat the plaint was not framed on this basis and the evidence was not also considered by the lower court, on that footing. 14. The only way in which the Plaintiffs sought to avoid the bar it limitation in the plaint is indicated in para. 8, where the following allegations are made: (i) With regard to the Kissenganj business, the Plaintiffs lave appropriated all the payments towards the dues of the Defendant up to Poush 26, 1346 and the Defendant is liable for the prices of all the goods sold on and from Magh 4, 1346, corresponding to January, 18, 1940. (ii) With regard to the Purnea business, the Plaintiffs have appropriated the payments made by the Defendant towards the Defendant's dues up to Chaitra 15, 1346 and the Defendant is liable for the prices of goods sold on and from Baisakh 15, 1347, corresponding to April 28, 1940. (iii) With regard to the Supole business, the Plaintiffs have appropriated the payments towards all the dues up to Chaitra 17, 1346, corresponding, to March 30, 1940 and the Defendant is liable for the prices of all goods sold thereafter. 15. If these allegations in the plaint are substantiated, the Plaintiffs will undoubtedly succeed in avoiding the bar of limitation. Here again the learned Subordinate Judge does not appear to have considered the case properly nor has he arrived at necessary findings. 16. The law of appropriation of payments made by a debtor as enacted in Sections 59 and 60 of the Indian Contract Act provides that where the debtor has omitted to intimate and there are no other circumstances to indicate to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him, whether its recovery is or is not barred by the law of limitation. The court has, therefore, to find out whether the Defendant the present case intimated and whether there are circumstance in the present case to indicate to which debt the payments mat were to be applied. Under the law the debtor has the option appropriation and if he fails to exercise that option, (sic) creditor may exercise it. The court has, therefore, to find out whether the Defendant the present case intimated and whether there are circumstance in the present case to indicate to which debt the payments mat were to be applied. Under the law the debtor has the option appropriation and if he fails to exercise that option, (sic) creditor may exercise it. In the case before us, there is (sic) additional difficulty which confronts the Plaintiffs, because the account-books filed by them show that the appropriation (sic) made by them at the end of each financial year against the total liability of that year and not against any particular (sic) of liability or portion of liability us alleged in para. 8 of the plaint. The question, therefore, arises whether the Plaintiff who have once appropriated the payments in one way in their account-books, had the right to appropriate it in another way (sic) their plaint. Mr. Dhar, appearing for the Plaintiffs, has argued,--and we are indebted to him for the argument--the creditor's right of appropriation is not extinguished till he has communicated it to the debtor and Mr. Dhar has invited on attention to a passage in Chitty on Contracts, which exactly applies to the facts of the present case. That passage runs as follows: An entry in the creditor's books applying the payment to a particular debt does not constitute an election which will preclude the creditor from afterwards applying it to another debt unless the entry has been communicated to the debtor once the election is made and communicated to the debtor it is irrevocable. 17. Chitty on. Contracts (20th Ed.), p. 280. 18. This being the law, the Plaintiffs will have the right to appropriate the payments in a different manner in their plaint, provided they have not in the meantime communicated the entry in their account-books to the Defendant. There is some evidence on the record to show that adjustment of accounts used to take place by exchange of letters. If, in the course of this correspondence, the Plaintiffs communicated the mode of appropriation to the Defendant, the application of the payments as shown in the account-books became irrevocable. This question of fact has, therefore, to be determined by the Subordinate Judge in respect of each of the three karbars. 19. If, in the course of this correspondence, the Plaintiffs communicated the mode of appropriation to the Defendant, the application of the payments as shown in the account-books became irrevocable. This question of fact has, therefore, to be determined by the Subordinate Judge in respect of each of the three karbars. 19. The result of our decision, therefore, is that the judgment and decree of the court below will be set aside and the suit will be remanded to the trial court for a proper decision on the question of limitation only. The decision on all other points is affirmed. The learned Subordinate Judge will consider-- (1) Whether, in the circumstances of the case, the Plaintiffs are entitled to the benefit of Section 19 or 20 of the Indian Limitation Act in respect of any or all the karbars. (2) Whether Article 52 or 85 of the Limitation Act will apply to the facts of the case. (3) Whether the right of appropriation as alleged in para. 8 f the plaint is available to the Plaintiffs. 20. As the first two points indicated above have not been alleged in the plaint, the Plaintiffs will be given the liberty to amend heir plaint and thereupon, the trial will proceed according to aw in the light of the observations contained in this judgment, arties will be at liberty to adduce such further evidence as they nay desire to produce in court only on the question of limitation. 21. As the remand has been necessitated on account of the Plaintiffs' failure to allege and prove material facts, we make no order as to costs of this Court. The costs of the trial court before and after remand will abide the result. Das, J. 22. I agree.