UNITED BREWERIES LTD. , v. D. C. SRINIVASA — 1988 DIGILAW 40 (KAR)

D. R. VITHAL RAO, J. ( 1 ) 1. This appeal by the plaintiff is preferred against the judgment and decree dated 16-12-1987 passed by the learned 18th Addll City civil Judge, Bangalore City in o. S. No. 10630/1981. The suit was for recovery of a sum of Rs. 46,405-69 ps. inclusive of interest being the balance due in respect of supply of beer by the plaintiff to the defendants. In this judgment, the appellant and the respondents will be referred to as the plaintiff and the defendants respectively. ( 2 ) ACCORDING to the case of the plaintiff, beer was last supplied by it to the defendants on 23-5-1978 and thereafter the defendants paid a sum of Rs. 1000/- on 21-12-1978 acknowledging the amount due by them to the plaintiff. Therefore, the suit filed on 7-12-1981 was quite well in time. ( 3 ) DEFENDANTS pleaded that they had discharged the entire claim long back and there was nothing due by them to the plaintiff and that the suit was barred by time as the same had not been filed within 3 years from the date of last supply of the beer. ( 4 ) IN this appeal the defendants - respondents are served with notice. At the stage of admission defendant No. 1 -respondent No. l has put in appearance through a counsel. Defendant No. 2 respondent No. 2 has remained absent. The records are also obtained. As the findings recorded against the defendants on issues-1 to 3 are not challenged by the defendants, the only question as to limitation arises for consideration. Hence, the appeal is admitted, and by consent of both the sides, it is taken up for final hearing. ( 5 ) ON the basis of the pleadings of the parties, the trial Court framed the following issues:1. Whether the plaintiff proves that the defendants are due to the suit claim?2. Whether the defendants prove that the amount due to the plaintiff in respect of all the purchases have been fully paid by them?3. Whether the plaintiff is entitled for the recovery of Rs. 46,405-69 ps. together with interest and costs from the defendants, jointly and severally?4. Whether the suit is barred by limitation?5. Whether the suit is not maintainable in law?6. WHETHER the plaintiff has prima fade cause of action? What decree or order? ( 6 ) 6. Whether the plaintiff is entitled for the recovery of Rs. 46,405-69 ps. together with interest and costs from the defendants, jointly and severally?4. Whether the suit is barred by limitation?5. Whether the suit is not maintainable in law?6. WHETHER the plaintiff has prima fade cause of action? What decree or order? ( 6 ) 6. The Trial Court held that the plaintiff proved that the defendants were due to pay the suit claim; that they, the defendants failed to prove the discharge pleaded by them; that the plaintiff was entitled to recover a sum of Rs. 46,405-69 ps. together with interest and costs from the defendants jointly and severally. However, on the question of limitation it came to the conclusion that the suit was governed by Art. 14 of the limitation Act, 1963; (the Act for short) as such it ought to have been filed within 3 years from the last date of supply of beer i. e. , on 23-5-1978, that as the suit was filed beyond 3 years from that date, it was barred by time. In view of the finding on issue No. 4, the trial court held that issues-5 and 6 did not arise for consideration. Consequently, the Trial court dismissed the suit. ( 7 ) 7. Having regard to the contentions urged on both sides, the points that arise for consideration are as follows:1) Whether the suit claim is governed by Art. 1 or 14 of the Act?2) Whether there is an acknowledgment of the suit claim by the defendants as per Sec. 19 of the Act? ( 8 ) POINTS-1 and 2 : Ex. P-1 which is a ledger extract shows that the plaintiff supplied the beer to the defendants from time to time. Defendants went on making payments to the plaintiff towards the price of the beer delivered some times more than the price of the beer delivered and some times less than that. Ultimately, they remained in arrears on the date when the balance was struck on 21-12-1978 they were due to pay to the plaintiff a sum of Rs. 30,414-69 ps. On the basis of these entries, it is contended that the account maintained was mutual open and current. Therefore, Art. 1 was attracted and the trial court was not right in holding that Art. 1 was not attracted. 30,414-69 ps. On the basis of these entries, it is contended that the account maintained was mutual open and current. Therefore, Art. 1 was attracted and the trial court was not right in holding that Art. 1 was not attracted. Art. 1 of the Schedule to the act is attracted where the account maintained between the parties is mutual open and current and where there have been reciprocal demands between the parties. It is pertinent to notice that as per Ex. P-1, the payments were made only towards the supply of beer. There was no other independent transaction in respect of which the payments were made by the defendants. It was in respect of the transaction of supply of beer only the payments were made. Therefore, there was no mutuality or reciprocity of dealings. The excess payments made by the defendants on certain occasions were nothing but advances paid towards the future supply of beer. Apart from the transaction of supply of beer, there were no independent transactions. Therefore, the liability arising out of advance payments was not independent of the contract of supply of beer and it related to and arose from the contract to supply beer. Therefore, the entries relating to the payments made by the defendants by themselves did not create any liability. . . . In an identical case, the Supreme Court while considering Article 115 of Jammu and Kashmir limitation Act similar to Article 1 of the act, has held that in such an account there is no mutuality (See-HINDUSTAN FOREST co. , v. LAL CHAND, AIR 1959 SC 1349 ). Therefore, it is not possible to up-hold the contention of the plaintiff that the account maintained was mutual open and current and therefore, Art. l of the Act was Attracted. ( 9 ) THE next contention is that in case art. 1 was not attracted, at any rate, as the transaction pertains to the supply of beer, article 14 of the Act was attracted. The suit was for recovery of the price of the goods sold and delivered. In the instant case, it is not the case of the plaintiff that there was any period agreed to for payment of the price of the beer sold and delivered to the defendants. Therefore, this is a case in which no period for payment was either fixed or agreed to. In the instant case, it is not the case of the plaintiff that there was any period agreed to for payment of the price of the beer sold and delivered to the defendants. Therefore, this is a case in which no period for payment was either fixed or agreed to. Thus, there is no doubt that Art. 14 of the Act was attracted because there was no fixed period of credit agreed upon by the parties for the price of the goods sold and delivered. In such a case, the limitation commences from the date of the delivery of the goods. Therefore, we have to take the date on which the beer was last sold and delivered. It was on 23-5-1978 the beer was last sold and delivered. Therefore, from 23-5-1978, the suit ought to have been filed within three years. However, it was filed beyond three years, ( 10 ) LEARNED Counsel for the plaintiff placing reliance on Ex. P- 10, P-10 (a), P-11, p-11 (a), P-5 and P-5 (a), contends that they amount to acknowledging the debt within the period of three years and from the date of the last acknowledgment, the suit is filed well within three years. It is contended that as there is a payment made and it is evidenced by writing, it amounts to acknowledgment. It is pertinent to notice that Ex P-10, P-10 (a), p-11, P-11 (a), P-5 and P-5 (a) are maintained by the plaintiff. Ex. P-10 is the rough cash book maintained by the plaintiff. Ex. P- 10 (a) relates to the entry in respect of a sum of rs. 1000/- paid by the defendants on 21-12-1978. It is not signed by the defendants or their authorised representative. Ex. P-11 is the cash book. Ex. P-ll (a) is the relevant entry for payment of Rs. 1000/- made on 21-11-1978. This is also not signed by the defendants or their representatives. Ex. P-5 (a) is a carbon copy of the receipt issued by the plaintiff for having received a sum of Rs. 1000/- on 21-10-1978. This receipt is also not signed by the defendants or their representatives. Thus it is clear that there is no acknowledgment of the payment of the amount of Rs. 1000/-made on 21st December, 1978 or on the other dates of Ex. P-5 (a) and ex. P-11 (a) by the defendants. Therefore, ex. 1000/- on 21-10-1978. This receipt is also not signed by the defendants or their representatives. Thus it is clear that there is no acknowledgment of the payment of the amount of Rs. 1000/-made on 21st December, 1978 or on the other dates of Ex. P-5 (a) and ex. P-11 (a) by the defendants. Therefore, ex. P- 10 (a), P-11 (a) and P-5 (a) cannot at all be considered as a acknowledgments of the payments made by the defendants. Apart from these documents, there is no other document produced by the plaintiff to show that the defendants acknowledged the debt or acknowledged the payment of Rs. 1000/- on 21-12-1978 or subsequent thereto. As far as Ex. P-5 (a) and Ex. P-ll (a) are concerned apart from the fact that they are not acknowledgments, they are beyond the period of three years as the suit was filed on 7-12-1981. The scope of Section 20 of the limitation Act, 1908 (for short 'old Act') is considered by the Supreme Court in SANT lal v KAMALA PRASAD (A. I. R. 1951 s. C 471 ). Therein, it has been held that apart from the payment, there must be an acknowledgment in writing of the payment by the person making the payment to attract section of the Old Act which is equivalent to section 19 of the Act. A Division Bench of this Court has also considered the scope of section 19 of the Act in KAMALAMMA v ramabhadra GUPTA (ILR 1988 Kar. Page 20 ). It has been held in Kamalamma's case that a mere payment on account of a debt or of interest before the expiration of the prescribed period of limitation by the person liable to pay the debt is not sufficient to extend the period of limitation under section 19 of the Act, it must be followed by an acknowledgment of the payment in writing and signed by the person making the payment. ( 11 ) THAT being so, it is not possible to hold that the plaintiff has proved the acknowledgment as required by Section 19 of the Act so as to save the suit which is barred by limitation. Accordingly, the points-1 and 2 raised for determination are answered against the plaintiff. ( 12 ) FOR the reasons stated above, appeal is liable to be dismissed. It is accordingly dismissed. Accordingly, the points-1 and 2 raised for determination are answered against the plaintiff. ( 12 ) FOR the reasons stated above, appeal is liable to be dismissed. It is accordingly dismissed. As the appellant fails on the point of limitation, though it has proved the claim, we do not consider that this is a fit case for awarding costs. Hence, there will no order as to costs in this appeal. Appeal dismissed. --- *** --- .