Civil Appeal No 161 of 1955
Appeal from the judgment and decree dated 4th Jeth 2011 of the Jammu and Kashmir High Court in Appeal No 1 of 2009 arising out of the judgment and decree dated the 2nd Magh 2008 of the said High Court in original suit No 40 of 2007
SK Kapur and N H Hingorani for the appellant
Bhawani Lal and K P Gupta for the respondents
August 19
The Judgment of the Court was delivered by SARKAR J
This appeal arises out of a suit filed in the High Court of Jammu and Kashmir for recovery of price of goods sold and delivered
The only point involved in it is whether the suit was governed by article 115 of the Jammu and Kashmir Limitation Act
The courts below have held and this has not been disputed in this appeal that if that article did not apply the suit would fail on the ground of limitation
Sometime in November 1946 the parties entered into an agreement in writing for the supply by the sellers the respondents to the buyer the appellant of 5000 maunds of maize 500 maunds of wheat and 100 maunds of Dal at the rates and times specified
The agreement stated that on the date it had been made the buyer had paid to the sellers Rs 3000 and had agreed to pay a further sum of Rs 10000 within ten or twelve days as advance and the balance due for the price of goods delivered after the expiry of every month
It is admitted that the said sum of Rs 10000 was later paid by the buyer to the sellers
565 Various quantities of goods were thereafter delivered by the sellers to the buyer and though such deliveries had not been made strictly at the times specified in the contract they had been accepted by the buyer
The buyer in its turn made various payments towards the price of the goods delivered but not month by month and had not further paid it in full
The last delivery of goods was made on June 23 1947 and the suit was brought on October 10 1950 for the balance of the price due
The learned Judge of the High Court who heard the suit held that article 115 had no application and dismissed the suit as barred by limitation
The sellers went up in appeal which was heard by two other learned Judges of the High Court
The learned Judges of the appellate bench of the High Court held that article 115 of the Jammu  Kashmir Limitation Act applied and the suit was not barred
They thereupon allowed the appeal and passed a decree in favour of the sellers
The buyer has now come up in appeal to this Court
Article 115 of the Jammu and Kashmir Limitation Act which is in the same terms as article 85 of the Indian Limitation Act except as to the period of limitation is set out below Description of suit Period of Limitation Time from which period begins to run For the balance due Six years The close of the on a mutual open and which the last current account wh item admitted or ere there have been proved is entered reciprocal demands in the account between the parties such year to be computed as in the account
If the article applied the suit would be clearly within time as the last item found to have been entered in the account was on June 23 1947
The only question argued at the bar is whether the account between the parties was mutual
The question what is a mutual account has been considered by the courts frequently and the test to determine it is well settled
The case of the Tea Financing Syndicate Ltd vs Chandrakamal Bezbaruah 1 may be referred to
There a company had been 1 Cal 649
72 566 advancing monies by way of loans to the proprietor of a tea estate and the proprietor had been sending tea to the company for sale and realisation of the price
In a suit brought by the company against the proprietor of the tea estate for recovery of the balance of the advances made after giving credit for the price realised from the sale of tea the question arose as to whether the case was one of reciprocal demands resulting in the account between the parties being mutual so as to be governed by article 85 of the Indian Limitation Act
Rankin CJ laid down at p 668 the test to be applied for deciding the question in these words  There can I think be no doubt that the requirement of reciprocal demands involves as all the Indian cases have decided following Halloway ACJ transactions on each side creating independent obligations on the other and not merely transactions which create obligations on one side those on the other being merely complete or partial discharges of such obligations
It is further clear that goods as well as money may be sent by way of payment
We have therefore to see whether under the deed the tea sent by the defendant to the plaintiff for sale was sent merely by way of discharge of the defendant s debt or whether it was sent in the course of dealings designed to create a credit to the defendant as the owner of the tea sold which credit when brought into the account would operate by way of set off to reduce the defendant s liability
 The observation of Rankin CJ has never been dissented from in our courts and we think it lays down the law correctly
The learned Judges of the appellate bench of the High Court also appear to have applied the same test as that laid down by Rankin CJ They however came to the conclusion that the account between  the parties was mutual for the following reasons  The point then reduces itself to the fact that the defendant company had advanced a certain amount of money to the plaintiffs for the supply of grains
This excludes the question of monthly 567 payments being made to the plaintiffs
The plaintiffs having received a certain amount of money they became debtors to the defendant company to this extent and when the supplies exceeded Rs 13000 the defendant company became debtors to the plaintiff and later on when again the plaintiff s supplies exceeded the amount paid to them the defendants again became the debtors
This would show that there were reciprocity of dealings and transactions on each side creating independent obligations on the other The reasoning is clearly erroneous
On the facts stated by the learned Judges there was no reciprocity of dealings there were no independent obligations
What in fact had happened was that the sellers had undertaken to make delivery of goods and the buyer had agreed to pay for them and had in part made the payment in advance
There can be no question that in so far as the payments had been made after the goods had been delivered they had been made towards the price due
Such payments were in discharge of the obligation created in the buyer by the deliveries made to it to pay the price of the goods delivered and did not create any obligation on the sellers in favour of the buyer
The learned Judges do not appear to have taken a contrary view of the result of these payments
The learned Judges however held that the payment of Rs 13000 by the buyer in advance before delivery had started made the sellers the debtor of the buyer and had created an obligation on the sellers in favour of the buyer
This apparently was the reason which led them to the view that there were reciprocal demands and that the transactions had created independent obligations on each of the parties
This view is unfounded
The sum of Rs 13000 had been paid as and by way of advance payment of price of goods to be delivered
It was paid in discharge of obligations to arise under the contract It was paid under the terms of the contract which was to buy goods and pay for them
It did not itself create any obligation on the sellers in favour of the buyer it was not intended to be and did not amount to an independent transac 568 tion detached from the rest of the contract
The sellers were under an obligation to deliver the goods but that obligation arose from the contract and not from the payment of the advance alone
If the sellers had failed to deliver goods they would have been liable to refund the monies advanced on account of the price and might also have been liable in damages but such liability would then have arisen from the contract and not from the fact of the advances having been made
Apart from such failure the buyer could not recover the monies paid in advance
No question has however been raised as to any default on the part of the sellers to deliver goods
This case therefore involved no reciprocity of demands
Article 115 of the Jammu and Kashmir Limitation Act cannot be applied to the suit
The learned Judges appear also to have taken the view that since the goods were not delivered at the times fixed in the contract and the prices due were not paid at the end of the months the parties clearly indicated their intention not to abide by the contract
We are unable to agree with this view
Such conduct only indicated that the parties had extended the time fixed under the contract for delivery of the goods and payment of price leaving the contract otherwise unaffected
The learned Judges also observed that the contract did not provide how the amount advanced was to be adjusted
But it seems clear that when the contract provided that the advance was towards the price to become due as the learned Judges themselves held it followed by necessary implication that the advance had to be adjusted against the price when it became due
So there was a provision in the contract for adjusting the advance
We think it fit also to observe that it is somewhat curious that any question as to the application of article 115 was allowed to be raised
The applicability of that article depends on special facts
No such facts appear in the plaint
There is no hint there that the account was mutual
We feel sure that if the attention of the learned Judges of the High Court had been 569 drawn to this aspect of the matter they would not have permitted any question as to article 115 being raised and the parties would have saved considerable costs thereby
We therefore come to the conclusion that the appeal must be allowed
The judgment and I order of the learned Judges of the appellate bench of the High Court are set aside and those of the learned Single Judge of the High Court are restored
The appellant will be entitled to the costs in this Court and of the hearing of the appeal before the High Court
Appeal allowed


Summary:
In a double member Parliamentary constituency one seat was reserved for the scheduled tribes and the other was general
Four persons filed their nominations for the election G 1 and G 2 for the general seat and S1 and S2 for the reserved seat
At the polls the number of votes received by the candidates were in the following order S1 S2 G1 and G2
In accordance with the provisions of section 544 of the Representation of the People Act 1951 S1 was declared elected to the reserved seat and S2 who had received the largest number of votes out of the remaining candidates was declared elected to the general seat
G1 filed an election petition for a declaration that the election of S2 was void and for a further declaration that he had himself been duly elected to the general seat
The petition was based on three grounds viz i that upon a proper interpretation Of section 544 a candidate who had filed his nomination for the reserved seat could not be declared elected to the general seat  ii that if the interpretation be otherwise then section 544 was ultra vires and iii that S2 had ceased to be a member of a scheduled tribe at the relevant time and his nomination was improperly accepted
Held Kapur J dissenting that S2 was properly and validly declared elected
The provisions of the Constitution and of the Act show that the election in a double member constituency was held for the whole constituency and not for the seats and a candidate who had filed nomination as a member of the scheduled tribes was entitled to contest for both the seats
On a fair and reasonable construction Of section 544 Of the Act there could be no doubt that in a case like the present after S1 was declared duly elected to the reserved seat the votes secured by the remaining three candidates had to be considered before declaring the election for the general seat
A member of the scheduled tribe or caste did not forego his right to seek election to the general seat merely because he availed himself of the additional concession of standing for the reserved seat by making the prescribed declaration for that purpose
It was not necessary for him to file two nomination papers for the two seats
Section 544 of the Act did not offend article 14 or article 330 Of the Constitution and was not unconstitutional
427 Held further that the appellant had failed to establish that S2 had ceased to be a member of the scheduled tribe and had become a Kshatriya
Whatever may have been the origin of Hindu castes and tribes in ancient times gradually castes came to be based on birth alone
A person who belonged by birth to a depressed caste or tribe would find it very difficult if not impossible to attain the status of a higher caste by virtue of his volition education culture and status
The caste status of a person had to be determined in the light of the recognition received by him from the members of the caste into which he sought an entry  unilateral acts of such a person asserting a higher status were not enough to establish the higher status
It is to be hoped that this position will change and in course of time the cherished ideal of castless society truly based on social equality will be attained under the powerful impact of the doctrine of social justice and equality proclaimed by the Constitution and sought to be implemented by the relevant statutes and as a result of the spread of secular education and the growth of a rational outlook and of proper sense of social values  but at present it would be unrealistic and utopian to ignore the difficulties which a member of the depressed tribe or caste has to face in claiming a higher status amongst his co religionists
Per Kapur J The election Of S2 to the general seat was not valid
When a member of the scheduled tribe or caste offered himself for election to a reserved seat he could be elected only to that seat and not to the general seat
The provisions of the Constitution and of the Act show that the election in a constituency was for filling of a seat in the constituency and not for a constituency
When a candidate offers himself for election in a constituency he does so for election to fill a seat in the constituency
Therefore if a candidate wanted to contest both the seats he had to file two nomination papers one for the general seat and the other for the reserved seat and he had to make two deposits
Section 82 Of the destroyed the effect of section 54 of the Act
Caste in Hinduism had its origin not on the basis of birth but of guna karma and subhavana quality actions and character
Caste is nothing but division of labour
Hinduism might have become static at one time it is no longer so and it is wrong to say that caste is dependent upon birth and not on kayma ie action
section 2 had by his actions raised himself to the position of a Kshatriya and he was no longer a member of the scheduled tribe or caste