JUDGMENT
1. This is a suit for recovery of money representing sum allegedly due on the foot of an account together with interest thereon.
2. Plaintiff, a firm registered under the [ACT], claims that it started dealing with defendants in 1966. Defendants 2 and 3 are partners doing business in the name and style of defendant 1. Plaintiff was supplying chemicals and advancing money to defendant 1. Defendant 1 supplied manufactured goods. An account of the transactions was maintained and this showed a debit of Rs. 6,20,623.40 ps. Defendant 1 had supplied goods worth Rs. 2,79,965.14 ps. leaving outstanding a balance of Rs. 3,40,658.26 ps. The accounts were gone into and defendants had admitted the above position. In their balance sheet issued on, 13-11-1974, defendants had acknowledged the above liability. Despite demand the dues had not been paid. Hence this suit for recovery of the dues plus interest @ 21% per annum. The acknowledgement brought the suit within limitation.
3. Defendants denied the averments summarised above. Defendant 1 had once purchased goods worth Rs. 14,620.60 ps. and the price had been paid in full. There was no accounting or settlement of accounts. Plaintiff's accounts were not regularly maintained nor reliable. Plaintiff's suit deserved to be dismissed with costs.
4. Pleading aforestated have occasioned the following issues. These are given below with my findings recorded against them.
Issues Findings
1. Does plainiiff prove that it was and is a firm registered under the [ACT]?
2. Does plaintiff prove that as from 1966 onwards it sold goods and advanced monies to the defendants and that (he total thereof comes to Rs. 6,20,623.40 ps.?
3. Does plaintiff prove that defendants made repayments by way of value of goods supplied totalling Rs. 2,79,965.14 ps.?
4. Does plaintiff prove an outstanding of Rs. 3,40,658.26 ps.? from defendants?
5. Whether plaintiff establishes a mutual accounting between it and defendants in about June 1972 wherein defendants admitted their being liable to the plaintiff to the extent of Rs. 3.40,573,00?
Does not survive
6. Did defendants in their balance sheet dt. 13-11-1974 acknowledge the aforementioned liability and whether this acknowledgement brings the plaintiffs claim within limitation?
Yes 6-A. What interest - if any is the plaintiff entitled to?
Rs. 13,413.00
7. Relief and costs?
See para 13.
REASON
5. P.W. I who is an Accountant of the plaintiff firm with a standing of 26 years has produced the certificate Ex, G. This document establishes the registration of plaintiff firm under the [ACT]. Issue I has thus to be answered as 'yes'.
6. Having regard to the pleadings it becomes necessary to discuss issue Nos. 2 to 6
bar, the factor of limitation collectively. The plaintiffs stand is that it had dealings with defendants since 1966 and that in the course thereof, the latter became indebted to it to the extent of Rs. 3,40,658.26 ps. This was so admitted in the reckoning which took place in June 1972. In their balance-sheet dt. 13-11-1974 defendants acknowledged the existence of this liability. The written statement is a total denial of defendants having had any dealings with plaintiff except for a one-time cash purchase of goods worth Rs. 14,620.60 ps. Defendants have said nothing in relation to the acknowledgement, except that it was not made within [he period of limitation of the original debt. The only witness examined at the trial is plaintiff's Accountant. Adjournments have been sought to examine defendani 2 and when an order was passed that he be examined on commission, the plea was that this could not be done because of his physical condition. The medical certificate tendered showed that defendant 2 has some throat ailment which causes a difficulty in swallowing. At the Bar it was stated that defendant 2 is 100 years old. Statements made at the Bar are not proof unless ad mitted by the other side. That apart, it is not as if defendant 2 is the only person who could have testified on behalf of the defence. Defendants must be having servants and defendant 3 is very much alive and active in the business. The acknowledgment dt. 13-11-1974 at Ex. D bears her signature and she could not have signed the firm's balance sheet unless she was conversant with the situation. No exception has been taken to P.W. 1's assertation that Ex.D bears defendant 3's signature and that this is based on his acquaintance with her signature having seen the same on a number of communications received by plaintiff from defendant 1. The position thus is that while plaintiff has examined its Accountant who is conversant with the suit transactions to some extent at least-defendants 2 and 3 have not been examined. The reasons given for the non-examination of defendant 2 do not carry conviction. But even if it be assumed that defendant 2 is physically not in a position to testify, the non-examination of defendant 3 and servants of defendant I gives rise to an adverse inference. What the extent of such inference will be is a different matter. This is the background in which the evidence has to be appraised.
7. P.W. 1's testimony is based upon entries made in plaintiff's account books backed by such documents as were traceable, and this, in the context of the great interval firstly between the events and the institution of the suit and secondly the latter and the commencement of the hearing. A great number of shortcomings arc said to vitiate the evidence at least to the extent of a major portion of the claim. The argument is that plaintiff's evidence consists of no more than entries in their account books and it is well settled that these by themselves are not enough to charge defendants with liability. Reliance in this behalf is placed upon [PRECEDENT] . As to the invoices Tendered by P.W. 1 to connect some of the entries in the account books, these were not the originals. No foundation had been led to establish the nonavailability of the originals. Secondary evidence could not be led and what was described as secondary evidence by P.W. 1 did not conform to that description. Precedents cited in support of these contentions are those and .
8. It will first be necessary to get a clear picture of the accounts of plaintiff. P.W. 1 deposes that plaintiff's accounts are kept in the regular course of business and that entries therein are made as and when any transaction takes place. Ex.B is an extract from plaintiff's ledger book, relating to its dealings with defendant 1. Witness has been cross-examined at great length and has explained each entry. True copies of invoices to connect some of these entries and the bank statements have been tendered by witness in response to a request made by the Advocate for the defendants. That a person cannot be charged with liability on the basis of mere entries in books of accounts is clear from [SECTION] of the [ACT]. That secondary evidence can be adduced only upon proof of the nonavailability of the original, is equally elementary. The invoices tendered by P.W. 1 are not carbon copies and P.W. 1 has not explained how they came to be prepared. But against these shortcomings is the omission of the defendants to come into the witness box. It is not as if they have nothing to explain. If nothing else, P.W. 1's evidence shows that parties had been dealing with each other as far back as 1966, that a record of transactions between them was made, that a mutual accounting took place and that as late as 13-11-1974 defendant 1 through partner defendant 3, acknowledged the existence of its liability to the extent of Rs. 3,40,573.00. The question as to whether the acknowledgment was made within limitation or not, may be kept aside for the moment. By itself the acknowledgment bears out the correctness of Ex. B which explains how defendant 1 became indebted to plaintiff to the extent acknowledged. Therefore it is not as if the plaintiff's claim rests on nothing more substantial than mere entries in an account. Taken together with the ill-concealed avoidance of the witness box by defendants, the sure conclusion is that plaintiff has proved issues Nos. 2, 3 and 4. Nothing much turns upon whether or not an accounting did or did not take place in June 1972. The fifth issue is answered as 'does not survive'.
9. Ex. D which is proved to bear defendant 3's signature, is a list of 23 creditors of defendant 1. One of them is the plaintiff and the indebtedness is acknowledged to be to the tune of Rs. 3,40,652.26ps. The argument is that the acknowledgment had to be proved to have been made within the period of limitation. A presumption annexed to the acknowledgment of any debt, is, that the maker is aware of the legal position and makes such an acknowledgment knowing the debt to be within time. The proper way to rebut the presumption is by an examination of the maker instead of raising hair-splitting technicalities to overcome the insuperable. The only defect in the acknowledgment being meritless, it has to be held that the suit having been filed on 18-10-1975 i.e. within three years of 13-11-1974, is within time.
10. There is another reason why the claim is good in law even if we assume that Ex. D was not executed before the expiry of period of limitation. [SECTION] [ACT] validates a promise to pay a debt barred by limitation. This, it was argued, is not the stand of the plaintiff and cannot therefore be taken into consideration. The pleadings do not have to reflect legal submissions. They are to incorporate only the material facts. The making of the acknowledgment has been pleaded and this is cited as a reason for the claim in suit being within time. Not describing the acknowledgment as a promise would not deprive plaintiff of the right to have recourse to the legal provision applicable. I understand that after the expiry of the period of limitation nothing short of a clear promise can provide a fresh period of limitation. But such a promise can also be inferred by necessary implication. The Supreme Court in [PRECEDENT] quoted with approval a Privy Council decision in [PRECEDENT], that an unconditional acknowledgment was sufficient to furnish a cause of action for it implied a promise to pay. A decision of the Allahabad High Court to the contrary ([PRECEDENT], was held as not laying down good law. There is nothing ambiguous about Ex.D. It Says that as on 13-11-1974 defendant 1 is indebted to the plaintiff to the extent of Rs. 3,40,652,26 ps. The balance sheet is signed by defendant 3 who is a partner of the firm. Her competence to bind the firm is not disputed. Being thus clear, it amounts to a promise within the meaning of [SECTION] of the [ACT]. If so, the suit is plainly within time.
11. Plaintiff has claimed interest @ 21% per annum from 20-1-1975 till 17-10-1975. The rate is excessive and has to be slashed to 6 1/4% per annum if interest be at all admissible. As to whether or not it is admissible, the dues represent advances and price of goods supplied. Whether under the [ACT] or the [ACT], plaintiff would be entitled to interest. The suit was instituted after service of notice dt. 20-1-1975 (Ex. C). At the permissible rate, plaintiff will get Rs. 13,413.00 towards past interest.
12. To sum up, plaintiff will be entitled to a decree for the principal sum Rs. 3,40,652.26 ps. and past interest Rs. 13,413.00, totalling Rs. 3,54,065.26 ps. The principal sum will carry interest @ 6% per annum from date of suit till realisation. Plaintiff will get costs corresponding to its success and defendants shall bear their own costs. The balance of plaintiff's claim fails and will stand dismissed with costs thereon.
13. Decreed that defendants do pay to plaintiff Rs. 3,54,065.26 ps. and the corresponding costs. Rest of the plaintiff's claim dismissed with costs. Defendants to bear their own costs. Rs. 3,40,652.26 ps. from out of the decretal sum to carry interest @ 6% per annum from date of suit till realisation.
14. Order accordingly.