Case: National Textile Corporation (Mah. North) Limited Vs. Khushalchand Bissessardas Daga

2. The suit was originally filed by the Model Mills, Nagpur Limited (hereinafter referred to as "the Company") against the respondent, who was the Managing Director of the Company until July 18, 1959, to recover from him a sum of Rs. 46,08,329.69 P. with interest at the rate of 6 per cent per annum on Rs. 35,55,600 from February 11, 1963 up to the date of the judgment and thereafter at the rate of 4 per cent per annum till payment. According to the case made out in the plaint, the said sum of Rs. 35,55,600 represented the aggregate of the amounts fraudulently taken away by the respondent in his capacity as the Managing Director of the Company. At the hearing of the suit the claim for interest on the said sum of Rs. 35,55,600 for the period prior to February 11, 1963 was given up and the suit was confined to the said sum of Rs. 35,55,600 with interest thereon from February 11, 1963 at the rates as aforesaid.3. The facts which have given rise to this appeal have not been disputed before us, and it will be, therefore, sufficient, instead of setting them out in elaborate details to sketch them in order to understand the points which were argued at the hearing of this appeal. The Company was incorporated in August 1920. Prior to the coming into force of the Companies Act, 1956 Messrs Bansilal Abirchand Dadabhoy and Company, a partnership firm, were the managing agents of the Company. The respondent was a partner in the said firm. As appears from the evidence of the appellants witness Dishaw Dorabji Patel, in about December 1950 Sir Maneckji D. Dadabhoy who was the Chairman and Managing Director submitted his resignation and in his place the respondent was appointed as theAfter the respondent was so appointed, the system of purchasing cotton till then followed, of asking for samples from merchants and brokers, selecting the samples and then placing the orders was discontinued and Messrs Hari Cotton and Company were appointed the sole suppliers of cotton to the Company. The said firm of Messrs Hari Cotton and Company was managed by the respondents brother Naraindas Bissessardas Daga. Against the cotton alleged to be supplied to the Company large advances were made to the said Messrs Hari Cotton and Company and were owing by the said firm to the Company. In view of the restraints contained in the new Companies Act, 1956, on dealings by a company with concerns owned or controlled by relatives of directors the said Messrs Hari Cotton and Company were replaced by Messrs Harakchand Mohanlal, sole proprietary concern, of which the proprietor was one Mohanlal Daga. Mohanlal Dagas brother Laxmichand Daga was the munim in the respondents Bombay concern, namely, Messrs Daga and Sons. The amounts fraudulently taken away by the respondent have been through the instrumentality of the said firm of Messrs Harakchand Mohanlal. The uncontroverted evidence on the record show that in May 1956 Laxmichand met Mohanlal Daga and told him that the respondent and his brother Naraindas were withdrawing moneys from the Company for their own purposes at Nagpur in the name of the said Messrs Hari Cotton and Company and that in view of the provisions of the new Companies Act which had come into force on April 1, 1956 the said firm of Messrs Hari Cotton and Company would have to be replaced by another entity. Thereafter a meeting took place between the said Mohanlal and the respondent, and it was agreed that a new proprietary concern should be started by the said Mohanlal in the name of Messrs Harakchand Mohanlal and that Mohanlal would sign whatever documents were required of him and that the rest of the work would be managed by the respondent. Thereupon under the respondents instructions Mohanlal was taken to the branch of the Bank of Bikaner in Bombay and an account in the name of Messrs Harakchand Mohanlal was opened.4. It may be mentioned at this stage that on September 22, 1956 the Central Government gave its approval to the appointment of the respondent as Managing Director of the Company, and at the general body meeting of the Company held on December 17, 1956 the respondent was appointed as such Managing Director and an agreement relating to this appointment was executed between the Company and the respondent on December 18, 1956.5. After the concern of the said Messrs Harakchand Mohanlal had started, orders were placed with it for supply of cotton to the Company. The modus operandi which was adopted was that against orders placed amounts were credited to the said Messrs Harakchand Mohanlal in the books of account of the Company towards the price of cotton alleged to be in transit to the mills of the Company in Nagpur. Against such credits Messrs Harakchand Mohanlal drew hundis upon the Company in favour of either Messrs Hari Cotton and Company or the Bank of Bikaner or Messrs Girdharlal Sundarlal. The firm of Messrs Girdharlal Sundarlal consisted of two brothers, namely Girdharlal and Sundarlal. The father of these two was one Asaram Rathi. Asaram was the munim in Messrs Bansilal Ramchandra, a sole proprietary concern of the respondent. It is not disputed that the amounts of the hundis so drawn have all found their way into the pockets of the respondent, and the cotton to the company never found its way to the mills. In certain cases instead of following the above modus operandi payments were made by the cheques to Mohanlal, put into the bank account of the said Harakchand Mohanlal and then the amounts withdrawn and handed over to the respondent. Elaborate evidence of the fraud so practised upon the Company was led in the trial Court, so far as the amounts thus fraudulently taken away by the respondent and proved in Court are concerned, they aggregated to Rs. 35,17, 600 or, in other words, the total amount claimed in the plaint except an item of Rs. 38,000. This has not been disputed before us by the respondent.6. The fact that the books of account of the Company showed advances made to Messrs Harakchand Mohanlal against cotton in transit which ha not at any time arrived thus a large debit stood against the said Messrs Harakchand Mohanlal in the said books of account has caused concern, and the manager of the mills, Jamshedji Pestonji Dordi, wrote letters to the respondent from the said Messrs Harakchand Mohanlal. Two of these letters are on the record. It is also in evidence that the auditors of the Company had also raised queries about such large amounts being allowed to be left outstanding. In order to get over these objections another plan was hit upon. A company called Storage Batteries Manufacturing Private Limited (hereinafter referred to as "Storage Batteries") was got incorporated on May 27, 1958 with an authorised share capital of Rs. 20,00,000. The Promotors of the said Company were one G.M. Mukerjee and L.N. Dhandotiya, and the said Mukerjee advanced Rs. 2,000 for initial expenses. The address of the said Company was 15, Narayan Dabholkar Road,which was the address of one Naridas Mundhra who was a friend of the respondent. Evidence on the record clear that Storage Batteries was a Sham Company got floated by the respondent to stage off the evil day when the fraud perpetrated by him upon the Company would be discovered. In further pursuance of his plan to defraud the Company and to prevent the Company from coming to know of his fraud a meeting of the Board of Directors of the Company was called on June 11, 1958. The said meeting was attended by the respondent, his son Laxmichand, one, T.N. Motishaw and the said Asaram Rathi, the munim of the respondents sole proprietary concern. At the said meeting the resignations from the Board of two Directors, Lachhmandas N. Daga and Jaykrishnadas Narivallabhdas, were accepted. Amongst the business said to be executed at the said meeting as recorded in the minutes of the said meeting was the consideration of a letter dated January 9, 1958 addressed by the Companys auditors to the Board of Directors with respect to the accounts for the year ended June 30, 1957. Item 1 of the report to the auditors referred to the advances made to the said Messrs Harakchand Mohanlal. The explanation given by the respondent at the said meeting was that advances were made to the said Messrs Harakchandas Mohanlal in accordance with the usual practice followed in the past in the matter of purchases of cotton and that out of the bales of cotton purchased from the said Messrs Harakchand Mohanlal all except a small lot of 330 bales of cotton had been received and the said Messrs Harakchand Mohanlal had assured that the remaining bales would be delivered to the mills very soon. When asked about the constitution of the said firm of Messrs Harakchand Mohanlal, the respondent stated that he had no interest whatever in the said firm and that the said Mohanlal was its sole proprietor. According to the said minutes, in view of the explanation given by the respondent the board ratified the respondents action in making the above purchases and granting the above advances. Apart from the said minutes there is no direct evidence of what transpired at the said meeting. Rajendra Thakorlal Desai, the secretary of the Company, who had given evidence at the trial of the suit, was unwell and was unable to remain present at the said meeting held on June 11, 1958. According to his evidence, he had not attended work on June 11, 1958 but had resumed duties on June 12, 1958 when the respondent gave him a draft of the minutes of the said meeting which the respondent had prepared and asked him to incorporate it in the minutes book. Another meeting of the Board of Directors was held on June 19, 1958 at which the said Desai was present and of which the minutes were dictated by him to his stenographer. At the said meeting the Directors present were the respondent, the said Motishaw, the said L.K. Daga, the respondents son, and the said Asaram Rathi, the respondents munim. The minutes of the said meeting record that the Board considered the question of advances to the said Messrs Harakchand Mohanlal made up to July 1, 1957 which were referred to in the auditors report. Mostly the same explanation as was stated to be given by the respondent at the said meeting of the Board held on June 11, 1958 is stated to have been given at this meeting. Respondent is further stated to have informed the Board that he was doing his best to compel the said Messrs Harakchand Mohanlal to pay the amounts due as early as possible and that after considerable negotiations the said Messrs harakchand Mohanlal had proposed to discharge its liability by giving to the Company 5,000 fullyshares of the face value of Rs. 100 each of Storage Batteries, assigning to the Company loans and advances in the sum of Rs. 7,00,000 by way of assigning through the Company the partys loans and advances to the Storage batteries. Payment of Rupees five lacs in cash within one year and Rs. 15 lacs in cash within two years. At the said meeting the other three Directors who were present pointed out that the advances in question were made to Messrs Harakchand Mohanlal prior to their joining the Board. They demanded from the respondent a personal guarantee for the amount due to the Company, which the respondent did not accept but ultimately agreed to give a guarantee in the sum of Rs. 10,00,000. The said Mohanlal had been called to the meeting and was made to wait outside. After the proposal made by the respondent was accepted by the Board, the said mohanlal was called in and agreed to the proposed arrangement. At the said meeting of the Board the respondent was authorised to write a letter to the said Messrs Harakchand Mohanlal meeting out the terms which the Board had accepted and to obtain Mohanlals confirmation in writing thereto as also to confirm in writing the guarantee of Rs. 10,00,000 which he had given tot he Company. The said Mohanlal wrote a letter to the Company in which he stated that he had received the Companys letter dated June 20,1958 along with the draft agreement and that he accepted the terms thereof without reservation. Along with the said letter the said Mohanlal returned the agreement enclosed in duplicate and signed by him, with a request that the Company should sign the counterpart and return it to him. The said agreement is dated June 23, 1958 and is made between the said Messrs Harakchand mohanlal and the Company and signed on behalf of the Company by the respondent. Under the said agreement the said mohanlal agreed to repay the advances of about Rs. 33,00,000 by paying a sum of Rs. 10,00,000 within four months of the date of the said agreement and a further sum of Rs. 10,00,000 within a period of 12 months from the date of the said agreement and forthwith to deliver to the Company 5,000 fullyshares of the face value of Rs. 100 each of Storage batteries with transfer duly executed in favour of the company and to secure transfer and registration of the said shares in the name of the Company and to arrange and secure to the Company a Lavals or transfer of a credit of Rs. 7,00,000 which the said Messrs Harakchand Mohanlal declared was due, owing and payable by Storage Batteries to it and by way of the loans and advances. The letter dated June 23, 1958 from the said Messrs Harakchand Mohanlal to Storage Batteries shows that Messrs Harakchand Mohanlal had sold a complete battery manufacturing plant to Storage Batteries for a sum of Rs. 12,00,000. The bill in the said sum of Rs. 12,00,000 was enclosed with the said letter. The said letter records that the said Messrs Harakchand Mohanlal had agreed to accept payment by receiving 4,999 fullyshares of Rs. 100 each of Storage Batteries in the name of the sole proprietor of the said concern, the said Mohanlal, and by a credit for the balance of Rs. 7,00,200 in the books of account of Storage Batteries, carrying interest at the rate of 6 per cent per annum. The said letter further records that it was agreed that the said Mohanlal would be invited to join the Board of Directors of Storage Batteries. It is needless to mention that all the shares of Storage Batteries and the plant alleged to be sold by the said Messrs Harakchand Mohanlal to Storage Batteries existed purely in the said letters and the agreement. To lend further verisimilitude to the fraud perpetrated upon the Company the said Mohanlal wrote a letter dated June 26, 1958 purporting to forward along with it 5,000 fullyshares of Storage Batteries. It is equally needless to mention that no such shares were at all forwarded to the Company along with the said letter.7. On March 10, 1959 a notice of closure on account of the losses suffered by the Company was put up and on April 6, 1959 the mills closed their doors. On April 24, 1959 the Central Government appointed a committee under section 18 of the Industries (Development and Regulation) Act, 1951, to make an investigation into the circumstances which led to the closure of the Company. On June 25, 1959 all the books and records of the Company, including the book of account andof the meetings of the Board of Directors, were seized by the Police. Several documents were also seized from the said Mohanlal and from the Bank of Bikaner and others. On July 18, 1959 the Central Government issued a notification under sectionof the said Act authorising one Hanuman Prasad Nevatia, to take over the management of the whole of the undertaking, namely, the Model Mills Nagpur Limited, on the ground that it was being managed in a manner highly detrimental to public interest. The Authorised Controller, Nevatia, thereafter took charge of the management of the Company. In the absence of books of the Company which had been seized by the police, the accountant Dordi prepared provisional statements of accountant Dordi prepared provisional statements of account from the lastOn March 7, 1960 awas filed by the police inter alia against the respondent. On July 6, 1960 the respondent was adjudicated an insolvent. Two criminal cases, namely, Criminal Cases Nos. 307 of 1962 and 309 of 1962, were registered by the police against the respondent and some others in which the accused were committed to the Court of Sessions. On February 8, 1963 leave was granted by the insolvency Judge to the Company to file the suit against the respondent and the suit was filed on February 9, 1963.8. When the cases against the respondent and the other accused came up for trial before the Court of Sessions, the respondent pleaded guilty to all the charges and was convicted and sentenced on his plea of guilty. The charges against the respondent and the other accused were entering into a criminal conspiracy with the said Mohanlal and Laxmichand Daga to commit criminal breaches of trust of the funds of the Company over which the respondent in the way of his business as agent of the Company and in his capacity asor the Managing Director was entrusted with dominion and committing in pursuance of such criminal conspiracy the acts of criminal breaches of trust charged against the respondent. The other heads of charges set out the specific acts of criminal breaches of trust so committed by the respondent.9. By a notification dated July 14, 1970 the Maharashtra State Textile Corporation was appointed the authorised controller of the Company in the place of the said Nevatia. On December 21, 1974 the Sick Textile Undertakings (Nationalisation) Act, 1974 (No 57 of 1974), was passed by Parliament replacing an Ordinance which had been promulgated earlier by the President of India. The said Act came into force with retrospective effect from April 1, 1974. The Company is mentioned in Item 83 of the First Schedule to the said Act. By reason of the provisions of the said Act the appellants applied for and were by an order dated March 24, 1975 substituted as plaintiffs to the said suit in place of the Company.10. At the hearing of the suit no evidence whatever, either oral or documentary, was led on behalf of the respondent. The appellants led voluminous evidence to prove each item of defalcation committed by the respondent and pleaded in the plaint except an item of Rs. 38,000. After the evidence was closed and during the course of the arguments, learned Counsel for the respondent applied for leave to amend the written statement by raising a contention that the appellants were not entitled to maintain the suit as the right to sue had not become vested in them. This application was opposed on behalf of the appellants on the ground that the point sought to be raised by the amendment would, were if upheld, displace the appellants suit and was taken at a very late stage. By his order made on March 24, 1976. Mr. Justice Vimadalal rejected the said application for amendment but further stated in the said order, "it will however, be open to Mr. Bharucha (learned Counsel for the respondent who appeared at the trial of the suit) to contend that notwithstanding the rejection of the application for amendment the Court should not pass a decree in favour of a party who has no right to maintain the suit". The learned Judge then heard the arguments on the question of maintainability of the suit and came to the conclusion that the appellants had no right to continue the suit inasmuch as the Companys right to sue the respondent had not become vested in them under the provisions of the said Sick Textile Undertakings (Nationalisation) Act. As, however, a complete trial had taken place, the learned Judge proceeded to give his findings on all the issues which had been raised. He held that the appellants had on the facts proved their case but a part of the appellants claim was barred by the law of limitation. According to the learned Judge, the suit was in substance under section 88 of the Indian Trust Act, 1982, in respect of which no specific period of limitation had been provided in the old Indian Limitation Act, 1908, by which the case was governed and, therefore, the residuary Article 120 of the said applied. In the plaint postponement of the starting point of limitation had been sought by relying upon section 18 of the Indian Limitation act by pleading that the respondent had throughout fraudulently concealed the true facts from the Company and that the Company was by the fraud of the respondent kept from the knowledge of its right to take proceedings to recover the amounts claimed, until some time after March 7, 1970 when the Company for the first time became aware of the true facts. The learned Judge held that section 18 had no application because all the Directors of the Company had knowledge of the fraud committed by the respondent and that the knowledge of the Directors was the knowledge of the Company. The learned Judge, therefore, opined that were the suit maintainable he would pass a decree in the sum of Rs. 23, 35,500, being the aggregate of the amounts embezelled by the respondent within a period of six years prior to the date of the filing of the suit. It is against this judgment and decree of the trial Court that the present appeal has been preferred.

Reasoning: If they are right in this, the period of limitation would not begin to run until the Company obtained knowledge of the fraud, and it would be immaterial whether Article 95 or Article 120 applied, because in either event the suit would be in time since it was filed within three years of the date on which according to the plaint the Company acquired knowledge of the fraud. If, however, Article 36 applies, the suit would be barred by limitation, because according to the plaint the Company came to learn about the fraud of the respondent more than two years prior to the date of the suit. Turning, therefore, first to Article 36, the first condition for the applicability of Article 36 is that the malfeasance, misfeasance or nonfeasance must be independent of contract, which is not the case there as will be presently shown. Contentions similar to those taken before us were advanced before a Division Bench of this Court in (Govind Narayan Kakada v. Rangnath Gopal Rajopadhye)1, I.L.R. 1930(54) Bom. 226. In that case the liquidator of a bank filed an application under section 235 of the Indian Companies Act, 1913, to recover from the agents and directors of the bank various sums of money on the ground of breach of trust, negligence and misfeasance, resulting in loss to the bank. It was contended that the said application was barred by the law of limitation. The Division Bench held that neither Article 36 nor Article 115 nor Article 116 of the Indian Limitation Act applied and the application was governed by Article 120. Marten, C.J., disposed of the contention based upon Article 36 in these words (at pp.:"As regards Article 36, I feel no difficulty. In my judgment the present claim against the Directors for misfeasance or breach of trust is clearly not independent of contract and consequently Article 36 does not apply. In this respect, therefore, I agree with the view of the Allahabad High Court in the matter of the (Union Bank, Allahabad, Limited)2, 1925(47) All. 669, in preference to that expressed by the Lahore High Court in (Bhim Singh v. Liquidator, Union Bank of India)3, 1926(8) Lah. 167. I say this because the relations between the Bank and its Directors are in part governed by numerous Articles in the Articles of Association, including their qualification shares and remuneration, and indeed the very indemnity which they are relying in this case. In my opinion these articles constitute part, though not the whole, of a contract between the Company and its Directors."As we have seen, the respondent was not only a Director but the Managing Director of the Company. Further, he had entered into an agreement dated December 18, 1956 with the Company containing the terms and conditions of his appointment as Managing Director. Under Clause 2 of the said agreement the respondent had agreed to manage the business and affairs of the Company faithfully, diligently, honestly and to the best of his ability and power. The fraud and breaches of trust committed by the respondent cannot, therefore, be said to be independent of contract. In (India Sugar and Henneries Ltd. v. Estate of the late V. Ramalingam)4, A.I.R. 1953 Mad. 694, it was held that Article 36 contemplates an action for compensation for a wrong in the nature of a tort and that the suit to which that article would apply is a suit for compensation, but if the suit was for the recovery of a particular property or a sum of money as such, then the suit cannot fall within the scope of Article 36. The case before the Madras High Court was also the case of a director and the sole managing agent of a company who had gained for himself a pecuniary advantage by availing himself of his fiduciary character. The Court held that in view of the nature of the claim made against him, the suit was under section 88 of the Indian Trusts Act and the only article applicable to such a suit was Article 120.15. We are in respectful agreement with what was laid down in the above two cases, and in our opinion the trial Court was right in holding that Article 120 applied to the suit.The evidence led by the appellants which was not controverted by the respondent clearly establishes that fraud was committed right from the date when the said proprietary concern of Messrs Harakchand Mohanlal was formed up to the end and that the whole thing formed but one integral fraud having as its central object the embezzlement of the funds of the Company by the respondent. In a fraud so conceived, planned and systematically carried out over a period of three years, such act in linked with the other and forms part of a continuous chain and must be taken as the components of an integrated whole. In such a case it is not open to the court to pick up individual acts of fraud and apply to each the period of limitation and say that the period of limitation commenced from the date of the commission of that particular act. Here, there was no question of any initial fraud or any fraud committed to cover up such fraud. The fraud lay in Messrs Harakchand Mohanlal taking away by way of advances moneys from the Company against cotton alleged to be in transit and routing the moneys to the respondent. In the books of the Company these would be shown as advances made to Messrs Harakchand Mohanlal against the cotton said to be in transit. As the cotton was not received by the Company, ultimately a large amount would be outstanding against Messrs Harakchand Mohanlal, but neither in the books of account of the Company nor in any of its other books or papers would it ever appear that the moneys advanced to messrs Harakchand Mohanlal had gone into the pockets of the respondent. No officer or member of the Company nor even a director, unless he was a privy to the fraud, could have knowledge of this type of fraud practised by the respondent. It was sought to be argued by Mr. Mehta, learned Counsel for the respondent, that the Company had knowledge of the fraud because the auditors of the Company had raised certain objections. It was also sought to be argued by Mr. Mehta that the Company had knowledge because the Manager of the Company, J.P. Dordi, had written two letters dated October 1, 1958 and May 20, 1958 respectively to the respondent. It was further contended by Mr. Mehta that when the Central Government appointed a Committee to investigate into the closure of the mills, the Central Government came to know about the respondents fraud and, therefore, the Company must be deemed to have knowledge of the fraud. None of these contentions need detain us long. The auditors objections related to the Board of Directors allowing the amount due from Messrs Harakchand Mohanlal to remain outstanding and to the failure of the Directors to take steps to recover such amount. From this it does not and cannot follow that the auditors knew that the amounts outstanding against Messrs Harakchand Mohanlal had gone into the coffers of the respondent. The theme of both the said letters of Dordi related to the black position which faced the mills by reason of paucity of funds, and in each of these two letters Dordi had made an earnest appeal to the respondent to recover the amounts due from Messrs Harakchand Mohanlal. The very fact that the auditors and the Manager wanted the Directors to recover the outstandings of Messrs Harakchand Mohanlal shows that the were not and could not be aware that these amounts had really been taken away by the respondent. The investigation which was conducted by the Central Government prior to the issue of the notification under section 18 of the Industries (Development and Regulation) Act, 1951, was for the purposes specified in section 15 of the said Act. It was not an investigation into the fraud committed by the respondent. The object of the said Act was to provide for the development and regulation of certain industries set our in the First Schedule to the said Act. As a result of the enquiry which was triggered by the closure of the mills, the Central Government came to the conclusion that the undertaking, namely the Company, was being managed in a manner highly detrimental to the scheduled industry, namely, textile industry, and the management of the Company was vested by the Central government in the Authorised Controller so that the mills could be revived. The question of the knowledge on the part of the directors of the fraud practised by the respondent is irrelevant. If they were not aware of the fraud practised by the respondent, they themselves were victims of such fraud and dupes of the respondent. If they or any of them knew of the fraud and took no steps with respect thereto, they became privy to the fraud and privy to concealing the knowledge of it from the company. The question is when was anyone in charge of the management of the Company who was not a party to the fraud came to learn about it. On June 25, 1969 all books, papers, vouchers and documents of the Company, including the books of account and theof the meeting of the Board of Directors, were seized by the police and continued to remain in the custody of the police. Thereafter on July 18, 1959 Nevatia was appointed Authorised Controller. No books of account or other relevant documents or papers were available to Nevatia, and even had they been available, all that Nevatia would have discovered from them would have been that a large amount was due to the Company from Messrs Harakchand Mohanlal. That the respondent had committed criminal breach of trust in respect of the property of the Company and for the purpose of the commission of such fraud had entered into a criminal conspiracy came to light only when a copy of thewhich was filed by the police came to the knowledge of the Authorised Controller Nevatia. Thewas filed in Court on March 7, 1960 and a copy of it was forwarded to the Company and was received on March 11, 1960 by the said Desai who after the issue of the notification under sectionof the Industrial (Development and Regulation) Act, was appointed by Nevatia as his Secretary. Desai thereafter forwarded the said copy of thebut in no event could it have been prior to March 11, 1960 when Desai himself received the said copy. The period of limitation must, therefore, be taken to have commenced on March 11, 1960. The suit having been filed on February 9, 1963 was, therefore, well within time, whether Article 120 or Article 95 applied. On this finding, the entire claim of the appellants would be in time, and in view of what we have held earlier that the appellants were entitled to continue the suit, a decree should have been passed in favour of the appellants in the sum claimed by them less a sum of Rs. 38,000 in respect of which there was no evidence and which position has been accepted by Mr. Chinoy, learned Counsel for the appellants. This appeal must, therefore, succeed.