Judgement

Appeal (No. 112 of 1932) from a decree of the High Court (January 19, 1932), reversing a decree of the Subordinate Judge of Shahjahanpur (September 14, 1927).

The appellant firm, who were moneylenders and had had dealings with the respondents for many years, sued them on December 29, 1926, claiming Rs. 16,043, as the amount due upon an account stated on September 26, 1925, and interest since due. The only question arising upon the appeal was whether the suit was barred by limitation.

The facts appear from the judgment of the Judicial Committee.

The High Court (Mukerji and Bennet JJ.), reversing the decree of the trial judge, dismissed the suit on the ground that it was barred. The learned judges, following Ganga Prasad v. Ram Dayal (( 1901) I. L.

R. 23 A. 502.), held that art. 64 of the Indian Limitation Act, 1908, applied only where the account stated consisted of mutual demands. They were also of opinion that there was no express promise to pay so as to make s. 25, sub-s. 3 of the Indian Contract Act, 1872, applicable. The judgment is reported at I. L. R. 54 A. 506.

1934. Dunne K.C. and Hyam for the appellants. The Indian Limitation Act, 1908, Sch. I, art. 64, applied to the suit, and therefore it was not barred. That article applies although the account did not consist of mutual or reciprocal demands. If the application of the article was limited in that manner it would be superfluous having regard to art. 85. In the recent judgment of the Board in Siqueira v. Noronha ([ 1934] A. C. 332.), where the account consisted of sums due to the plaintiff for salary and drawings by him, it was held that there was an account stated resulting in a contract for good consideration to pay the balance found due. In that case the Indian Limitation Act, 1877, the material provisions of which were the same as those of the Act of 1908, applied. As appears from the judgment in Raj Narain Rao v. Ram Sarup (( 1929) I. L. R. 52 A. 480, 486.), there has been a conflict of opinion in India as to what constitutes an account stated for the purpose of art. 64. In Ganga Prasad v. Ram Dayal (( 1901) I. L. R. 23 A. 502.), followed in the present case, it has been held that art. 64 applies only where the account deals with mutual demands; the same view has been taken in several other cases. In Manjunatha Kamti v. Devamma (( 1902) I. L. R. 36 M.186.), and apparently in Kahan Chand-Dula Ram v. Day a Ram-Amrit Lal (( 1928) I. L. R. 10 Lah. 745.), the contrary was held. It is submitted that the view that art. 64 applies only where there are mutual demands is inconsistent with the judgment of the Board in Siqueiras case. (1) It was not shown in the present case that all the items of the account were barred at its date; it is to be inferred from the facts that the respondents had made a payment within the statutory period. Even if art. 64 does not apply there was on the account being taken a promise in writing by the respondents to pay the balance found due, so as to make s. 25, sub-s. 3 of the Indian Contract Act, 1872, applicable.

Abdul Majid for the respondents. What took place in September, 1925, may have amounted to an " account stated " as that expression is used in English pleading Bullen and Leake, Precedents of Pleadings, 7th ed., p. 49 ; but it was not such a statement of accounts as is referred to in art. 64. The article does not in terms refer to " a suit on an account stated " but uses language showing that it refers to a settlement of cross-claims ; the legislature had in mind the language of Blackburn J. in Lay cock v. Pickles. (( 1863) 4 B. & S. 497.) There has been a long series of decisions in India dating from Nahanibai v. Nathu Bhau (( 1883) I. L. R. 7 B. 414.), or earlier, that the article, or the corresponding article in earlier Acts, applies only where there were mutual or reciprocal demands. There is little Indian authority to the contrary. What took place here was merely an acknowledgment in writing which was ineffective under