JUDGMENT

Rankin, C.J. - This suit was brought so long ago as 1924 by a Company, the Planters Agency Co. Ltd., against the defendant, Bezboruah, the proprietor of a Tea Estate in Assam called the Boloma Tea Estate. Pending suit the plaintiff Company assigned its interest to the Tea Financing Syndicate Ltd. which has been substituted as plaintiff, but this assignment may for the present purpose be ignored.

2. The suit is brought upon a dead of hypothecation dated 3rd February 1920. This deed in effect provided that the plaintiffs would make advances or grant other pecuniary accommodation to the defendant to an extent not exceeding Rs. 80,000 to enable him to work and carry on the Boloma Tea Estate; but it was expressly stipulated by the concluding words of the deed that advances would be made for so long and to such extent only as the plaintiffs in their discretion should think fit, and that the plaintiffs might discontinue them as and when' they considered it expedient with one month's notice to the defendant. The defendant, by the dead, hypothecated to the plaintiffs the entire tea crop for the season 1920 and the produce thereof and agreed to send and transmit the said tea as soon as it was manufactured and in a fit state for transmission to Calcutta to the plaintiffs in order that it might be sold in Calcutta by the plaintiffs by public auction and for such price as the plaintiffs might consider reasonable. It was declared that until the tea should be so consigned and transmitted, the defendant would hold the same in trust for the plaintiffs and at the plaintiffs' absolute order and disposal. It was further agreed that the defendant's account in the plaintiffs' books should be made up with interest at 9 per cent per annum with half-yearly rests and that all costs, charges and expenses incurred by the plaintiffs in connexion with the security and the amount for the time being due to the plaintiffs on the said account should be repaid by the defendant to the plaintiffs on demand or, if no demand be made, within one year from the date of the deed.

3. The plaintiffs allege that, pursuant to this deed, they advanced moneys to the defendant and received from him consignments of tea, proceeds of which after sale they credited to the defendant; and that these dealings were carried on, on a mutual, open and current account with the defendant, commencing from 3rd February 1920, and ending on 30th June 1921. The suit is brought for some Rs. 70,000 as balance of this account. The defendant, by his written statement, sets up a claim, apparently by way of equitable set-off for damages for the plaintiffs' refusal to advance to him the full sum of Rs. 80,000 mentioned in the deed. This part of the defence has been abandoned. In addition, the defendant denies that his account with the plaintiffs was a mutual, open and currant account. He also denies that it ended on 30th June 1921 and says that the last advance made by the plaintiffs was on 14th September 1920 and that the last consignment of tea was sent about the last week of August 1920. The defendant further denies the correctness of the account annexed to the plaint and pleads that the plaintiff's claim is barred by limitation.

4. The main point in the case is whether or not the plaintiff's claim in view of Article 85 of the Schedule to the Limitation Act of 1908, is barred, save as regards the sum of Rs. 909-7-0 being the amount of six items in the account which represent amounts debited to the defendant within three years before suit, namely between February and June 1921. It is to be observed that the suit as framed is founded upon an agreement between the parties contained in the deed of 3rd February 1920 and that no further or other agreement is pleaded. The correspondence put in evidence at the trial comprises a letter from the plaintiffs to the defendant, dated 17th January 1920 proposing certain terms; the next letter disclosed is a letter from the defendant to the plaintiffs, dated