Ismail, J.- A. S. No. 408 of 1967 has been preferred by the defendant in O. S. No. 50 of 1965 on the file of the Court of the Subordinate Judge of Devakottai. The respondent in that appeal instituted the suit for recovery of a sum of Rs. 17,566.16, as per vaddi chittai filed along with the plaint, with subsequent interest. According to him, the appellant and the respondent had an open, mutual and current account between them at Shanmughanathapuram and they carried on the said dealings from 16th April, 1953 to 3rd December, 1953 on which date the amount due by the appellant to the respondent was Rs. 12,000. Under the agreement, interest on the respective amounts had to be calculated and added to the principal at the end of each Tamil year at the prevalent rates of interest. His further case was that the rate of interest at the outset, was at nine annas per centum per mensem, that it was later on increased to ten annas per centum per mensem from 16th April, 1956, that it was 11 annas per centum per mensem from 17th April, 1958 and that finally it was 12 annas per centum per mensem from 16th April, 1960 and that these rates of interest followed the prevalent increases of bank rates in accordance with the trade usage of the parties. The respondent further stated that four payments had been made by the appellant through his agent and that he had given receipts to that agent and that the said four payments were open payments and were made as follows:

(1) Rs. 5,000 on 2nd May, 1962; (2) Rs.1,500 on 14th October 1962; (3) Rs. 2,500 on 24th October, 1962; and (4) Rs. 1,000 on 20th December, 1962.

The respondent further contended that he was entitled to appropriate these payments to the earliest amounts on the debit side of the appellant and interest thereon. Thus, after giving credit to the said sum, according to the respondent, a sum of Rs. 17,566.16 with interest upto and inclusive as on 7th September, 1965 was due and the respondent was entitled to recover the same from the appellant. The respondent also contended that the appellant was not an agriculturist entitled to any benefits under Madras Act IV of 1938. With reference to the question of limitation, the respondent pleaded that the appellant herein was in Malaysia during the several periods mentioned in the plaint that the appellant had written from Malaya, a letter on 9th Septebmer 1957 acknowledging his liability and that at his request a vaddi chittai was furnished to him and that the appellant had promised to pay him.

2. The appellant-defendant in his written statement denied that there was an agreement to pay any interest. According to him in addition to the sum of Rs. 10,000 admittedly received by the respondent herein, the appellant had paid a further sum of Rs. 2,000 on 22nd January, 1954 and that sum together with the sum of Rs. 10,000 referred to above, discharged bis entire liability to the respondent. He further contended that the suit was barred by limitation and that he was an agriculturist entitled to the benefits of Madras Act IV of 1938.

3. The respondent filed a reply statement denying the allegations contained in the written statement and reiterating the case put forth by him in his plaint.

4. On the basis of these pleadings, the following issues were framed by the trial Court;

“ 1. Whether the dealings between the plaintiff and the defendant were had as on a mutual, open and current account or as mere band loan transactions ?

2. Whether the agreement for interest is true and to what amount of interest is the plaintiff entitled ?

3. Is the usage for interest true ?

4. Is the plaintiff not entitled to appropriate the payments as mentioned in para. 6 of the plaint ?

5. Whether the suit is in time by reason of the defendant’s absence from India as claimed ?

6. Whether the defendant’s letter dated 9th September, 1957 constitutes an acknowledgement of liability and is the suit in time thereby?

7. Is the payment of Rs. 2,000 on 22nd January, 1964 (SCC) pleaded by the defendant

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