For an account to be mutual, there must be transactions on each side creating independent obligations on the other.

Odgers, J.

1. I postponed judgment on the 15th September in order to give the appellants vakil an opportunity of satisfying me that the District Judge went into the question of the nature of the accounts in the case in spite of its not being raised by the parties as it is not in the grounds of appeal to the lower appellate Court. The learned vakil now states that he is unable to get information on the point.

2. The suit is brought by the plaintiff for a sum of Rs. 795 odd, which is said to be due to him from the defendant, a money-lender. The course of business between the parties was apparently that the plaintiff should draw money whenever he wanted it and should also deposit money with the defendant. The plaintiff has not produced any accounts of his own. He relies on a copy of the defendants accounts, Exhibit A. The District Munsif found that the plaintiff had proved his case as he held that a settlement had taken place on either the 14th or the 17th of December 1913. The District Judge, to whom appeal was taken, discredited the evidence with regard to this settlement and that is a finding of fact by which I am bound in second appeal. But the learned Judge goes on to consider whether the transaction is in the nature of a mutual, open and current account and would therefore save limitation if such was the case, and the argument before me has been that the account in Exhibit A is such an account. Now, in order to see what the requisites are for such an account, we should look at the case of highest authority as far as I know in this Court, i.e., the judgment of Holloway, J. in Hirada Basappa v. Gadigi Muddappa [1871] 6 M.H.C. 142. In order that an account may be mutual there must be transactions on each side creating independent obligations on the other and not merely transactions which create obligations on the one side, those on the other being merely complete or partial his charges of such obligations." That statement has been repeated in many judgments ever since the year 1871 and it has over and over again been taken as a correct statement of the law. It may be that in the account before me the balance shifted from one side to the other from time to time : See Shivi Gowda v. Fernandes [1911] 34 Mad. 513, and Kunhi Kutti Ali v. Kunhamad A.I.R. 1923 Mad. 280. But the account, as far as I have been able to see, resembles exactly a bank pass book where deposits of monies are made and withdrawals of monies take place from time to time, the balance being in favour either of the customer or of the bank as the case may be at any given moment. I therefore agree with the learned District Judge that there do not appear to be independent obligations on both sides and that a mere shifting of the account from one side to the other is not enough to constitute mutual obligations.

3. The second appeal must be dismissed with costs.