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1995 JLJ 730
A.K. Mathur and R.S. Garg, JJ.
Sharda Talkies (M/s.) and another v. Smt. Madhulata Vyas and others
F.A. No. 66 of 1984; against the judgment and decree passed by Shri L.S. Nihalani, 1st Additional Judge to the Court of District Judge, Raipur, in Civil Suit No. 94-B of 1976; Decided on 16.2.1995.
(2) Limitation Act, 1963 -- Arts. 22 and 19 -- khata opened in name of a person -- interest regularly added every year -- it is a transaction of ‘deposit‘ and not of ‘loan‘. AIR 1970 Guj. 269 relied on. [Para 14
(3) Limitation Act, 1963 -- Art. 22 -- khata maintained for years together -- small deposit made and withdrawal also taking place in the same fashion -- depositee can be presumed to be banker of the depositor. [Para 15
(4) Limitation Act, 1963 -- Art. 22 -- transaction of deposit -- limitation starts from the date of demand -- suit filed within three years of demand -- well within time. [Para 18
(5) Money Lenders Act, 1934 (M.P.) -- S. 2 (v) -- person not a money lender on date of initial transaction of deposit -- provision of Act not applicable -- provisions of the Act are also not applicable to transaction of "deposit". [Para 21
(6) Limitation Act, 1963 -- Ss. 19 and 18 -- part payment made by defendant -- period of limitation starts from the date of payment. [Para 24
(7) Limitation Act, 1963 -- Ss. 20 (2), 19 and 18 -- provision under S. 20 (2) -- is in nature of explanation to Ss. 18 and 19 -- has nothing to do with revival of time barred debt -- object is not to facilitate frauds by debtor upon creditor. [Para 25
(8) Partnership Act, 1932 -- S. 4 -- "partnership" as defined under -- words "acting for all" are important -- every partner has implied authority to keep the firm alive -- he can act on behalf of all partners or firm -- no authority from other partners is necessary. [Para 26
(9) Partnership Act, 1932 -- Ss. 72, 63 and 32 (3) -- one partner retired -- public notice envisaged under not given -- no shelter of retirement can be taken by the firm -- retired partner is liable to third parties under S. 32 (3). (1982) 7 AC 345 relied on. [Para 26
¼1½ ifjlhek vf/kfu;e] 1963 && vuq- 19 rFkk 22 && ^m/kkj* rFkk ^fu{ksi* && nks in && ijLij vuU; ugha gSa && m/kkj mixr fd, tkrs gh izfrlans; gks tkrk gS && fu{ksi ek¡x ij izfrlans; gS && laO;ogkj dk Lo:i i{kdkjksa ds vk‘k; ls fu/kkZfjr fd;k tk,xk && nLrkost iz‘u dk fu‘pk;d ugha gSA , vkb vkj 1936 ih lh 171] , vkb vkj 1940 ih lh 132] , vkb vkj 1956 ,l lh 10] , vkb vkj 1965 enzkl 427 rFkk , vkb vkj 1971 ,l lh 2551 voyafcrA ¿ iSjk 10 ls 13 ¼2½ ifjlhek vf/kfu;e] 1963 && vuq- 22 rFkk 19 && fdlh O;fDr ds uke ls [kkrk [kksyk x;k && izfro"kZ fu;fer :i ls C;kt tksM+k x;k && ;g laO;ogkj ^fu{ksi* dk gS] ^m/kkj* dk ughaA , vkb vkj 1970 xqtjkr 269 voyafcrA ¿ iSjk 14 ¼3½ ifjlhek vf/kfu;e] 1963 && vuq- 22 && [kkrk dbZ o"kksZa rd j[kk x;k && y?kq fu{ksi fd, x, rFkk mlh Hkk¡fr vkgj.k Hkh gqvk && fu{ksih ds fu{ksidrhZ dk cSadj gksus dh mi/kkj.kk dh tk ldrh gSA ¿ iSjk 15 ¼4½ ifjlhek vf/kfu;e] 1963 && vuq- 22 && fu{ksi dk laO;ogkj && ifjlhek ek¡x dh rkjh[k ls izkjaHk gks tkrh gS && okn ek¡x ds rhu o"kZ ds Hkhrj Qkby fd;k x;k && le; ds Hkhrj gSA ¿ iSjk 18 ¼5½ lkgwdkj vf/kfu;e] 1934 ¼e-iz-½ && /kkjk 2 ¼ik¡p½ && fu{ksi ds izkjafHkd laO;ogkj dh rkjh[k dks O;fDr lkgwdkj ugha && vf/kfu;e dk mica/k ykxw ugha && vf/kfu;e ds mica/k ^^fu{ksi** ds laO;ogkj ij Hkh ykxw ughaA ¿ iSjk 21 ¼6½ ifjlhek vf/kfu;e] 1963 && /kkjk 19 rFkk 18 && izfroknh }kjk Hkkfxd lank; fd;k x;k && ifjlhek dh vof/k lank; dh rkjh[k ls izkjaHk gks tkrh gSA ¿ iSjk 24 ¼7½ ifjlhek vf/kfu;e] 1963 && /kkjk 20 ¼2½] 19 rFkk 18 && /kkjk 20 ¼2½ ds v/khu mica/k && /kkjk 18 rFkk 19 ds Li"Vhdj.k ds Lo:i dk gS && le; oftZr _.k ds iqu% izorZu ls mldk dksbZ laca/k ugha gS && mís‘; _.kh }kjk ysunkj ij diV lqdj cukus dk ugha gSA ¿ iSjk 25 ¼8½ Hkkxhnkjh vf/kfu;e] 1932 && /kkjk 4 && ds v/khu ;Fkk ifjHkkf"kr ^^Hkkxhnkjh** && ‘‘kCn ^^lHkh ds fy, dk;Z djrs gq,** egRoiw.kZ gS && izR;sd Hkkxhnkj dks QeZ dks pyk, j[kus dk foof{kr izkf/kdkj gS && og lHkh Hkkxhnkj vFkok QeZ dh vksj ls dk;Z dj ldrk gS && vU; Hkkxhnkjksa ls fdlh izkf/kdkj dh vko‘;drk ugha gSA ¿ iSjk 26 ¼9½ Hkkxhnkjh vf/kfu;e] 1932 && /kkjk 72] 63 rFkk 32 ¼3½ && ,d Hkkxhnkj fuo`Ùk && mica/k ds v/khu ifjdfYir lkoZtfud lwpuk ugha nh xbZ && QeZ }kjk fuo`fÙk dk vkJ; ugha fy;k tk ldrk && fuo`Ùk Hkkxhnkj /kkjk 32 ¼3½ ds v/khu vU; i{kdkjksa dks nk;h gSA ¼1982½ 7 , lh 345 voyafcrA ¿ iSjk 26
R.S. Garg, J. -- 1. The defendants Nos. 1 and 3, being aggrieved by the judgment and decree, dated 6.3.1984 passed in Civil Suit No. 94-B of 1976 by the First Additional Judge to the Court of District Judge, Raipur, decreeing the plaintiff's suit for a sum of Rs.1,03,413.88 with costs and interest thereon at 6 per cent per annum from the date of the suit till realisation, have preferred this appeal.
2. The original plaintiff Mohanlal Vyas, since deceased, father of plaintiffs Nos. 2 to 6 and husband of plaintiff No.1, was a business man and a man of means. Defendant No.1 is a firm carrying on a cinema business in the name and style of M/s Sharda Talkies at Raipur. The firm 'M/s Sharda Talkies' (hereinafter referred to as the 'firm') for the sake of brevity) was managed by the deceased Shyam Charan, now represented by the legal representatives, respondents Nos. 7 to 9 and appellant No.2 defendant No.3, namely, Lalit Kumar Tiwari. As the original plaintiff and defendant No.2 died during the pendency of the suit, their legal representatives were substituted in their place. The plaintiff-Mohanlal Vyas, according to his allegations in the plaint, made deposit with defendant No.1 in the year 1948-49, of a sum of Rs.10,000/- under on oral agreement that the defendant shall pay interest at the rate of Rs. 9/- per cent per annum, which was to be credited in the account books of defendant No. 1 with yearly intervals. According to the plaintiffs, the deceased Sharda Charan Tiwari had supplied the account of the said talkies from the year 1960-61 till 1965-66 and had acknowledged the balance of Rs. 1,01,054.96. According to the plaintiffs, defendant No. 3, representing to be a partner of the firm, acknowledged the amount on 17.9.1968 for the Diwali accounting year 1966-67 and also acknowledged the balance for the Diwali accounting year 1967-68. The plaintiffs further stated that the defendants supplied copies of extracts of the accounts for the Diwali years 1958-59, 1960-61 to 1967-68. The plaintiffs further pleaded that defendant No. 3, being a partner of the firm, acknowledged the balance of Rs. 1,27,979.88 on 6.7.70. This acknowledgement was inclusive of the interest accrued amounting to Rs. 10,566.00.
3. The plaintiffs further pleaded that the defendants were maintaining the accounts regularly and the defendants credited the amounts paid by Mohanlal Vyas. As and when the amount was withdrawn by Mohanlal Vyas, the accounts were debited. Any interest accrued on the said deposit was credited in favour of Mohanlal Vyas at the end of the year and after the close of the year, the accounts were settled by adjusting the entries and striking the balance which was carried forward to the next year. According to the plaintiffs, such settlements were made on 1.2.1961, 21.2.1968, 17.9.1968 and 6.7.1970. The statements prepared by the defendants were signed by the deceased Shyam Charan Tiwari for the year 1960-61, 21.2.1968, 17.9.1968 and 6.7.1970. The statements prepared by the defendants were signed by the deceased Shyam Charan Tiwari for the years 1960-61 to 1965-66. Defendant No.3 Lalit Kumar signed the statements for the years 1966-67, 1967-68 and 1968-69. All these statements were signed by defendant No.3 as a partner of the firm M/s Sharda Talkies. According to the plaintiffs, the statements of accounts were not mere acknowledgements of liability but were accounts stated, which furnished a cause of action in favour of the plaintiffs. The plaintiff Mohanlal Vyas demanded balance amount by his registered notice dated 2.12.1973, but the defendants did not care to reply, nor did they pay the amount. The plaintiffs, therefore, filed the suit for the recovery of Rs. 1,03,413.68.
4. The plaintiffs submitted that the cause of action accrued in his favour on 17.9.1968 and 6.7.1970 when the defendants acknowledged the balance and promised to pay. The plaintiffs also stated that various payments were made to the plaintiffs on 21.1.1970, 13.4.19
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