Annamaly Chettiar V. Thronhill

1935 Present: Garvin S.P.J, and Maartensz J.

ANNAMALY CHETTIAR v. THORNHILL.

215-D. C. Ratnapura, 4,687.

    Account stated-A settlement of accounts-No evidence of cross-accounts- Period of limitation-Ordinance No. 22 of 1871-Civil Procedure Code, s. 192.

A settlement of accounts between two parties, where in respect of their dealings one party always remains the debtor, and there is no evidence of cross-dealings between them, is an account stated within the meaning of section 8 of the Prescription Ordinance.

Section 192 of the Civil Procedure Code reserves the power of the Court to award interest in respect of any period prior to the institution of the action only where the right has been secured by agreement or is recognized in law.

APPEAL from a judgment of the District Judge of Ratnapura.

H. V. Perera, for defendant, appellant. Keuneman (with him Gratiaen), for plaintiff, respondent. February 6, 1935. GARVIN S.P.J.-

By its decree in this case the Court awarded the plaintiff judgment for the sum of Rs. 54,365.44, with legal interest thereon from June 2, 1927, till payment in full and also his costs of action. The defendant has appealed, but, at the hearing, the only point which was submitted to us in support of the appeal was that the plaintiff's action was barred by lapse of time. The plaintiff claimed various sums of money. The two principal heads under which his claim falls are first, one for rice supplied between August, 1923, and June 14, 1924, and the second for money lent and advanced during the same period. The third item is a small sum of Rs. 10.50, which is hardly worth noticing, and the last is a substantial claim for interest, which the plaintiff says has accrued up to the time when this action was brought. For an alternative cause of action the plaintiff pleaded that on June 24, 1924, an account was stated between the parties in respect of their dealings and that at that accounting a sum of Rs. 54,365.44 was found to be due from the defendant to the plaintiff. The plaintiff claims this sum with interest up to the date of action. He also pleads, that in respect of both causes of action, the Court should exercise its power and grant him interest from the date of action to the date of decree, and, thereafter, upon the aggregate amount in terms of section 192 of the Civil Procedure Code.

In respect of the first cause of action it is, I think, clear that the amounts claimed would clearly have been barred by lapse of time in the absence of any written acknowledgment such as is contemplated by the Prescription Ordinance. But, it has been indicated to us in the course of this argument that there are two letters upon which the plaintiff relied as an acknowledgment, which took this debt out of the bar of limitation. It is hardly necessary to consider whether these acknowledgments are sufficient for the purpose since the claim in respect of the second cause of action is clearly not barred by lapse of time if there was such an

account stated as is pleaded by the plaintiff. It was urged, however, by counsel for the appellant that this was not an account stated within the meaning of the Ordinance and that it is in any event not an account stated which is evidenced by a writing. The second of these two submissions must, I think, be conceded inasmuch as there is no settlement in writing. It remains, therefore to consider whether the contention that this is not an account stated is well founded.

Now the argument that has been briefly outlined to us is that in accordance with the decisions of this Court, a settlement of accounts between parties where, in respect of their dealings, one party remains always the debtor of the other and where there are no cross-dealings, is not an account stated within the meaning of the Prescription Ordinance. There can be no question that there is a long series of judgments of this Court which seem to

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