TMI Blog1965 (10) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant used to make payments from time to time, either in cash or by cheque. The last payment was made by cheque on the 22nd January 1955. All supplies made to the defendant and all payments received from him were duly entered in the plaintiff's books maintained in the regular course of business. A sum of ₹ 15,365-6-3 was outstanding against the defendant, but it was not paid in spite of demand and pleader's notice. Hence the plaintiff instituted the suit on the 10th May 1957, claiming interest at the rate of 6 per cent per annum. 3. The defendant set up various pleas in defence. It was urged by him that the Dhanbad Court where the suit had been instituted had no jurisdiction to try the suit, inasmuch as no part of the cause of action arose within the jurisdiction of that Court. According to the defendant, the contract between the parties was entered into at Calcutta through Munilal Jha, who was admittedly one of the partners of the plaintiff firm. There was no agreement to pay the price at Katras and all payments had to be made at Calcutta on presentation of the relative bills and railway receipts. The defendant admitted that he had transactions with the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... despatches of coal used to be made by the plaintiff by railway and the railway receipts along with the bills used to be handed over to the defendant. In the absence of any other material on the record, it must be presumed that the deliveries of the consignment used to be made to the defendant within the territorial jurisdiction of the Dhanbad Court, where the consignments were booked by rail for transmission to the defendant. I may refer in this connection to Section 36 (1) of the Sale of Goods Act which provides that in absence of any express or implied contract between the parties, goods sold are to be delivered at the place at which they are at the time of the sale, and goods agreed to be sold are to be delivered at the place at which they are at the time of the agreement to sell, or, if not then in existence, at the place at which they are manufactured or produced. Reference may also be made to Section 39 of the Act which lays down that where, in pursuance of a contract of sale the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicate that it was Munilal Jha who had drawn some of the cheques in favour of the plaintiff and signed some of the vouchers as a partner of the defendant's firm. It was, therefore, urged that the plaintiff must have known that it was dealing with the defendant's firm and not with the defendant personally. But these documents are wholly insufficient to absolve the defendant from his liability towards the plaintiff. The evidence on the record shows that the plaintiff continued the despatches of coal as before in the name of the defendant. It has nowhere been suggested that the defendant had intimated to the plaintiff that he was no longer dealing with it in his individual capacity. It was, therefore, of no concern to the plaintiff to investigate whether Munilal Jha was making payments on behalf of the defendant personally or on behalf of the defendant's firm. The plaintiff was entitled to look to the jdefendant for its dues irrespective of whatever arrangement the defendant had made with Munilal Jha in connection with his coal business. Learned counsel relied upon a letter (Ex. E/2), dated the 31st March 1954, whereby the defendant intimated to the plaintiff firm the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the law, inasmuch as the plaintiff has not produced the original bills, but only their counterfoils (Exs. 7Z9 and 7Z10) and their accounts book (Ex. 6). According to the learned counsel, it was incumbent upon the plaintiff to lead evidence with respect to the individual transactions . We have looked into the counterfoil bills and the accounts book referred to above and we are satisfied that they were regularly kept in ,the course of business. This has not been disputed on behalf of the appellant before us. So far as the counterfoil bills are concerned, it is manifest that they were prepared simultaneously with the originals which were tendered to the defendant along with the railway receipts. These counterfoils therefore, prove the individual transactions, and reading them along with the entries in the khata Bahi (Ex. 6), they appear to me to constitute sufficient proof or the individual transactions. Besides, one of the partners of the plaintiff firm (P. W. 3) has pledged his oath to say that the dues of the plaintiff against the defendant amounted to ₹ 15,365-6-3 and that the claim of the plaintiff is true. It will be noticed that the defendant had not denied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question raised by the learned counsel was one of limitation. In its plaint, the plaintiff had set up a case that the account between the parties was a running account attracting the operation of Article 85 of the Limitation Act, but that was rightly not accepted by the trial Court which held that the suit was governed by Article 52 of the Limitation Act, 1908, which provided a period of three years from the date of the delivery of the goods as the period of limitation for a suit to recover the price of the goods sold and delivered, where no fixed period of credit, as in the present case, was agreed upon. Relying upon this finding of the trial Court, learned counsel for the appellant contended that all claims of the plaintiff in respect of supplies made prior to the 10th May 1954 were barred since the suit was instituted on the 10th May 1957. The view taken by the learned trial Court was that the bar of limitation was saved by the letter (Ex. 4/f), dated the 8th November 1954 (already referred to above) which constituted an acknowledgement within the meaning of Section 19 of the Limitation Act, 1908. - Exhibit 4 (f), it will be recalled, was written by the defendant to the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erformance of any condition upon which the promise to pay depended. In his letter (Ex. 4/f), the defendant did not put forward any condition which the plaintiff had to perform and upon which the defendant had promised to pay the dues of the plaintiff. The case of the defendant fell within the first proposition of Lord Justice Mellish, namely, an absolute promise to pay, because the defendant had admitted his liability to the plaintiff and agreed to arrange for the necessary payments after being furnished with the detailed statement of accounts. In Maniram's case, (1906) 33 Ind App 165 (PC), their Lordships pointed out that an unconditional acknowledgement has always been held to imply a promise to pay, because that is the natural inference if nothing is said to the contrary and that is what every honest man would mean to do. In this view, the letter (Ex. 4/f) is a clear acknowledgement of liability within the meaning of Section 19 of the Limitation Act, 1908. After the receipt of the plaintiff's notice of demand (Ex. 2), the defendant had made two payments by cheques, one Ex. 1 on the 21st December 1954 and the other Ex. 1 (a) on the 22nd January 1955. Evidently, these paym ..... X X X X Extracts X X X X X X X X Extracts X X X X
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