TMI Blog1990 (4) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... ps. Defendant 1 had supplied goods worth ₹ 2,79,965.14 ps. leaving outstanding a balance of ₹ 3,40,658.26 ps. The accounts were gone into and defendants had admitted the above position. In their balance sheet issued on, 13-11-1974, defendants had acknowledged the above liability. Despite demand the dues had not been paid. Hence this suit for recovery of the dues plus interest @ 21% per annum. The acknowledgement brought the suit within limitation. 3. Defendants denied the averments summarised above. Defendant 1 had once purchased goods worth ₹ 14,620.60 ps. and the price had been paid in full. There was no accounting or settlement of accounts. Plaintiff's accounts were not regularly maintained nor reliable. Plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as thus to be answered as 'yes'. 6. Having regard to the pleadings it becomes necessary to discuss issue Nos. 2 to 6 -- bar, the factor of limitation -- collectively. The plaintiffs stand is that it had dealings with defendants since 1966 and that in the course thereof, the latter became indebted to it to the extent of ₹ 3,40,658.26 ps. This was so admitted in the reckoning which took place in June 1972. In their balance-sheet dt. 13-11-1974 defendants acknowledged the existence of this liability. The written statement is a total denial of defendants having had any dealings with plaintiff except for a one-time cash purchase of goods worth ₹ 14,620.60 ps. Defendants have said nothing in relation to the acknowledgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But even if it be assumed that defendant 2 is physically not in a position to testify, the non-examination of defendant 3 and servants of defendant I gives rise to an adverse inference. What the extent of such inference will be is a different matter. This is the background in which the evidence has to be appraised. 7. P.W. 1's testimony is based upon entries made in plaintiff's account books backed by such documents as were traceable, and this, in the context of the great interval firstly between the events and the institution of the suit and secondly the latter and the commencement of the hearing. A great number of shortcomings arc said to vitiate the evidence at least to the extent of a major portion of the claim. The argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally elementary. The invoices tendered by P.W. 1 are not carbon copies and P.W. 1 has not explained how they came to be prepared. But against these shortcomings is the omission of the defendants to come into the witness box. It is not as if they have nothing to explain. If nothing else, P.W. 1's evidence shows that parties had been dealing with each other as far back as 1966, that a record of transactions between them was made, that a mutual accounting took place and that as late as 13-11-1974 defendant 1 through partner defendant 3, acknowledged the existence of its liability to the extent of ₹ 3,40,573.00. The question as to whether the acknowledgment was made within limitation or not, may be kept aside for the moment. By itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the expiry of period of limitation. Section 25(3) Contract Act validates a promise to pay a debt barred by limitation. This, it was argued, is not the stand of the plaintiff and cannot therefore be taken into consideration. The pleadings do not have to reflect legal submissions. They are to incorporate only the material facts. The making of the acknowledgment has been pleaded and this is cited as a reason for the claim in suit being within time. Not describing the acknowledgment as a promise would not deprive plaintiff of the right to have recourse to the legal provision applicable. I understand that after the expiry of the period of limitation nothing short of a clear promise can provide a fresh period of limitation. But such a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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