1985 PLP 1217 (CLC)

This second appeal has called into question the judgments and decree of the VIIth Civil Judge, Karachi, and Additional District Judge, Karachi, respectively dated 2-12-1966 and 5-9-1967 dismissing the suit for recovery of Rs. 16,268.24 filed by the appellant is time barred and also on the ground that clear picture of the claim of the plaintiff is not given.

2. The appellant had appointed the respondent as its clearing agent on 15-6-1961. Some amounts are alleged to have been paid by the appellant to the respondent, some work as clearing agent is alleged to have been done by the respondent. In the suit filed by the appellant on 1-2-1965, it was claimed that there was open, mutual and current account between the parties and that last bill was submitted by respondent on 29-6-1962 for which credit entry was made by the appellant in ledger in favour of the respondent on 30-6-1962. The respondent had resisted the said suit and claimed that there was no mutual, open and current account and that the suit was time-barred. It was further stated that the bills submitted by respondent were never finalized and that even after 30th June, 1962 the bills of the respondent of Rs.31,988.75 were pending payment and that the plaintiff had kept false ledger account.

3. Issues are framed between the parties of which important were whether the suit was barred by limitation and whether the plaintiff paid to the defendant certain sum of money and what is due to the plaintiff from defendant. Appellant examined their Accounts Officer and produced ledger book on 1-9-1962 containing entries at page 288 as Exh. 6 and he stated that Rs.32,252.88 had been paid to the respondents. He also produced a number of documents and journals showing payment to the respondent and he stated that after deducting the amount of bills given by the defendant Rs.16,268.24 is outstanding against the respondent for which he relied upon the entries in the ledger Exh.6. He also produced the last bill of the respondent Exh.8 and stated that the same had been adjusted on 30-6-1962. He also produced six copies of journals to authenticate the entires of Exh.6. In cross-examination i.e admitted that respondent used to pay wharfage import duty, sales tax and other necessary charges after collecting the amount from plaintiff taut he was not in a position to say as to how much amount was paid to respondent from 15-6-1961 to 13-6-1962. He brought bills of respondent Exh.10/1 to Exh. 10/24 which were from January, 1962 onwards. He admitted that there were other bills also with him prior to that period. He admitted that he had not brought unpaid bills. He showed his lack knowledge of 19 bills carrying numbers 61 to 88 had been paid or riot and that whether these bills have been accounted for in the statement. He admitted that on 14-12-1961 the account of respondent Showed credit of Rs.381.66 with them.

4. No person had been examined on behalf of the respondent. Both the Courts have decided the limitation point against the appellant and have come to the conclusion that there was no open mutual and current account between the parties and that there was only one way traffic. They hold that there was no independent transaction between them and that in the present case the appellant was always principal and defendant ors agent. They found that last payment was made by plaintiff to defendant on 2-1-1962 and therefore suit was barred on 1-1-1968, applying Article 62 of the Limitation Act. They did not apply Article 85 of the Limitation Act because they did not find open mutual and current account existing. However, I find that the most important document in the case produced by the appellant which could be regarded as the basis of accounting between the parties was the ledger Exh.6 but the same had been completely left out of consideration by the two learned Courts below.

5. It was held in P L D 1962 Dacca 1, that if there is reciprocal demand between the parties then Article 85 is attracted in the case. In I L R 10 Mad. 199 it was held that where the account maintained by the defendant showed reciprocal demands between the plaintiff and defendant then the said account was mutual open and current account. It appears to me that while deciding the question of limitation it was necessary or the two Courts below to deal with ledger Exh. 6 and then give a finding whether there was mutuality of accounts between the parties or not. If the ledger shows that some times the appellant has been shown as creditor and sometimes the debtor, then obviously it would be regarded as mutual open and current account and I find some basis for this, when in cross-examination the witness had stated that an 14-12-1961 the account of respondent showed credit of Rs. 381.66 with plaintiffs. And of course it was the claim of the plaintiff that on 30-6-1962 they had a credit balance of Rs.16,268.24. However, the state of account between the parties could not be decided by the two lower Courts merely on the basis of hypothesis and it was necessary for them to take Exh.6 into consideration which they have filed to do bind hence their decisions on the point of limitation is clearly erroneous tend needs to be set aside. But this alone is not conclusive of appeal.

6. In respect of the issue of the actual amount which is due to the appellant from the respondent I find that observations of the two Courts below that the appellant had failed to properly prove that Rs.16,268.24 was in fact due to them appears to be justified on the facts as brought out on the record. All the bills of the respondent which had been submitted to the appellant had not been produced and the witness o f the appellant had not made a clear statement that those bills we r either false or that they were unjustified and, therefore, the appellate Court had rightly remarked that the appellant had failed to prove that the unpaid bills of the respondent were false bills.

7. Mr. Miranda who appeared for the appellant had admitted in cross-examination that he had not brought unpaid bills in Court and he was not aware if 19 bills carrying number 61 to 88 have been paid or not. And further he could not say whether these bills have been accounted for in the statement. And even in respect of bill 33 he was not able to make a clear statement he further admitted that they had not received bills of refugee or licensee fee from the respondent and, therefore, they had not credited the amount in the said account. And his statement in cross-examination, when seen injuxtaposition with the statement which he made in the examination-in-chief, to the effect that respondent used to pay wharfage, import duty, sales-tax and other necessary charges after collecting the amount from them shows that the correct and upto date statement of accounts were not produced by the appellant before the Court. Moreover 1 find that there is on record a letter dated 11-2-1968 from appellant to the respondent which shows that the respondent owed Rs.19,993.19 as claimed by the appellant in their letter and this state of affairs is of a date much later to 30th June, 1962 when according to the appellant the account was closed and the appellant have claimed that on that day viz. 30-6-1982 the respondent owed to the appellant Rs.16,268.24. No explanation has been offered by the witness of the appellant about the discrepancy in the figure of Rs. 19,993.19 as claimed on 11-2-1963 and the figure of Rs. 16,268.24 as shown to be due to the appellant from the respondent on 30th June, 1962 and finally claimed by them in their plaint filed in 1965. This account shows that the account maintained by the appellant appeared to be discrepant and hence the decree would be passed on its basis.

8. The net result therefore is that although the appellant has to succeed on the point of limitation but they cannot succeed on the question of fact of the amount actually due to them, therefore, this appeal has to be finally dismissed. Since the result is partial success and partial .failure, therefore, there will be no order as to costs. M.A.K.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.