THE HINDUSTAN FOREST COMPANY versus LAL CHAND AND OTHERS

SARKAR J.-This appeal arises out of a suit filed in the High Court of Jammu and Kashmir for recovery of price of goods sold and delivered. The only point involved in it is whether the suit was governed by art. 115 of the Jammu and Kashmir Limitation Act. The courts below have held, and this has not been disputed in this appeal, that if that article did not apply, the suit would fail on the ground of limitation.

p. 564

Sometime in November 1946, the parties entered into an agreement in writing for the supply by the sellers, the respondents, to the buyer, the appellant, of 5,000 maunds of maize, 500 maunds of wheat and 100 maunds of Dal at the rates and times specified. The agreement stated that on the date it had been made the buyer had paid to the sellers Rs. 3,000 and had agreed to pay a further sum of Rs. 10,000 within ten or twelve days as advance and the balance due for the price of goods delivered, after the expiry of every month. It is admitted that the said sum of Rs. 10,000 was later paid by the buyer to the sellers.

p. 564

V a.rious quantities of goods were thereafter delivered by the sellers to the buyer and though such deliveries had not been made strictly a.t the times specified in t e contract, h they had been accepted by the b uyer. The buyer in its turn made various payments towards the price of the goods delivered but not month by month and had not further paid it in full. The last delivery of goods was made on June 23, 1947, and the suit was brought on October 10, 1950, for the ha.lance of the price due.

p. 565

The learned Judge of the High Court who heard the suit held that art. 115 had no application and dismissed the suit as barred by limitation. The sellers went up in appeal which was heard by two other learned Judges of the High Court. The learned Judges of the appellate bench of the High Court held that art. 115 of the Jammu & Kashmir Limitation Act applied and the suit was not barred. They thereupon allowed the appeal and passed a decree in favour of the selJers. The buyer has now come up in appeal to this Court.

p. 565

Article 115 of the Jammu and Kashmir Limitation Act which is in the same terms as art. 85 of the Indian Limitation Act except as to the period oflimitation, is set out below :

p. 565

If the article applied the suit would be clearly within time as the last item found to have been entered in the acc0t~nt was on June 23, ~947. The only question argued at the bar is whether the account between the parties was mut,ual.

p. 565

The question what is a mutual account, has been considered by the courts frequently and the test to determine it is well settled. The case of the Tea Financing Syndicate Ltd. v. Ohandrakamal Bezbaruah (1) may be referred to. There a company had been advancing monies by way of loans to the proprietor of a tea estate and the proprietor had been sending

pp. 565–566

h £ 1 d l' · tea to t e company or sa e an rea isat10n of the price. In a suit brought by the company against the proprietor of the tea estate for recovery of the bale.nee of the advances made after giving credit for the price realised from the sale of tea, the question a.rose as to whether the case was one of reciprocal demands resulting in the account between the parties being mutual so as to be governed by art. 85 of the Indian Limitation Act. Rankin, C.J., laid down at p. 668 the test to be applied for deciding the question in these words:

p. 566

" There can, I think, be no doubt that the requirement of reciprocal demands involves, as all the Indian cases have decided following Halloway, A.C.J., transactions on each side creating independent obligations on the other and not merely transactions which create obligations on one side, those on the other being merely complete or partial discharges of such obligatidns. It is further clear that goods as well as money may be sent by way of payment. We have therefore to see whether under the deed the tea, sent by the defendant to the plaintiff for sale, was sent merely by way of discharge of the defendant's debt or whether it was sent in the course of dealings designed to create a credit to the defendant as the owner of the tea sold, which credit when brought into the account would operate by way of set-off to reduce the defendant's liability."

p. 566, margin C

The observation of Rankin, C.J., has never been dissented from in our courts and we think it le.ya down the law correctly. The learned Judges of the appellate bench of the High Court also appear to have applied the same test as that laid down by Rankin, C.J. They however came to the conclusion that the account between the parties was mutual for the following reasons:

p. 566, margin C

" The point then reduces itself to the fact that the defendant company had advanced a certain a.mount of money to the plaintiffs for the supply of grains. This excludes the question of monthly payments being made to the plaintiffs. The plain- . tiffs having received a certain amount of money, they became debtors to the defendant company to this extent, and when the supplies exceeded Rs. 13,000 the defendant company became debtors to the plaintiff and later on when again the plaintiff's supplies exceeded the amount paid to them, the defendants again became the debtors. This would show that there were reciprocity of dealings and transactions on each side creating independent obligations on ther other."

pp. 566–567, margin C

The reasoning is clearly erroneous. On the facts stated by the learned Judges there was no reciprocity of dealings; there were no independent obligations. What in fact had happened was that the sellers had undertaken to make delivery of goods and the buyer had agreed to pay for them and had in part made the payment in advance. There can be no question that in so far as the payments had been made after the goods had been delivered, they had been made towards the price due. Such payments were in discharge of the obligation created in the buyer by the deliveries made to it to pay the price of the goods delivered and did not create any obligation on the sellers in favour of the buyer. The learned Judges do not appear to have taken a contrary view of the result of these payments.

p. 567

The learned Judges however held that the payment of Rs. 13,000 by the buyer in advance before delivery had started, made the sellers the debtor. of the buyer and had created an obligation on the sellers in favour of the buyer. This apparently was the reason which led them to the view that there were reciprocal dem:l.nds and that the transactions had created independent obligations on each of the parties. This view is unfounded. The sum of Rs. 13,000 had been paid as and by way of advance payment of price of goods to be delivered. It was paid in discharge of obligations to arise under the contract. It was paid under the terms of the contract which was to buy goods and pay for them. It did not itself create any obligation on the sellers in favour of the buyer ; it was not intended to be . and did not amount to an independent transaction detached from the rest of the contract. The sellers were under an obligation to deliver the goods but that obligation arose from the contract and not from the payment of the advance alone. If the sellers had failed to deliver goods, they would have been liable to refund the monies advanced on account of the price and might also have been liable in damages, but such liability would then have arisen from the contract and not from the fact of the advances having been made. Apart from such failure, the buyer could not recover the monies paid in advance. No question has, however, been raised as to any default on the part of the sellers to deliver goods. This case therefore involved no reciprocity of demands. Article 115 of the Jammu and Kashmir Limitation Act cannot be applied to the suit.

pp. 567–568

The learned Judges appear also to have taken the view that since the goods were not delivered at the times fixed in the contract, and the prices due were not paid at ·the end of the months, the parties clearly indicated their intention not to abide by the contract. We are unable to agree with this view. Such conduct only indicated that the parties had extended the time fixed under the contract for delivery of the goods and payment of price, leaving the contract otherwise unaffected.

p. 568

The learned Judges also observed that the contract did not provide how the amount advanced was to be adjusted. But it seems clear that when the contract provided that the advance was towards the price to become due, as the learned Judges themselves held, it followed by necessary implication that the advance had· to be adjusted against the price when it became due. So there was a provision in the contract for adjusting the advance.

p. 568

We think it fit also to observe that it is somewhat curious that any question as to the application of art. 115 was allowed to be raised. The applicability of that article depends on special facts. No such facts appear in the plaint. There is no hint there that the account was mutual. We feel sure that if the attention of the learned Judges of the High Court had been drawn to this aspect of the matter, they would not have permitted any question as to art. 115 being raised, and the parties would have saved considerable costs thereby.

pp. 568–569

We therefore come to the conclusion that the appeal must be allowed. The judgment and order of the learned Judges of the appellate bench of the High Court are set aside and those of the learned Single Judge of the High Court are restored. The appellant will be entitled to the costs in this Court and of the hearing of the appeal before the High Court.

p. 569

Appeal allowed. SHIV A JUTE BALING LIMITED

p. 569

v. HINDLEY AND COMPANY LIMITED (B. P. P. B. and

p. 569

K. N. W JJ.)

p. 569

Arbitration-Contract--Award passed pending legal proceedings challenging the existence and validity of contract-Validity-Breach of contract-Contract providing for penalty liquidated damages- Award granting maximum-Legality--Indian Contract Act, r872

p. 569

of r872), 73, 74-Arbitration (Protocol and Convention Act, I937 of r937) 7(e)-Arbitration Act, r940 of I940), 33, 35·

p. 569

The appellant company, incorporated in India, entered into a contract on June 18, 1945, for the supply of five hundred bales of jute, with the respondent company which was incorporated in England and which had its registered office in London. The contract, inter alia, provided that in the event of default of tender or delivery, the seller shall pay to the buyer as and for liquidated damages ms. per ton plus the excess (if any) of the market value over the contract price, the market value being that of jute contracted for on the day following the date of default. There was a provision for arbitration, under which any claim or dispute whatever arising out of, or in relation to this contract or its construction or fulfilment shall be referred to arbitration in London in accordance with the bye-laws of the London Jute Association. Disputes having arisen regarding the performance of the contract the respondent referred the matter to the arbitration of the London Jute Association, who appointed two of its members as the arbitrators. The appellant not reply to the notice given by the arbitrators but filed an application on

p. 569