S.K. Das JUDGMENT
A.K. Sarkar, J.
1. This appeal arises out of suit filed in the High Court of Jammu andKashmir for recovery of price of goods sold and delivered. The only pointinvolved in it is whether the suit was governed by art. 115 of the Jammu andKashmir Limitation Act. The courts below held, and this has not been disputedin this appeal, that if that article did not apply, the suit would fail on theground of limitation.
2. Sometime in November 1946, the parties entered into an agreement inwriting for the supply by the sellers, the respondents, to the buyer, theappellant, of 5,000 maunds of maize 500 maunds of wheat and 100 maunds of Dalat the rates and times specified. The agreement stated that on the date it hadbeen made the buyer had paid to the sellers Rs. 3,000 and had agreed to paya further sum of Rs. 10,000 within ten or twelve days as advance and thebalance 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 latter paid by the buyer tothe sellers.
3. Various quantities of goods were thereafter delivered by the sellers tothe buyer and though such deliveries had not been made strictly at the timesspecified in the contract, they had been accepted by the buyer. The buyer inits turn made various payments towards the price of the goods delivered but notmonths by month and had not further paid it in full. The last delivery of goodswas made on June 23, 1947, and the suit was brought on October 10, 1950, forthe balance of the price due.
4. The learned Judge of the High Court who learned the suit held that art.115 had no application and dismissed the suit as barred by limitation. Thesellers went up in appeal which was heard by two other learned Judges of theHigh Court. The learned Judges of the appellate bench of the High Court heldthat art. 115 of the Jammu & Kashmir Limitation Act applied and the suitwas not barred. They thereupon allowed the appeal and passed a decree in favourof the sellers. The buyer has now come up in appeal to this Court.
5. Article 115 of the Jammu and Kashmir Limitation Act which is in the sameterms as art. 85 of the Indian Limitation Act except as to the period oflimitation, is set out below :
6. If the article applied the suit would be clearly within time as the lastitem found to have been entered in the account was on June 23, 1947. The onlyquestion argued at the bar is whether the account between the parties wasmutual.
7. The question what is a mutual account, has been considered by the courtsfrequently and the test to determine it is well settled. The case of the TeaFinancing Syndicate Ltd. v. Chandrakamal Bezbaruah I.L.R (1930) Cal. 649,may be referred to. There a company had been advancing monies by way of loansto the proprietor of a tea estate and the proprietor had been sending tea tothe company for sale and realisation of the price. In a suit brought by thecompany against the proprietor of the tea estate for recovery of the balance ofthe advances made after giving credit for the price realised from the sale oftea, the ques........