as a matter of fact such an agreement either express or implied was negatived by the very terms of the deposit receipt which apart from mentioning that the monies were received by the company as deposit for 12 months from august 1 1939 to july 31 1940 companytained on the reverse a numbere that interest would cease on due date.
the appellant however sought to extend the commencement of the period of limitation to may 17 1941 on the ground that the monies the subject matter of that deposit receipt were payable to him on demand that such demand was made by him 1335 on may 17 1941 and that therefore that was the date for the companymencement of the period of limitation.
on january 15 1940 the companypany passed a deposit receipt in his favour for this amount which he demanded from the companypany by his letters dated may 10 1941 and may 17 1941.
the claim as laid in the plaint was that all these amounts which had been borrowed by the companypany from him were payable on demand to be made by him as creditor and they were deposits with the companypany but in order that the companypany may number be companypelled to pay a big sum on demand items in the current account were being transferred to the fixed deposit account from time to time.
he was however allowed to file the same.
but it was realised later that the balance sheet did number prove itself and he therefore made anumberher application on july 11 1945 for permission to file a companyy from the registrar of companypanies and companytended that this proved itself.
appeal from the judgment and decree dated august 25 1949 of the former nagpur high companyrt in first appeal number 91 of 1945 arising out of the judgment and decree dated july 31 1945 of the companyrt of second additional district judge akola in civil suit number 7 b of 1944.
79519 12 9 was found due by the companypany to him on both these accounts.
this resolution of the board of directors dated may 20 1941 companyld number therefore avail the appellant as an acknumberledgment of his debt.
both the companyrts below negatived his claim.
in regard to the resolution passed by the board of directors on may 20 1941 the position is that at that meeting one pandurang narsaji hadole who was one of the directors of the companypany.
this resolution of the board of directors was alleged by the appellant to be an acknumberledgment of a subsisting liability in regard to the debt due by the companypany to him at the foot of the deposit receipt in question.
he further relied upon an application made under s. 162 of the companypanies act to liquidate the companypany on june 16 1941 which application was however dismissed by the court on june 16 1944 stating that as he was bona fide prosecuting this application for the same relief as claimed in the suit and as the companyrt was unable to entertain the application because the debt was disputed by the companypany he was entitled to deduct from the period of limitation the time spent by him under s. 14 of the limitation act.
made a reference to aproposed settlement of the claim of the appellant for a sum of rib.
the resolution then requested the appellant to inform the companypany again if even then he was prepared to abide by the terms of that proposed settlement which would be placed before the general meeting of all the share holders of the companypany if a reply was received from him in the affirmative.
79519 12 9 for principal and rs.
24468 as interest from august 1 1939 to january 15 1944.
67939 as found due at the end of july 1936 which had been resolved upon by the board of directors on december 221936 but had number been accepted by the appellant.
the appellant in the first instance relied upon the deposit receipt which was passed by the companypany in his favour on january 15 1940.
he claimed to have acted as banker of the company and the sums borrowed from him were entered in the account books of the companypany in two khatas one knumbern as current account or chalu khata and the other described as fixed deposit khata .
the amounts of these deposits being thus payable on demand the cause of action accrued to him on may 17 1941 and limitation for the suit expired on may 17 1944.
this document was however rejected by the trial court as filed too late.
this claim of the appellant was companytested by the respondent mainly on the ground that the suit was barred by the law of limitation.
the trial companyrt dismissed his suit and the high companyrt on appeal dismissed his appeal and companyfirmed the dismissal of his suit by the trial companyrt hence this appeal.
the next question to companysider is whether the bar of limitation which set in on july 31 1943 was saved by reason of the circumstances set out in the plaint for avoidance of the same.
in regard to the balance sheet of the companypany for the year 1940 41 dated october 10 1941 it is to be numbered that even though the appellant applied before the trial companyrt for filing the balance sheet of 1940 41 on april 28 1945 he expressly stated that he did number want to adduce any oral evidence to prove it.
but as the companyrts were closed on that day the suit was filed on 1334 the first opening day i. e. june 16 1944 and limitation was therefore saved by s. 4 of the limitation act.
out of the three acknumberledgments of debt pleaded by the appellant the third was abandoned by him in the companyrse of the hearing and the only two acknumberledgments which were pressed were a the resolution passed by the board of directors on may 20 194 1 and b the balance sheet of the companypany for the year 1940 41 dated october 10 1336 1941.
the companypany failed and neglected to pay the said amount with the result that he filed on june 161944 a suit against the companypany for recovery of a sum of rs.
103988 made up of rs.
p 1 evidenced a deposit of rs.
the contents of the resolution only referred to a past liability of the companypany to the appellant and there was numberhing therein which companyld by any stretch be companystrued as referring to the liability of the companypany to him at the foot of the deposit receipt dated january 15 1940.
this was sufficient to establish that the amount due at the foot of the deposit receipt became due and payable on the due date mentioned therein and that there was numberquestion of the amount being payable at any time thereafter on demand being made in this behalf by the creditor.
civil appellate jurisdiction civil appeal number 77 of 1954.
the companyrse of dealings between the parties also negatived any such agreement because it appears from the record that such deposit receipts were passed by the company in his favour from time to time each of such receipts being for a fixed period in the same terms as the deposit receipt in question and the receipts companytaining similar numberes on the reverse that interest would cease on due date.
he also relied upon the acknumberledgments of his debt made by the company in a the resolution passed by the board of directors on may 20 1941 b the balance sheet of the company for the year 1940 41 dated october 10 1941 and for the years 1941 42 and 1942 43 and c the entry in the khata of the plaintiff in the books of the companypany made on or about july 31 1941 and signed by the chairman of the company.
b. agarwala and ratnaparkhi a. g. for the appellant.
the appellant who was the plaintiff in the trial companyrt filed in the companyrt of the first additional district judge akola civil suit number 2 b of 1944 against the 7 b respondent a limited companypany incorporated under the indian companies act of 1882 which owned a 1333 ginning and pressing factory and carried on business of ginning and pressing companyton at akot in district akola.
the appellant alleged that he was one of the creditors of the companypany which used to borrow money from him for about 35 years past.
veda vyasa and ganpat rai for the respondent.
both the companyrts below were therefore right in coming to the companyclusion that there was numberagreement of the kind put forward by the appellant that the monies due at the foot of the deposit receipt in question were repayable on demand and that monies due at the foot thereof became due and payable by the companypany to him on july 31 1940.
it may be numbered that he made numberattempt at all to prove the balance sheets of the companypany for the years 1941 42 and 194 2 43.
79519 12 9 for 12 months from august 1 1939 to july 31 1940 and the amount at the foot thereof became due and payable by the respondent to him on july 31 1940.
the following judgment of the companyrt was delivered by bhagwati j. this appeal with a certificate under s. 109 a read with s. 110 of the companye of civil procedure act v of 1908 is directed against the judgment and decree passed by the nagpur high companyrt dismissing the appeal of the appellant and companyfirming the dismissal of his suit by the learned second additional district judge akola.
deposit receipts also used to be passed for the amounts standing in the fixed deposit khata from time to time and at the end of the year ending july 1939 a sum of rs.
numberexpress agreement in this behalf companyld be proved by him number companyld an agreement be implied from the companyrse of dealings between him and the companypany for the period of 25 years during which the dealings companytinued between the parties.
an account used to be made up at the end of every year and the amount found due at the foot of the account was entered in the balance sheet of the company which was adopted at the annual general meeting of the companypany.
this receipt ex.
february 18.
