Sinha, J.:— This is a plaintiffs' appeal and arises out of a suit for recovery of Rs. 1,200 with interest at nine per cent per annum. The plaintiffs are commission agents and their case is that the defendant firm used to purchase cloth and metal wares from them. In 1931, the story further proceeds, the parties adjusted their accounts and a small sum was found due to the plaintiffs. On the 29th of October, 1931, the dealings between them restarted and continued up to the 28th of April, 1937. The plaintiffs supplied goods and the defendants also made payments from time to time, but a stage was never reached when the entire sum due to the plaintiffs was discharged.
The present suit was instituted on the 28th of August, 1939. The plaintiffs took their stand on three payments made on different dates. The first was a payment or Rs. 500 on the 23rd of August, 1954, the second of a sum of Rs. 1,000 on the 4th of September, 1935, and the last of Rs. 400 on the 3rd of November, 1936. The learned Munsif decreed the suit. The lower appellate court has, however, modified the decree and confined it to a sum of Rs. 158-4-0. It also awarded interest at the rate of 3¼ per cent per annum.
The learned Civil Judge of Bijnor held that the article applicable to the case was article 52 of the Limitation Act, which provides a period of three years from the date of the delivery of the goods.
The plaintiffs have come in appeal before us. They rely principally on the endorsement made on the last clay of payment viz. the 3rd of November, 1936, which is to the following effect: “Received Rs. 400, which shall be deposited in your khata.” This was signed by one of the defendants, Muhammad Yakub.
Mr. Shambhu Nath Seth, the learned counsel for the appellants, contends that there was one continuous transaction, although the dates of supply and the dates of payment might have been many and varied and the three payments did not refer to a particular supply; but referred to the supply in general. He relies on Bonsey v. Wordsworth(1), where it was held that:
“… where a tradesman has a bill against a party for any amount in which the items are so connected together that it appears that the dealing is not intended to terminate with one contract, but to be continuous, so that one item, if not paid, shall be united with another, and form one continuous demand, the whole together forms but one cause of action, and cannot be divided.”
What their Lordships were considering when they made this observation, was the question of jurisdiction, but not there question of limitation. The question of limitation invites a different consideration.
The starting point of limitation under article 52 of the Limitation Act is “the date of the delivery of the goods.” According to the plaintiffs, delivery means all the deliveries taken as a whole; according to the defendants each delivery gives an independent cause of action. The contention of the learned counsel for the defendants receives support from section 32 of the Sale of Goods Act, which provides that “the buyer shall be ready and willing to pay the price in exchange for possession of the goods.” This section casts an obligation upon the seller to “be ready and willing to give possession of the goods to the buyer in exchange for the price” and also upon the buyer to be ready with the price thereof. Article 52 has been the subject of adjudication in several cases and it is not necessary to go into further detail. It was held in Abdul Aziz v. Munna Lal(2), that:
“…. In the case of a tradesman's account the liability to pay for each item of goods delivered, either day by day or, week by week, is in the case of each item the date of the delivery of that particular item.”
This case was considered at length in Puttu Lal v. Jagannath(3) and their Lordships followed the principle laid down therein.
It has also been contended by the learned counsel for the appellants that the transactions between the parties, more particularly the language of the endorsement of the 3rd of November, 1936, imply “an agreement to the contrary” as contemplated bisection 32 of the Sale of Goods Act. If the law is clear that each delivery of goods gives rise to a cause of action immediately, one would have expected an agreement between the parties more precise and explicit in form. The argument of the learned counsel can be accepted only if the language of the endorsement is strained and something is read into it, which is not there in express terms. Atmaram Vinayak v. Lalji Lakhamsi, is in agreement with the view of this Court.
In Norton v. Ellam, Baron Parke observed: “The debt which constitutes the cause of action arises instantly on the loan.” The above case was noticed with approval in re George Francis v. Bruce. Both Norton v. Ellam and this case, no doubt, referred to a different set of circumstances and came strictly under article 57 of the Limitation Act, but the ratio of the decision will apply to a case under article 52.
The learned counsel for the appellants has relied on M.B Singh & Co. v. Sircar & Co.(4). The facts of that case were quite different and the ruling has no application to the facts of the case before us.
We, therefore, dismiss this appeal. The parties shall, under the special circumstances of the case, bear their own costs of this appeal and of the cross-objections.