Beaumont, C.J:—
This is a revision application from Full Court of the Small Cause Court, Bombay, and it raises an interesting question of limitation.
The facts found are that the plaintiff is a grain dealer, and between October, 1933, and October, 1934, he supplied grain oil a number of dates to the defendant. The dates were quite irregular, but there were deliveries during every month, and the defendant paid certain sums on account, the payments being for various amounts, and on irregular dates, and in this suit, which was filed on October 2, 1937, the plaintiffs sue for the balance due. The case was tried by Judge Nadkami, who gave a long judgment holding that the bulk of the claim was barred by limitation. The view he took was that the plaintiff had a separate cause of action in respect of each consignment of grain delivered, and that under Art. 52 limitation ran from the date of the delivery of each consignment, and therefore the suit was barred in respect of deliveries made more than three years before the commencement of the suit.
In the Full Court the first judgment was given by Judge Champaklal Mody. He held, on the authority of certain English cases, that the plaintiff had only one cause of action for the whole amount due for the goods sold and delivered, and that time ran from the date of delivery of the last consignment. The learned Chief Judge, who formed the other member of the Court, agreed with Judge Champaklal Mody that the plaintiff had only one cause of action, but he felt a difficulty in applying Art. 52 under which time runs, not from the date of the accrual of the cause of action, but from the date of delivery of the goods, and he came to the conclusion that the plaintiff's claim was really, not for the price of goods sold and delivered, but for the balance due at the foot of an account, and that the case fell within Art. 115 and did not fall within Art. 52. He, therefore, agreed with the conclusion at which his learned colleague had arrived.
Having read those three judgments with care and heard the case argued I agree in part with the reasoning of Judge Champaklal Mody, and in part with the reasoning of the learned Chief Judge, but with the conclusion of Judge Nadkarni.
The case is one of importance because it is a type of case which very frequently arises in the Small Cause Court as the trial Judge points out. The plaintiff's cause of action is in my opinion for the price of goods sold and delivered, and I can see no ground for saying that the claim is not a claim for the price of goods sold and delivered, but is for the balance due at the foot of an account. The evidence was of sale and delivery of goods and there was no evidence that the defendant ever had any account submitted to him, or that he ever agreed to be bound by any account, and the mere fact that he paid moneys on account of what was due from time to time, for which he was given credit, cannot alter the nature of the plaintiff's cause of action. But for the difficulty of applying Art. 52 I doubt if it would have occurred to the learned Chief Judge to suggest that the cause of action was for moneys due on an account. But though I think that the cause of action is for the price of goods sold and delivered, I agree with Judge Champaklal Mody in thinking that there is only one cause of action for the whole amount due.
The principle to be applied has been laid down in various English cases which have been followed in India. That principle is stated very clearly in Bonsey v. Wordsworth in these terms (p. 334):—
“…. 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.”
The principle was explained by Manning in his note to Dood v. Wigley in the following terms (p. 114):—
“Where goods are ordered of a tradesman on 1st January and distinct orders for other goods are given on 2nd, 3rd, 4th, 5th, etc., if from the previous dealings between the parties or from general usage or otherwise it is to be inferred that it was to be contemplated by the parties that in the event of the dealings continuing the several items would be included in the monthly, quarterly or yearly bills, the result of such an arrangement and the legal position of the parties seems to be upon the delivery and acceptance of the first packet of goods delivered on 1st January an entire contract is created and a complete cause of action accrues the tradesman being under no engagement to sell other goods or to give credit beyond the price of the articles then delivered; when on a subsequent day other goods are delivered a new contract arises not simply a contract to pay for the goods then delivered but a new entire contract by which the tradesman waives his existing right to payment of the goods delivered on 1st January and the purchaser agrees to pay for both parcels as upon one entire sale. After the successive waiver and extinguishment of each preceding contract the only subsisting contract and cause of action ex contractu will be the last.”
I think that principle is right. It would be monstrous in a case of this sort if the plaintiff were to be at liberty to file independent suits in respect of each consignment of goods. The principle was accepted in India by Sir Lawrence Jenkins in Kedar Nath Mitra v. Dinabandhu Saha, and it has been applied also in other cases in India. Therefore, I accept the argument of Mr. Hathi that his cause of action is a single cause of action for the price of all the goods delivered down to the date of the last delivery.
But then we have to see how limitation affects the question. This is clearly not a case in which any fixed period of credit was allowed which would bring the case within Art. 53. In my opinion the case falls within Art. 52, which provides that for the price of goods sold and delivered, where no fixed period of credit is agreed upon, the period of limitation is three years from the date of the delivery of the goods.
Now, I cannot agree with Judge Champaklal Mody that you can read Art. 52 as applying to the date of the delivery of the last consignment; on that point I agree with the learned Chief Judge. The Court may be justified in implying a contract to suit the facts, but the Court cannot alter facts to fit a contract. These goods were not delivered on the date of the last delivery; they were delivered on various dates during the preceding year, and one cannot alter that fact, nor can one read Art. 52 as if the starting point of time was the accrual of the cause of action. The starting point of time is the date of the delivery of the goods, and it seems to me that, although the cause of action is one for the price of all the goods delivered, the Court is bound to check the various items which go to constitute that cause of action and to apply Art. 52 to deliveries which took place more than three years before the filing of the suit. That was the result at which the learned trial Judge arrived.
But, it is said, that there is a decision of this Court against that view, which decision bound the learned Judges of the Small Cause Court, though, being a decision of a single Judge, it does not bind this Court. The decision I refer to is Najan v. Salemahomed. It is a decision of Mr. Justice Mulla, as he then was. The facts of the case were by no means similar to the facts in the present case, but so far as limitation was concerned it was a case in principle not unlike the present. Sir Dinshaw Mulla dealt with the question in these terms at p. 1003. He says:—
“As regards the question whether the plaintiffs' claim in respect of the items prior to June 7, 1917, is barred by limitation, I have no doubt that it is not. Both the plaintiffs and the defendants kept only one account of the transactions from the date of exhibit A.”
Then after quoting the passage from Bonsey v. Wordsworth, which I have already quoted, Sir Dinshaw goes on (p. 1004):—
“It is clear from the passage cited above that if all the items form but one cause of action, it is idle to suggest that a part of it can be barred by limitation, and that the rest may not be so barred. In fact counsel for the defendants, at a later stage of the proceedings, gave up the contention as to limitation.”
Now, I am unable to agree with that view of Sir Dinshaw Mulla. I think that for the moment he forgot the principle with which no one was more familiar than he, viz., that limitation, in the absence of express enactment, does not destroy the right, it only bars the remedy. No doubt, you cannot have a cause of action which is good in part, and bad in part. But it seems to me that you may have, and frequently do have, for example in claims for mesne profits, a cause of action which is enforceable in part, and unenforceable in part. Here there is one cause of action for the price of all the goods delivered. It is a perfectly good cause of action and if the plaintiff had received the price for the whole amount he could have kept it, and if he had got a lien to secure the price he could retain that lien, but he cannot bring a suit to enforce the cause of action relating to goods delivered more than three years before the filing of the suit. That seems to me to be the plain effect of art. 52.
Therefore, as I have said, I agree with the conclusion at which the learned trial Judge arrived, though for different reasons. I think the plaintiffs' claim is barred in respect of all goods delivered more than three years before the filing of the suit.
The application will be allowed with costs both here and in the Full Court. The plaintiffs to refund to the defendant the excess over Rs. 5-14-6 paid by the defendant into Court.
Wassoodew, J.:—I agree.
Rule made absolute.
J.G.R