TaxTMI 
TaxTMI 
1999 (8) TMI 996
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.... of that judgment that is being questioned in this appeal before this Court by the defendants. 2. The brief facts on which the plaintiff went before the lower court seeking the decree are as follows: One of the incidents of the business of the plaintiff is waste paper, which he has been selling to third parties for price. The defendants have been purchasing waste papers from the plaintiff. The plaintiff and the defendants had a running account in respect of such dealings. The account maintained between the parties would contain a debit entry against the defendants and when payments come from the defendants, there will be credit entry in their favour. The defendants were making payments for the bills of the plaintiff with reasonable regularity. However from 16.10.1981 the defendants stopped their transaction with the plaintiff including purchase of waste papers. As on 1.12.1981 according to the accounts, a sum of ₹ 65,551.74 in due and payable by the defendants to the plaintiff in respect of the dealings referred to above. In spite of the demands the defendants did not clear off their outstandings. The plaintiff sent a notice dated 7.12.1981 to the defendants demanding payme....
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.... are fully aware about the same. The plaintiff is not in possession of any sum as claimed by the defendants on the sales tax account. The transactions between the parties are commercial in nature and the plaintiff is entitled to claim the market rate of even 21% interest in respect of the money due. However they have restricted their claim for interest only to 18%. The relief claimed in the plaint is within the period of limitation." 4. On the side of the plaintiff two witnesses were examined as P.Ws.1 and 2 and as many as 41 exhibits were marked as Exs. A.1. to A. 41. On the side of the defendants no oral evidence was let in and one exhibit was marked as Ex.B.1 series. On the materials available on record, the learned trial Judge framed the following issues: (a) Whether the suit claim is barred by limitation? (b) What is the amount due to the plaintiff from the defendants? (c) Whether the plaintiff is entitled to interest and if so, at what rate and from which date? (d) To what relief the plaintiff is entitled to? On issue Nos. 2 and 3 the learned trial Judge found that the defendants are liable to pay the sum as claimed in the plaint and the defendants are liable t....
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....ing in such materials (the plaintiff had filed application before this Court seeking an amendment setting out the grounds to save the suit from the law of limitation), cannot be allowed since it will change the entire cause of action. The learned counsel for the defendants would also contend that the acknowledgments relied upon by the plaintiffs are not acknowledgments in the eye of law and in any event it not having been given by the defendants to the plaintiff, cannot be acted upon at all as acknowledgments of liability. Lastly the learned counsel for the defendants would contend that the acknowledgments of liability having been not set out in the plaint and having not been proved to have been signed by the defendants, they carrot he relied upon at all. 6. The learned counsel for the plaintiff would contend that the stringent requirement of pleading the saving grounds from the law of limitation as originally contemplated under Order 7, Rule 6 of the C.P.C. had been mellowed down by adding the proviso to that Section by amending Act 104 of 1976. Therefore according to him the court's power to permit the plaintiff to claim exemption from the law of limitation on any ground not....
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....09.90 29/08 By cheque received towards account 10,000.00 31/10 To sale of waste as per B. No. 130 dated 20.10.78 19,783.00 06/11 By Cheque received towards account 19,783.00 The last transaction between the parties is dated 16.10.1981. During the period namely, from 30.12.1978 to 16.10.1981, I find a number of debit and credit entries, each debit entry representing the value of the goods sold, delivered and claimed under a bill and each credit entry representing the payments made in respect of each bills raised. In other words the debit and the credit entries commencing from 30.12.1978 and ending with 16.10.1981 cancels each other. Therefore the contention of the learned counsel for the defendants that each bills raised had been separately paid and there is no running account or mutual current account, is correct. It is no doubt true that from entries extracted above, it is seen that the payment made on 29.8.1978 and 6.11.1978 were towards account, though the last payment was exactly in cancellation of the earlier debit entry. As the creditor has a choice, the appropriation in the absence of any instruction, of the payment made on 6.11.1978 towards accounts as shown ....
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....alance sheet and the list of sundry creditors. In a case reported in Raja of Vizianagaram v. Official Liquidator, AIR1952Mad136 it has been held as follows: "Debt due to certain creditor included in the item relating to sundry creditors as contained in the balance-sheet of the company - Balance Sheet contains an acknowledgment to the particular creditor 1949 (2) KBD 700 Rel. on" The law laid down by the two learned Judges of this court in the above judgment squarely applies to the case on hand as well and therefore I have no difficulty at all in holding that the documents referred to above and relied upon by the plaintiff as constituting acknowledgments of liability, are really acknowledgments of liability strictly in accordance with section 18 of the Limitation Act and they constitute acknowledgments of liability on which the plaintiff can rely upon. To the same effect is the judgment of the Punjab High Court in a judgment reported in Lahore E & S Co. v. A.K. Bhalla, MANU/PH/0099/1958. In the said judgment it has been held as follows: "Debts due 10 creditors not mentioned by name but included in the item relating to "Loans (unsecured)" or as due to &qu....
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....d in the specified exhibits referred to above, would not by itself lead this court to hold that those documents would not constitute acknowledgments of liability. 11. In a case reported in Somanna v. Subba Rao, MANU/AP/0077/1957MANU/AP/0077/1957 : A.I.R. 1958 A.P. 200 certified copied of income tax returns are held to be public documents. It has been held in that case as follows: "(b) Evidence Act (1872), Ss. 67, 65, 74 - Income tax documents -Certified copies - Proof of signature. Certified copies of Income Tax returns relating to a firm and statements filed in support of them, being public documents in the custody of a public officer, may be presumed to be what they purport to be. It is unnecessary to prove signatures of the particular partners on the originals." In the case on hand the official witness namely, P.W.2 had spoken to about the income tax returns. The documents evidencing acknowledgment of liability are from 31.3.1976 and it runs continuously through the subsequent financial year ending with 31.3.1982. Since the suit has the suit is well within time. 12. Coming to the question of absence of grounds reflected in the plaint to save the case from the law o....
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....of evidence or other material before the court. The words "may permit" in the proviso indicate that the court has got a discretion either to permit or not to permit the appellant-plaintiff to claim exemption having regard to the facts and circumstances of each case and the plaintiff shall not be treated as having an absolute right to claim exemption on any material which is not pleaded in the plaint. In the instant case, in view of the pleadings and the materials on record and of the fact that the defendant who was liable to the suit claim was ex parte thereby admitting it High Court allowed the appellant to rely on acknowledgment on the basis of the proviso and decreed the suit." 13. It is no doubt true that in this case that plaintiff had not pleaded any ground saving the suit from the law of limitation. But however he had produced evidence before the lower court. There was no contra evidence before the lower court at all. It is not the case of the defendants while they cross examined the witnesses on the side of the plaintiff that these documents do not relate to him. Therefore the lower court had exercised the discretion vested in it under the proviso to Order 7....