9911796707
TMI Blog1990 (7) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... oney to the tea estates, namely, Nepaphoo Tea Estate and Rangmala Tea Estate. These two tea estates were owned by a Hindu Undivided Family (H.U.F.) governed by Dayabhaga School of Hindu Law. Late Suresh Chandra Bagchi, Late Dinesh Chandra Bagchi and defendants 1 to 8, who were heirs of late Bipin Chandra Bagchi, were members of the said H.U.F. The said H.U.F. also held shares of the plaintiff company and another private limited company. As some disputes arose between the members of the family, a partition suit was filed. The said suit was later compromised and a compromise decree was passed on 7-6-65. In terms of the compromise, Nepaphoo tea estate including Rangmala tea estate (hereinafter referred to as 'the Tea Estate') fell into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants from time to time. Repayments were also made by the Tea Estate. From the, entries in the books of the account produced before the court it appears that a sum of ₹ 29,433,92 was due from the Tea Estate of the defendants to the plaintiff company at the end of the calendar year 1962. No repayment whatsoever was made against the aforesaid amount of loan by the defendants since then. The accounts of the years 1963 and 1964 showed a further loan of ₹ 20/- and ₹ 10/-respectively to the Tea Estate. The suit was decreed by the learned Assistant District Judge. So far as the question of limitation is concerned, it was held that by taking over the tea estates with all the assets and liability in pursuance of the compromise, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Barua, the learned counsel for the plaintiff-respondent. 5. I shall first deal with the question of limitation. The case of the plaintiff is that it used to advance money to the Tea Estate of the defendants from time to time and the Tea Estate used to repay the same. The amount due at the end of the calendar year 1961 stood at ₹ 35,937,33. In the year 1962 some further sums were taken on credit by the Tea Estate and some payments were also made towards the dues to the plaintiff. After adjustment of all such advances and payments, the amount outstanding against the defendants as on 31-12-62 stood at ₹ 29,433.92. The admitted position is that since then, no payment was made by the defendants to the plaintiff in repayment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the said date and if it is so computed, the suit will be within time. I have considered the submission but I find it difficult to accept the same. Taking over of a going concern with all its assets and liabilities, in my opinion, cannot be any stretch of imagination amount to acknowledgment within the meaning of Section 18 of the Limitation Act. Evidently the defendants in the instant case did not acknowledge the liability in respect of the amount claimed by the plaintiff in any manner. As such, the submission of Mr. Barua that there was an acknowledgment of the liability Under Section 18 of the Limitation Act cannot be accepted. 8. The alternate submission of Mr. Barua is that taking over of assets and liabilities of the Tea Est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on Section 25(3), therefore, has no force. In view of the aforesaid discussion, I am of the opinion that the suit of the plaintiff for recovery of a sum of ₹ 29,433,92, which admittedly is the amount lent on or before 31-12-62 and outstanding as on that date, is barred by limitation, the same having been filed after expiry of three years. So far as the suit relates to recovery of a sum of ₹ 20 and ₹ 10/- claimed to have been advanced of 6-9-63 and 7-1-64, it is within time. 9. I may now turn to the next submission of learned counsel for the appellants-defendants that the plaintiff failed to prove that the amounts in question were due from the defendants. The contention of the counsel is that the plaintiff simply pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the balance sheet as due from the defendants. Such a course is not permissible except in a case of accounts stated . Admittedly, the present case is not one of accounts stated . 10. I have carefully considered the submissions. I find that neither the individual entries have been proved by the plaintiff nor there is any material whatsoever other than the books of account or the balance sheet to prove that the transactions in question in fact took place. No decree can, therefore, be obtained by the plaintiff merely on the basis of certain entries in the accounts books or the balance shown to be due at the end of the year in such accounts or in the balance sheets. The admitted position in the instant case is that no evidence has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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