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TMI Blog1988 (7) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... n advocate of this Court Sri Jestamal, who subsequently sought and obtained permission to retire from the case for want of instructions after serving, a registered notice on her disclosing his intention to retire from the case. Subsequently, the respondent has not chosen to engage anybody else in place of, Mr. Jestamal and therefore I have not had the benefit of any argument on her behalf. 2. But, then, Mr. Mandagi, who appears for the, appellants has been good, enough to take me through the whole of the records and also assisted me by providing information regarding all the law then obtained on that point. With, the result, I have, not been handicapped by the omission of the other side in being represented in this Court by, Counsel. 3. As earlier mentioned, the whole case turns on a short point being whether the plaintiff's suit was, in time. On this point, both the Courts-below have held that suit to be in time relying on S. 47 of the Limitation Act, holding that the cause of action enabling the plaintiff to institute the suit arose only, after she discovered the factum of fraud having been practised on her by the defendants, who had successfully prevented her from appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm and in the alternative death of her husband Dalichand on 5-11-1960. Her right to both reliefs having been denied by the defendants who amongst other things, keenly contested this suit on the question of limitation, the learned Civil Judge held that plaintiff although was not entitled to a share in the new firm of which she was not proved to be a member, she was however entitled, to accounts of the quondam firm of which her, husband was a member and that her right to claim account was not barred by time although on the date of the suit more than 3 years had elapsed, from the date on which the cause of action for claiming accounts would ordinarily arise on the death of her husband on 5-11-1960. The learned Civil Judge held, placing reliance on S. 17 of the Limitation Act, that the defendants having falsely persuaded the plaintiff or having falsely induced in her a belief that she has been included as the new member of the firm in place of her husband, had successfully prevented her by their fraudulent tactics from seeking redress in a Court and the plaintiff having come to know of the deception practised on her, as alleged by her, in 1963, the suit filed in the year 1964 was cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturned to Gokak about four months later. The finding as above makes it abundantly clear that the earlier partnership firm stood dissolved when Dalichand died on 5-11-1960 Under Art. 5 of the Limitation Act (old and new.), the period of Limitation for institution of a, suit for, accounts or share or profits of a dissolved firm is three years from the date of dissolution. Therefore, the firm having stood dissolved with effect from 5-11-1960, when Dalichand one of the partners, died the suit for accounts of that firm had to be filed on or before 5-11-063. But the suit has been filed in Feb. 1964 and there being no dispute about these dates, the indispensable inference to be drawn is that the suit was barred by time. But, the Courts-below have taken assistance, from S. 17 of the Act, which is same as Sec. 18 of the Limitation Act of 1908 to hold otherwise,. S. 17 of the, Limitation Act reads as follows: 17(l)(a) xx xx xx xx xx (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such-person as aforesaid, (c)-(d) xx xx xx , xx xx the period of limitation shall not begin to run until the plaintiff or applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em which assurance was subsequently found to be baseless and that discovery having been made in the year 1963, regrettably the suit filed in 1964 appears to be a little too late and Sec. 17 of the Limitation Act on its own could not have helped her as wrongly held by both the Courts-below. 9. This conclusion of mine is not based only on a priori considerations but is supported by high authority in law. In Ramalagu Servai v. Solai Servai, AIR 1921 Mad 283, a Bench of the Madras High Court held that S. 18 of the Limitation Act did not apply where there was no fraud regarding the date when the cause of action arose and in such a case a subsequent act of fraud could not be relied upon to save limitation. That was a case in which a member of a joint family collected a debt due to the family after the family had divided and kept the amounts with himself. In a suit for recovering that sum by the other members of the family, it was pointed out when it was not shown that there was no fraudulent concealment from the plaintiff of his right to institute a suit at the time when that right first accrued to him, S. 18 of the Limitation Act will not help the plaintiff to create a fresh date for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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