GARVIN SP.J.—Dias v. Kachinona.
Present: Garvin S.P.J. and Maartensz A.J.DIAS v. KACHINONA.114—D. C. (Inty.) Ratnapura, 5,588.
Account stated—Action for goods sold—One-sided account—No acknowledg-ment in writing—Ordinance No. 22 of 1871, s. 8.
Where in an action for the value of goods sold and delivered, a one-sidedaccount was alleged to have been stated and acknowledged as correct,—Held, that there was no account stated within the meaning of section8 of the Prescription Ordinance, No. 22 of 1871.
Where there have been mutual dealings and accounts between partiesand it is avered that accounts between them were verbally stated andsettled it would constitute an account stated within the meaning of thesection.
^^PPEAL from an order of the District Judge of Ratnapura.
This was an action to recover a sum of Rs. 350.69, the value of goodssold and delivered, brought against the administrator of the estate of oneSingho Appuhamy.
The defendant filed answer, pleading that the claim was prescribed.The plaintiff then sought to amend the plaint by the addition of a newcause of action upon an account stated alleged to have been madebetween the deceased and the plaintiff and thus to bring the case withinthe provisions of section 8.of Ordinance No. 22 of 1871.
The learned District Judge allowed the amendment.
N E. Weerasooria, for defendant, appellant.—The original action wasnot for an account state, it was an action for goods sold and delivered.See Saibo v. Baas The claim is prescribed ; to take the claim outof prescription something has been pleaded which cannot be pleaded.
E. G. P. Jayatilleke, for plaintiff, respondent.—An account can bestated orally; in such a case, it comes under section 8 of the PrescriptionOrdinance. The account in the case was filed with the original plaint.In Kadiravelpillai v. Paaris1 a claim, under an account stated was heldas falling under section 8.
In this case the judge has exercised his discretion. ■ There is no evidencebefore this Court which would justify a conclusion that this is not anaccount stated. They policy of the law has always been to avoid amultiplicity of actions. An amendment should be allowed at any stage,if it does no injustice to the other side (Casilebbe v. Natchiar “).
N. E. Weerasooria, in reply.—The point that the original action wasnot for an account stated was specifically taken by appellant’s Proctorin the lower Court. The point is taken also in the petition of appeal.
December 6, 1932. Garvin S.P.J.—
The plaintiff brought this action on September 17, 1931. He claimeda sum of Rs. 350.69 which was alleged to be due to him in respect oftransactions which took place between him and one Singho- Appuhamy,• 0 .V. L. 11. 216.- 22 N. R. HI.3 21 N. L. R. 206.
GARVIN S J J.—Dias v. Kachinona.
deceased. To his plaint is annexed an account which shows clearly that heclaims to have supplied goods to this Singho Appuhamy between July 31,1929, and July 3, 1930. That statement also shows that after givingcredit to Singho Appuhamy for certain cash payments made, the last ofthem on July 3, 1930, there remained this balance of Rs. 350,69 still dueand unpaid. The action was brought against the administratrix of theestate of Singho Appuhamy. The defendant filed answer pleading interalia that the claim was prescribed. That answer was filed on November16, 1931. Nearly a year later, on June 13, 1932, the Proctor for theplaintiff moved to amend his plaint by adding the following paragraph : —“That the deceased John Singho Appuhamy and the manager of theplaintiff company examined the accounts on July 3, 1930, and, on findingthat the sum of Rs. 330.89 was due, and that an account of Rs. 330.84 wasstated as due to the plaintiff Company from the defendant ”. The motioncame up for hearing on June 30, 1931. It was opposed by the defendant,and it is to be noted that in the course of that proceeding the Proctor forthe plaintiff admitted “ that if not for the account stated (which is not inwriting) his claim would be prescribed”. The learned District Judgemakes no reference to the point which quite evidently was taken inopposition to this motion, but has allowed the application upon thegeneral ground that a plaint may be amended at any time before judgment.At the hearing to which I have just referred, the Proctor for the plaintiffmade the further admission—the fact, of course, is obvious—that theclaim on the plaint as originally drafted and filed was barred by time.The sole purpose of the amendment was to add a further count to theplaint based upon the allegation of an account stated so that the argumentmay be urged that the case falls within section 8 of the PrescriptionOrdinance, No. 22 of 1871, and as such is not barred until three yearshave elapsed. In effect, then, what the plaintiff was seeking to do was toinstitute as at the date of the motion a new action upon the allegation ofan account, stated. But it is evident from the admissions that the state-ment of account is not evidenced by any writing and from the accountfiled with the plaint which is purely an account for goods sold and deliveredthat this is not a case in which there were mutual dealings and trans-actions between the parties and that the true nature of the claim is thatit is merely a claim for goods sold and delivered. There may, of course,be in a sense an account stated even in such a case, but the question whichthe judge had to determine before allowing such an amendment waswhether, where the allegation is that the account was stated verbally,the fresh claim which it was sought to make was not in itself statute-barred.
In the case of Kappoor Saibo v. Mudalihami Baas * it was clearly heldthat a verbal statement of accounts in such a case as this did not takethe case out of the provisions of section 9 and bring it within the provisionsof section 8 of Ordinance No. 22 of 1871. We find the same view of thelaw taken in the case of Manthira Nadan v. Kulanthivel5, and in the stilllater case of Kadiravelpillai v. Paaris’.
Where there have been mutual dealings and mutual transactions andaccounts between parties and it is averred that accounts between them1 6 N. h. R. 216.- 8 N. L. R. 372.» 22 N. L. R. 91.
DALTON A.CJ.—Brooke Bond v. de Silva.
were verbally stated and settled, that constitutes .an account stated whichwould bring the case within the provisions of section 8. But where, ashere, it is merely a one-sided account that is said to have been stated andacknowledged to have been correct and where there have been no suchmutual dealings, then it would seem to be well settled law in Ceylonthat in the absence of a written settlement a claim which in substance isa claim for goods sold and delivered is barred by the provisions of section9 and cannot be taken outside the bar imposed by that section except bysome written acknowledgment.
The position in which we are left, therefore, is that the claim upon theoriginal plaint was statute-barred, and that the new cause of actionwhich it was sought to introduce into this plaint by means of an amendmentis in itself statute-barred. Under such circumstances the only possibleorder, it seems to me, is to direct that the plaintiff’s action be dismissedwith costs.
The appellant is also entitled to the costs of this appeal.
Maartensz A.J.—I agree.
DIAS v. KACHINONA