GRATIAEN J.—Bastian Silva v. William Silva
Present: Gratiaen J. and Gunasekara J.G. P. BASTIAN SILVA, Appellant, and W. G. M. WILLIAM SILVA,
S. C. 315—D. G. Chilaw, 12,526M
Prescription Ordinance (Cap. 55)—Goods sold and delivered—Appropriation ofpayments—Part-payment—Section 8 and proviso to section 12.
Where there has been a series of transactions, between two persons, of goodssold and delivered, each item of purchase constitutes a separate debt, and themere occurrence of an item of purchase within the period of limitation does notkeep the claim alive as to the older sales effected outside that period. Further,when payments are made by the debtor without any indication that they are tobe appropriated on account of all the debts collectively, the creditor isentitled at his option to appropriate the payments in reduction of .theearlier- debts which are statute-barred, but such appropriation cannotoperate by itself as a part-payment so as to take the balance due on thoseearlier debts out of the statute ; the balance due on the earlier debts continuesto be statute-barred.
Appeal from a judgment of the District Court, Chilaw.
H. W. Jayewardene, with D. R. P. Goonetillelce, for the defendant appellant.
Kingsley Herat, for the plaintiff respondent.
:Cur. adv. vult.
February 12, 1954. Ghatiaen J.
This is an appeal against a judgment in favour of the plaintiff for a sumof Rs. 1,482/95, representing the balance found to be due to ‘him upon aseries of transactions whereby he sold and delivered various quantitiesof fish to the defendant.
GR ATIAEN J.—Baslian Silva v. William Silva
The only issue which calls for decision is whether a part of theplaintiff’s claim is barred by prescription. The action was institutedon 16th November, 1946, and the account particulars filed with the plaintshow that the total value of the consignments of fish which wdre deliveredwithin one year of that date was only Rs. 295/50. Prima facie, therefore,the claim in respect of the earlier consignments could not be> maintainedin view of the provisions of section 8 of the Prescription Ordinance.
In a claim for goods sold and delivered, the mere occurrence of an item ofpurchase within the period of limitation does not … keep<-the claim
alive as to the older sales effected outside that period ”—Silva v. AdakkanKangany x, Usuf Saile v. Punchi Menike 2 and Abdul Coder v. Yelaiden 3.The plaintiff has not pleaded or proved that there was an “ accountstated ” between the parties in respect of the series of transactions towhich the action relates. His claim, when analysed, is based on a numberof separate causes of action, each of which is referable to a particularcontract of sale.
In meeting the plea of prescription the plaintiff relied on three payments,amounting to a total sum of Rs. 261, which he had received from thedefendant on November 23rd, 24th and 27th, 1945, in liquidation of theliability (So it has been argued) “ on the running account*” which includesthe earlier items which were prima facie statute-barred. The learnedjudge accepted this argument and allowed the plaintiff’s claim in itsentirety.
The legal consequences of a payment in reduction of a debt are clearenough, and the application of the principle involved is expressly providedfor in a proviso to section 12 of the Prescription Ordinance. The effectof a part-payment, in circumstances from which a promise to pay thebalance may legitimately be inferred, is to take the case out of the operationof the statute—Moorthipillai v. Sivakaminathan *. As was explainedin Arunasalem v. Ramasamy s, the law, in the absence of anything to thecontrary, implies a promise to pay the balance, even if the debt wasalready prescribed.
If a claim relates to a single debt which is prima facie statute-barred, theburden is on the creditor relying on the subsequent payment “ to showthat it was made on account of the debt, and as a part-payment ”—perClarence C.J. in Sathappa Chetty v. Muttu Raman Chetty6. If, however,there are more debts than one, the creditor must prove that the part-pay-ment was made “ on general account ” in order to defeat a plea of pre-scription in respect of all the items—Re RainfoHh : Gwynn v. Gwynn 7.
Let us apply these principles to the facts of the present case. Neitherparty has explained the circumstances in which the defendant made thepayments of November, 1945, relied on by the plaintiff. There is accord-ingly no evidence which justifies an inference that( the defendant in-tended any of those payments to be appropriated on account of all thedebts collectively. It follows that, as the defendant himself made noappropriation at the time of payment, the plaintiff was entitled at his
1 (1904) i Bat. 36.* (.1912) 14 1V. L. R. 30.
* (1904) 3 A. O. R. 121.*.(1914) 17 N. L. R. 156.
3 3 G.W. R. 57.6 (1882) 5 S. C. C. 62.
(1879) 49 L. J. Ch. 5.
Sinnathamby v. AnnammaTi
option to appropriate the payments to any debts which he selected, but■such appropriation could not operate by itself as a part-payment so as to takethe balance of the selected debt out of the statute.—vide the authoritiesquoted in Eailsham Vol. 20 p. 639 footnotes (r) and (t). The reasonis perfectly clear; an inference of an acknowledgment (which istreated as a promise to pay the balance) cannot be drawn except from theconduct of the debtor himself.
In my opinion the judgment under appeal was not justified by the evi-dence. The plaintiff was entitled to (and I shall assume in his favour thathe did in fact) appropriate the payments made in November, 1945, in re-duction of the earlier debts which would otherwise be statute-barred,but uhe balance due on those debts continued to'be statute-barred.On the other hand, his claim amounting to Rs. 295/50 on the latertransactions which took place within a year of the institution of theaction is not prescribed. I would accordingly vary the decree by orderingthe defendant to pay to the plaintiff a sum of Rs. 295/50 with legalinterest thereon from the date of the action until payment in full, togetherwith costs taxed in the class in which the action ought to have beeninstituted. The plaintiff must, however, pay to the defendant the costsof this appeal.
■Gutstasekara J.—I agree.