Bajaj Textiles Ltd v Gian Singh & Company Ltd
| Jurisdiction | UK Non-devolved |
| Judgment Date | 28 June 1971 |
| Date | 28 June 1971 |
| Docket Number | Privy Council Appeal No 4 of 1961 |
| Court | Privy Council |
[1971] SGPC 3
Privy Council
Lord Pearson
,
Lord Donovan
and
Viscount Dilhorne
Privy Council Appeal No 4 of 1961
Stewart Boyd (Linklaters & Paines) for the appellant
Respondent not represented.
Footman Bower & Co Ltd, In re [1961] Ch 443; [1961] 2 All ER 161 (folld)
Limitation Ordinance1959 (No 57 of 1959)s 26 (2) (consd)
Civil Procedure–Pleadings–Set-off and counterclaim–Claim on “running account”–Whether sufficient particulars were given of mutual transactions to justify claim–Part payments in respect of outstanding balance not pleaded in reply to defence to counterclaim–Whether defect in pleading sufficient ground for setting aside judgment and ordering new trial–Limitation of Actions–When time began to run–Part payments–Running account–Section 26 (2) Limitation Ordinance 1959 (No 57 of 1959)
The plaintiff and defendant took over the rights and liabilities of its respective predecessor firms who had a long history of buying and selling goods to each other. The plaintiff sued for the balance of the price of goods sold and delivered, while the defendant alleged a set-off and counterclaimed for the balance in its favour in the running account. The High Court held in favour of the defendant and ordered that the Registrar take an account of all the transactions on the running account between the parties. The plaintiff appealed and the Federal Court of Malaysia dismissed the appeal. The plaintiff obtained leave to appeal to the Judicial Committee of the Privy Council and appealed contending that there was no such claim as a claim on a running account, the claim was barred under the Limitation Ordinance 1959 (No 57 of 1959) and the defendant failed to plead its reply to the limitation defence sufficiently.
Held, dismissing the appeal:
(1) A claim on a running account would be insufficient as a matter of pleading unless particulars were given either of an account stated (the parties having agreed as to the amount outstanding) or of the mutual transactions from which the outstanding balance arose. In the instant case, sufficient particulars were given of the mutual transactions to justify the claim: at [8].
(2) As there were mutual dealings between the parties and payments from time to time on account of the outstanding balance, such payments were part payments in respect of the outstanding balance within the meaning of s 26 (2) of the Limitation Ordinance 1959 such that time started to run afresh on the occasion of each payment: at [9] to [11].
(3) The defendant should have included in its reply an express allegation of part payments in respect of the outstanding balance. However, the lower courts' decisions to decide on the facts of the case, notwithstanding the defect in the pleadings, were discretionary in nature and it could not be said that the discretion was not judicially exercised or that there was any miscarriage of justice: at [13] and [18].
(delivering the judgment of the Board):
1 In 1951 and 1952 the appellants, Bajaj Textiles Ltd, had taken over the rights and liabilities of the firm Bajaj Textiles, and the respondents, Gian Singh and Co Ltd, had taken over the rights and liabilities of the firm Gian Singh and Co. The appellants were the plaintiffs in the action, which they commenced against the defendants (now the respondents) nearly eight years ago on 19 July 1963 claiming the sum of $1,336.35 as the balance of price of goods sold and delivered after giving credit for certain items. For convenience the appellants will be referred to as “the plaintiffs” and the respondents as “the defendants”. The defendants alleged a set-off and counterclaim which as amended was for the sum of $690,377.66 as the balance in their favour on a running account, of which extensive particulars were given. The action did not come to trial until 2 May 1967. According to a statement of defendants' counsel recorded in the learned judge's notes (and so far as appears from those notes not disputed), the long delay was due to the plaintiffs after a change of solicitors making a very late application for particulars which necessitated a postponement of the trial when it was imminent. The hearing was on 2, 3, 4, 5 and 8 May 1967 and on 22 May 1967 the learned judge in his reserved judgment decided in favour of the defendants and made an order “that the Registrar of the High Court do take an account of all transactions on the running account between Gian Singh & Co and Bajaj Textiles and Gian Singh & Co Ltd and Bajaj Textiles Ltd from 14 May 1951 to 31 December 1962 and kept in the books of Gian Singh & Co and Gian Singh & Co Ltd”. The plaintiffs appealed to the Federal Court of Malaysia, but judgment dismissing the appeal was given on 29 February 1968 and the formal order was made on 14 March 1968. An order granting leave to appeal to the Judicial Committee of the Privy Council was made on 17 June 1968. Since then nearly three years have elapsed. The appellants lodged a printed case and were represented in this appeal, but the respondents did not lodge any printed...
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City Ken Pte Ltd v Comfortdelgro Engineering Pte Ltd
...of the running account. Lord Pearson had made clear in the decision of the Privy Council in Bajaj Textiles Ltd v Gian Singh & Co Ltd [1971] 2 MLJ 133 at 135 [A] claim on a running account would be insufficient as a matter of pleading unless particulars were given either of an account stated......