J LAZARUS Vs. KRISHNA CHUNDER DE

JUDGEMENT

(1.) IN this appeal, which arises out of a suit for recovery of a certain sum of money, the only question that arises for consideration is whether the Court of Appeal below is right in holding that upon the plaintiff's own showing the suit was barred by limitation as being governed by Art. 64 and not by Art. 60 of the 2nd Schedule of the Limitation Act. We are of opinion that this question must be answered in the negative. The facts stated in the plaint, which bear upon the question of limitation, are those to be found in the 2nd paragraph of that document, and, as we understand the plaint, they are shortly these: That there was a registered agreement between the plaintiff and the defendant whereby it was agreed that the plaintiff was to use a godown belonging to the defendant for the purpose of storing the jute purchased by him, the defendant being promised a certain commission in return; and that there was in addition to this agreement in writing registered, a verbal agreement to the effect that sums of money would be sent by the plaintiff to the defendant, who would hold the same in deposit as a trustee, and that on demand the defendant would pay to the plaintiff the balance left after making the necessary payments for the purchase of jute, those payments for the purchase of jute being, as the plaint shows, evidently intended to be made to the plaintiff's agent; for it is stated in the same paragraph of the plaint, as a reason for the verbal agreement, that the officers in the godown appointed on behalf of the plaintiff for the purchase of jute could not be trusted with large sums of money. Upon the statements contained in the plaint, it could not then be said that the defendant was necessarily an agent for the plaintiff, and not the holder of the money sent to him by the plaintiff as a deposit, within the meaning of Art. 60 of the 2nd Schedule of the Limitation Act. It is quite possible that the position of the defendant was only that of an agent. But the Court of Appeal below has not found that as a fact upon the evidence, nor indeed has it come to any finding of fact; and all that we have now got to deal with is the question, whether the facts; stated in the plaint are such, that the defendant must be taken to have been an agent of the plaintiff. Upon the plaintiff's own showing, as the Court of appeal below seems to think, we think the answer to this question must be in the negative. The view of the Lower Appellate Court, therefore, that on the plaintiff's own showing his claim comes, not under Art. 60, but under Art. 64 of the 2nd Schedule of the Limitation Act, cannot in our opinion stand. The view we take is in accordance with that taken by this Court in the case of Ishur Chunder Bhaduri V/s. Jibun Kumari Bibi (1889) I.L.R. 16 Cal. 25. That being so, the decree of the Lower Appellate Court dismissing the plaintiff's claim on the ground of limitation, without going into any of the facts necessary to be found in order to dispose of the question of limitation, must be set aside, and the case must be sent back to that Court, in order that it may deal with the question of limitation and any other question arising in the case, after taking into consideration the evidence in the case. The costs of this appeal will abide the result.