GANGA DEVI Vs. DHARAM DAS

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff respondent to recover Rs. 5,520-15-9 under the following circumstances:

(2.) The plaintiff is the widow of one Niadar Singh and the defendants are the sons of one Lala Paras Das. The plaintiff's case is that Paras Das was a banker carrying on business at Saharanpur, Simla and various other places, and that as a banker he used to receive moneys by way of deposit, on which interest was paid or not paid, according to the agreement in each particular case; that her husband at various times between the 24 December 1896 and the 24 of May 1902 deposited money in the defendant's Bank at Simla, and that it was agreed that he was to receive interest at the rate of annas 6 per cent, per mensem on such deposits. It was also agreed that the principal and interest was payable on demand. That this course of dealing continued until the 2 December, 1901, the plaintiff's husband operating on the account thus opened, and that the last withdrawal of money Was on the 24 May 1902. The plaintiff further alleged that the account used to be balanced once a year, and that a balance of Rs. 5,520-15-9 was due to her up to the 8 of January 1905. The suit was practically only contested by Dharam Das, defendant No. 1, whose defence was, inter alia, that the money was paid as a loan and not as a deposit, and that the claim is, therefore, barred by Art. 59 of the Limitation Act of 1877. Badri Das, defendant No. 2, merely stated "that the debt, if recoverable at all, was recoverable from the defendant No. 1, as under a partition made between the sons of Paras Das, the money due to the plaintiff was payable by Dharam Das. Janeshri Das, defendant No. 3, made no defence. The lower Court decreed the claim in full, holding that the moneys paid by Niadar Singh to Paras Das were deposited within the meaning of Art. 60 of the Limitation Act, and that the plaintiff having demanded payment on the 7 of September 1904, and her suit having been instituted on the 10 of January 1905, her claim was amply within time. The arguments which were addressed to us by both sides at the hearing of this appeal burned entirely on the question of limitation.

(3.) For the appellant it was contended that in enacting the two articles in question, the Legislature intended to make a wide distinction between loans and deposits; that the transactions in this case amounted to loans made by Niadar Singh to Paras Das, and that, therefore, Art. 59, and not Art. 60, was applicable. For the respondents it was contended that, though the moneys advanced were undoubtedly loans in one sense of the word, they were none the less deposits within the meaning of Art. 60, inasmuch as Paras Das received them in the capacity of a banker; that Art. 59 was meant to apply to ordinary borrowers, but had nothing to do with bankers and their customers, that a banker is on a totally different footing to a private person, inasmuch as he creates a special confidence in himself by holding out that he is a person of substance and solvent, Mr. O Conor, for the respondent, further urged that in any case the suit was not barred by reason of the entries in the appellants books to be found at p. 33 R. These are: 1. Certain entries relating to be debt due to Niadar Singh in the lists prepared and filed in suit No. 96 of 1903, in the Court of the Subordinate Judge, which was a suit between the defendants, the sons of Paras Das, for partition after their father's death. 2. An entry in the defendants books on the 11 of October 1902 showing a balance in favour of Niadar Singh. 3. A credit of interest in Niadar Singh's account on the same date, and