AJNESWAR KARMAKAR Vs. KAILASH CHANDRA GHOSE

JUDGEMENT

(1.) In this case the plaintiff sued for refund of certain gold and silver kept in the custody of the defendant or in lieu of the price thereof. His case was that he handed over two tolas of gold and some silver ornaments to the defendant in 1923 for making some ornaments but the defendant never made the ornaments and refused to return the gold and silver. The defendant pleaded among other things limitation and denied receipt of these ornaments from the present plaintiff. The learned Small Cause Court Judge found as a matter of fact that the plaintiff did make over the gold and silver to the defendant but the defendant did not make the ornaments and did not carry out his share of the contract. He held further that Art. 145, Lim. Act, applied to the case.

(2.) A Rule has been obtained on behalf of the defendant and one point is whether Art. 145, Lim. Act, applies or whether there should be a shorter period of limitation under Articles 49 or 115. It is argued that the handing over of the ornaments for making into other jeweler is not deposit at all. On the other hand I am bound by the authorities of this Court and it is perfectly clear that Art. 145 does not merely apply even when property is not recovered in species. See the case of Kristo Kamini Dassi V/s. Administrator-General of Bengal [1903] 7 C.W.N. 476. An exactly similar case to this appears to be also the case of Gangahari Chakravarti V/s. Nabin Chandra Banikya [1916] 20 C.W.N. 232, where it was held that the case was one under Article 145 of the Schedule. It is argued, however, that a time is fixed within which the new jewellery was to be delivered and that after that time expired the defendant ceased to be depository and became a person in wrongful possession and so Art. 145 will not apply. In this connexion I would only refer to the case of Promotha Nath Mullick V/s. Prodymno Kumar Mullick A.I.R. 1921 Cal. 416, where the learned Judge points out that the mere fact of possession by the depository after demand becoming wrongful does not take the case out of Art. 145.

(3.) In this view, I hold that the proper Art. under the Limitation A6t has been applied and the suit is in time. The Rule is, therefore, discharged with costs, hearing-fee two gold mohurs.