KALIPADA BHATTACHARJEE Vs. KALI KUMAR PAL

JUDGEMENT

(1.) This appeal arises out of a suit on a simple mortgage brought against the mortgagors defendants 1 and 2. The plaintiff is an illiterate person, a potter by profession. He says that he made over Rs. 300 to his sister with a view that when Kalipada Bhattacharjee, defendant 3, a money-lender, had an opportunity for investing the amount the sister should make it over to Kalipada. As he was going on a tour for the purpose of his business he. thought it better to leave the money with his sister. The sister made over the money to Kalipada at the beginning of Jaistha 1337 B.S. for investment. On his return home, plaintiff enquired about the investment and on enquiry Kalipada told him that he (Kalipada) had invested the money, Rs. 150 with defendant 1, Rs. 100 with one Afiruddi and Rs. 50 with one Julmat on registered bonds. He handed over Julmat's bond to the plaintiff, but said; that the other bonds, being registered, had not been taken back from the Registration Office. The plaintiff says that he made repeated demands for these registered bonds until after three years from the date of the loan when Kalipada informed him that the bonds were with him and gave two receipts to the plaintiff for these two bonds. When the plaintiff then tried to verify the transactions he was told that the bonds were executed in favour of Kalipada. The plaintiff thereupon assembled a baithak in Sravan 1341 B. S. At the baithak Kalipada denied the two receipts and denied also his taking of Rs. 300 from the plaintiff. He said that he had taken only Rs. 50 and invested the amount with Julmat. This sum of Rs. 50 is not the subject matter of the present suit. The plaintiff claims that he is entitled to recover the amount of the loan from the mortgagors defendants 1 and 2 or otherwise he is entitled to recover the money from defendant 3 (in case it be found that defendant 3 is the owner of the mortgage money) by a money decree for the amount of loan, Rs. 150 with compensation of the like amount. The suit was decreed in part by the trial Court against defendant 3 for Rs. 267, but it was dismissed on contest against defendant 1 and ex parte against defendant 2. An appeal to the lower Appellate Court was dismissed. Defendant 3 has appealed to this Court.

(2.) In this Court it is contended that the suit should have been dismissed against; defendant 3 on the ground of limitation and that the Court of appeal below ought to have held that Section 10, Limitation Act, has no application to the facts of the case and also that Section 18, Limitation Act, has no application. The appellant claims that Art. 62, Limitation Act, applies, this being money payable by the defendants for money received on behalf of the plaintiff. For money so received by defendant 3, the period of limitation would be three years from the time the money was received and as the suit was brought after three years it was barred by limitation. For the respondents on the other hand it is contended that if this suit is regarded as a money suit, under the provisions of Section 102, Civil P.C., there is no second appeal. Further inasmuch as defendant 3 was entrusted with the money for the purpose of investment Section 10, Limitation Act, applies in any case. Section 18 applies inasmuch as the plaintiff has been kept away by fraud from the knowledge of his rights. As regards the applicability of Section 102, Civil P.C., I think that in the terms of the plaint the suit must be regarded as a mortgage suit, although there is an alternative prayer that if the claim on the mortgage be not valid he will be entitled to recover the money. On the findings of the Court below there appears no doubt that the only claim which could be established by the plaintiff is the money claim. But the suit has been bona fide framed as a mortgage suit and Section 102 does not apply. On the findings of the Courts below, it is quite clear that this sum of Rs. 300 was entrusted by the plaintiff with his sister for investment on his behalf. The entrustment was made by a verbal agreement, but it appears that nonetheless it was an express trust, as it was for a specific purpose of investment. Therefore the case comes under Section 10, Limitation Act.

(3.) As found by the lower Appellate Court the defendant was putting off the plaintiff on various false excuses and finally there was a baithak in which the defendant denied the receipts and it was after this denial that the present suit has been brought. The Courts below found that these receipts were really executed by the defendants and that they were intended to make the plaintiff believe that the defendant had duly invested the amount, but this would not be sufficient ground for extending the time under Section 18, Limitation Act. However I think that the circumstances show that there was an express trust which under the provisions of Section 10, Limitation Act, would not be barred by time. I therefore find that the suit is not barred by limitation and that the decisions of the Courts below are correct. The appeal is therefore dismissed with costs.