FIRM NOKHLAL SARJU PRASAD Vs. MTBIBI MOJIHAN

JUDGEMENT

(1.) This application is directed against a decree passed by the Small Cause Court Judge of Patna in favour of the plaintiff. The plaintiff is admittedly the daughter of one Ulfat Hossain who appears to have deposited a certain sum of money with the defendant during his lifetime. The plaintiff after the death of her father obtained a succession certificate and brought this suit to recover her shares in the deposit. The main plea which was taken up in the suit by the defendant was that the suit was barred by limitation. In order to determine this plea, the Court had to decide whether the suit was governed by Art. 50 or Art. 60, Limitation Act. The learned Judge held that it was governed by Art. 60 and that it was not barred by limitation. Another point which was raised on behalf of the defendant and which also had a bearing on the question of limitation was whether the suit had been brought within three years of the time when "the demand was made." This point also was decided by the learned Judge in favour of the plaintiff.

(2.) The learned advocate for the petitioner contends that the finding of the learned Sm. C. Court Judge on both these issues is not correct. As to the application of Art. 60, it is contended that the money which is in dispute represented a loan and not a deposit and reliance is placed on the statement made by one of the witnesses for the plaintiff in a previous suit to the effect that the plaintiff's father had lent the money to the defendant. But when that witness was examined in the present suit, his attention was not drawn to that statement, nor was he asked to explain it. In his deposition in the present suit he has clearly stated that the plaintiff's father had deposited the money in respect of which the suit had been brought and the learned Small Cause Court Judge has definitely found that it was a deposit and not a loan. It must be observed that even if the plaintiff's witness took a mistaken view as to the nature of, the transaction and misdescribed it as a loan, that would not in law prevent the Judge from determining whether the money in question represented a deposit or a loan, nor would it alter the legal rights of the parties. The first point raised by the petitioner therefore fails.

(3.) It was also contended that as the learned Judge has found that the amount in question was deposited by Ulfat Hossain for a fixed period, it was payable after the expiry of that period and not on demand and therefore Art. 60 did not apply. This view is supported to some extent by the decision of the Allahabad High Court in Bank of Upper India V/s. Arif Husain where it was held that Art. 60 does not apply to a suit for recovery of money deposited under an agreement that it shall be payable at a specified time. The learned Judges who decided that case did not however indicate what other Art. would be applicable. On the other hand, in Murugappa Chetti V/s. Ramanathan Chetti A.I.R (1935). Mad. 734, it was held in circumstances similar to those which are to be found in this case that after the expiry of the fixed period, the amount deposited must be deemed to be payable on demand to the depositor and therefore the claim for such money was governed by Art. 60, Limitation Act.