NRIPENDRA NATH CHATTERJI Vs. ARUN CHANDRA CHATTERJI

JUDGEMENT

(1.) This is an appeal by the contesting defendants and arises out of a suit to recover money deposited by the plaintiff with the father of the defendant. The deposit, it seems, was made with the defendants father as a banker by entries in a pass-book. It was opened in 1906 and entries in it both of credit and withdrawal were made, the last being dated 3 November 1907. The plaintiff was a nephew of Babu Kirti Chandra Chatterji with whom the money was deposited and it would seem that the sums are of the nature of gifts by Kirti Chandra to the plaintiff. The entries have been found by both Courts to-be genuine and the Courts have held that the claim is for money deposited within the meaning of Art. 60, Limitation Act.

(2.) Under this Art. the period prescribed is three years from the date of the demand It is said in the plaint that demands were made from 1 January 1936 onwards and the suit was instituted on 6 July 1936. Babu Kirti Chandra Chatterji died in 1914; and the plaintiff claims the amount of the deposit from his sons on the ground that they are in possession of his assets. Interest is-claimed at per cent. per annum simple, this amount having been entered in the pass-book in connexion with the first item of deposit. One of the objections taken by the defendants was that except with regard to the first item of deposit, there was no agreement to pay interest. Both the Courts have held that the agreement to pay interest was intended to apply to all the items of deposit. This seems a reasonable construction and I find no substance in this particular objection.

(3.) The next point taken is that the suit should have been held to be barred by limitation. The nature of the claim was not a deposit but money lent and the Courts should have applied Art. 59 and not Art. 60 of the Schedule. In this connexion, reference is made to the finding of the Courts below that the plaintiff had not proved any demand for the money on 1 January 1936, or at any date prior to the institution of the suit. Nevertheless, it has been held that the suit is maintainable and a decree has been passed. It is said that one criterion to determine whether a sum of money is merely money lent or is a deposit repayable on demand, is to see whether it is money for the recovery of which the plaintiff has a cause of action independently of any demand for repayment. For the English cases on the subject, we were referred to Joachimson V/s. Swiss Bank Corporation (1921) 3 KB 110 where the subject is examined in some detail. In the headnote it is stated to have been decided that: Where money is standing to the credit of a customer on current account with a banker, in the absence of a special agreement a demand by the customer is a necessary ingredient in the cause of action against the banker for money lent.