Balabux Marwari vs Inder Kumar Tewari and Others

Rowland, J.—The appellant before us was defendant 2 in the original suit. The claim was for balance due to the plaintiffs on a hathchitha account in respect of money deposited with defendants 1 and 2 as bankers in an account opened in the name of Sheogobind Tewari, husband of plaintiff 3 and father of plaintiff 1 and grandfather of plaintiff 2. The plaintiffs impleaded not only these two defendants who had been partners in the firm, but also the receiver of the estate of Lachmi Narayan; but as against the receiver the suit was dismissed. The Munsif decreed the suit against defendants 1 and 2 and this decision was upheld by the Subordinate Judge on appeal. In this second appeal which is presented by defendant 2, Balabux Marwari, two points are taken. The first is that the claim against Balabux is barred by limitation. The other point is that the plaintiffs are debarred from getting a decree in the suit without having first taken a succession certificate authorizing them to realize debts due to the late Sheogobind Tewari. The Courts below have treated the transactions between the parties as being of the nature of a current account between a customer and his banker, the money standing to the credit of the customer being repayable on demand and have counted the period of limitation under Article 60, Lim. Act, from the date when the demand is made. It is contended for the appellant that limitation should have been calculated under Article 59 or Article 57 from the time when the loan was made, subject to any extension of time to which the plaintiffs might be entitled having regard to Sections 19-21 of the Act.

Mr. Khurshed Husnain for the appellant invited our attention to the expressions used in some of the entries in the hathchitha which are substantially acknowledgments of receipt of money and acknowledgments of the amount standing at the time of the entries to the credit of Sheogobind Tewari. He points out that the entries do not refer specifically to deposit for which the usual Hindi word is "amanat" and contains expressions "dena nikala" and "dena raha," which he says should be translated as "debt owing" and found owing." Mr. Khurshed Husnain relies on Gobind Chintaman Bhat v. Kachubhai Gulabchand 1924 Bom 28 for the proposition that when one person hands over money to another on the understanding that it is not a gift, but has to be repaid when demanded, that would be a transaction ordinarily of the nature of a loan and the onus lies on the person claiming repayment to prove the existence of circumstances which turned the loan into a deposit. When therefore the money had been left in the hands of a trader who was not a banker, the Bombay High Court found difficulty in accepting the contention that it should be treated as money deposited for the purposes of Article 60. This view seems to be consonant with earlier decision of the Bombay High Court, but a different view has been taken elsewhere.

In Ishur Chander Bhaduri v. Jibun Kumari Bibi (1889) 1 Cal 25 the question was considered with reference to Article 60, Lim. Act of 1877. It was observed that probably the money of a customer in the hands of his banker is money lent; and that if Article 60 were cot present the matter might fall within one of the other articles. But it is also pointed out that assuming it to be money lent the loan is of a special kind. For the purposes of Article 60 the learned Judges observed that in ordinary and popular language the money of a customer standing to his credit in the accounts of a banker is money deposited, although for certain other purposes the term ''deposit'' is limited to goods which are placed in the custody of a person with a view to their being returned in specie.

In Article 60, dealing with money it is equally clear that a return in specie is not contemplated. It is so first, because it would be contrary to the ordinary usage of the language to hold such a thing; deposits of money are made, for instance, under many Acts of the legislature with public officers and others, and no one ever heard of the idea of the return of the identical coins deposited.

Therefore as the learned Judges pointed out,

to give any meaning at all to Article 60 we have to look for a case in which one man places his money in the hands of another on the terms that an equivalent sum has to be paid back on demand and a case to which according to the ordinary usage of the language the term ''deposit'' is applicable;

and they said: "we think the case of the banker and his customer is exactly such a case." Article 60 had been construed in the opposite sense by a Division Bench of the Bombay High Court in Ichhadhanji v. Natha (1889) 13 Bom 338. Sargent, C.J., acceding to the argument that in the case of a deposit in its technical sense there must be an express trust, and holding that Article 60 could not apply to any transaction which the law regarded as a loan. This decision and the Calcutta decision to which I have referred were considered by the Madras High Court in Perundevitayar Amal v. Nammalvar Chetti (1895) 18 Mad 390 and the Calcutta view was accepted as being the better law. In Dharam Das v. Ganga Devi (1907) 29 All 773 the above decisions were considered and following the Bombay authority it was held that a suit to recover money deposited with a banker on a current account was governed by Article 59 and not Article 60. Those are the decisions under the Limitation Act of 1877, the last being decided in the year 1907. In the very next year Article 60 was amended in a sense which makes it clear that the legislature intended the Calcutta and Madras view to be the law. That concludes the matter so far as the relations between a banker and his customer are concerned. In Subrahmaniah Chettiar v. Kadiresan Chettiar 1917 Mad 916 the same principle was held to be applicable to money left in the hands of a trader who is not a banker. Such money it was held will be money deposited provided the circumstances are such as would make it money of a customer if the depositee is a banker. The decisions in Ichhadhanji v. Natha (1889) 13 Bom 338 and Dharam Das v. Ganga Devi (1907) 29 All 773 were considered but were not followed. Those in Ishur Chander Bhaduri v. Jibun Kumari Bibi (1889) 1 Cal 25 and Perundevitayar Amal v. Nammalvar Chetti (1895) 18 Mad 390 were approved and with great respect I would say that the view taken is the correct view.

As was stated in one of the Bombay decisions the exact point which imposes on dealings between a creditor and debtor the characteristics of a deposit of money for the purposes of Article 60 has never been precisely set forth by the legislature. I feel sure it is not the same characteristic which is necessary to constitute a deposit for certain other purposes such as a trust which would create priority over other debts in case of insolvency or liquidation. In the absence of a legal definition I think we may say, following the Calcutta and Madras High Courts, that regard will be had to the popular meaning attached to the expression "deposited" rather than to the technical meaning which the word "deposit" has for certain legal purposes; that is to say we ought to see whether what happened between the parties was of the nature of that sort of current account which a customer keeps with his banker. The Court of first instance in this connexion pointed out that the sums deposited though substantial were not sums which the defendants'' firm would have been likely to want to borrow as a convenience for themselves they being traders in a large way of business. One may add that the withdrawals shown in the account do not appear to resemble payments on account by a distressed debtor unable to pay more. They are clearly amounts drawn by the creditor at his own wish, the debtor being apparently ready to pay any sums which the creditor wished to draw at a moment''s notice. The use of any specific form of words in the hathchitha to state in express terms that the money was money deposited is not necessary if the course of business between the parties establishes that in fact it was so. I am of opinion that the course of business has been correctly understood by the Courts below and was of the nature of a current account between a customer and his banker. The first objection of the appellant on the ground of limitation therefore fails as on the view that Article 60 is applicable, limitation did not begin to run until a date in May 1928 and the suit was instituted within three years of that date.

It was however faintly suggested by Mr. Khurshed Husnain that if the money is payable on demand, the suit is premature as against his client, as the plaintiff had not proved that he had made a demand from defendant 2, Balabux. The ordinary rule is however that on the plaintiff demanding payment from either of the partners his cause of action has arisen against them all. Mr. Khurshed Husnain desires to escape this conclusion by saying that the partnership between his client and Lachmi Narain was closed down in 1921. But this does not help him, for there is no evidence that the dissolution of partnership was notified to customers of the firm. The other point taken was that the decree should not have been made in the absence of a succession certificate, having regard to the provisions of Section 214, Succession Act. This is a point not taken in the pleadings; it was raised in the appellate Court below. The point taken in the pleadings was that the suit was bad for defect of parties, because some brothers of Sheogobind Tewari had not been joined as plaintiffs. One of these brothers was examined as a witness for the plaintiff and deposed that Sheogobind dealt with his own earnings. Out of them he opened this deposit account with which his brothers had nothing to do It is said that if this is so, the deposit money must be regarded as self-acquired property of Sheogobind and must have passed to his heirs by succession and not by survivorship.

One difficulty in giving effect to this contention is that it was not raised in the pleadings, so that the plaintiff did not get a full opportunity of answering it. Then again the account is a running account on which the plaintiffs have drawn from time to time without objection on the part of the bankers; and it also appears on the face of the hathchitha book that deposits have been made from time to time on behalf of the plaintiffs since the death of Sheogobind Tewari which took place as far back as 1913. To give effect to the contention raised by the appellant it would be necessary for us to go into questions of fact as to whether the withdrawals made by the plaintiffs after the death of Sheogobind were not sufficient to account for the whole of the old deposits made by Sheogobind and to extinguish that part of the debt, leaving at present recoverable, debt not exceeding what had been deposited by the plaintiffs after the death of Sheogobind with interest thereon. It appears on the face of the pleadings and the hathchitha that about thirteen hundred rupees principal was deposited after the death of Sheogobind and this amount with interest thereon is more than enough to come to the total of the present claim which was laid at about eighteen hundred rupees. In the plaint, it is true, of this, Rs. 1,500 is described as principal and Rs. 303 as interest: but I do not think that for such a small discrepancy we should in second appeal be justified in remanding the case for a precise finding as to how much of principal and interest respectively should on proper accounting be ascribed to the deposits made by the plaintiffs themselves and how much to the deposit of Sheogobind that may be still outstanding. In the result I would dismiss the appeal with costs.

James, J.

I agree.