Hiralal Ghose vs Lal Behary Ghose

Arun K. Mukherjea, J.—This is an appeal from a judgment and decree dated May 2, 1964, by which the learned Subordinate Judge, Sixth Court, Alipore, 24-Parganas, dismissed the Plaintiff''s suit. The short facts of the case are as follows : The Plaintiff was the owner of two lathe machines which he had acquired from M/s. Parry''s Engineering Ltd. The machines remained idle with him as, for various reasons, the Plaintiff could not start the workshop which he proposed to open. Sometime in 1944 the Plaintiff at the request of a cousin named Rule Ghose gave these two machines to him for use on the condition that the Plaintiff could have them whenever he wanted them back. The Defendant was a nephew of the. Plaintiff. He had a workshop at Bondel Road, Ballygunge. The Defendant requested the Plaintiff to let him have the use of the lathe machines for a year. He agreed to return the machines to the Plaintiff whenever the Plaintiff wished to take them back. This proposal was acceptable to the Plaintiff and the Plaintiff requested Rule Ghose to deliver, the two machines to the Defendant. On September 28, 1950, the smaller machine was delivered by Rule Ghose to the Defendant. The Defendant at the time of taking delivery of this machine signed a challan. The bigger machine was, however, retained by Rule Ghose for some more time; it was, however, delivered to the Defendant on or about January 17, 1951, through the Defendant''s darwan Jhakuram who signed the challan on behalf of the Defendant and took delivery pf the machine from Rule Ghose. Even after a year was over, the Defendant continued to use those two machines with the permission of the Plaintiff. The Defendant requested the Plaintiff to let him have the use of the machines until the Plaintiff wanted them for his own purpose. In or about May 1958, the Plaintiff intended to open an engineering workshop and asked for the return of the two machines. The Defendant failed and neglected to deliver the same. The Plaintiff then arranged to have a letter sent by his pleader to the Defendant asking formally for return of the machines. This letter which was dated May 25, 1958, was registered and came back to the Plaintiff''s lawyer with the remarks ''not claimed''. Two other registered letters were sent by the Plaintiff to the Defendant. The last of these letters was dated July 15, 1958. The. Defendant, however, ''did not return the machines to the Plaintiff. Upon these facts the Plaintiff has asked for damages for unlawful detention of the two machines from July 1954 till the recovery of possession. In the alternative, the Plaintiff has further asked that, in the event'' of the two lathe machines not being in good working order, the Plaintiff should be granted a decree for compensation amounting to Rs. 15,000 which the Plaintiff assessed to be the value of the two lathe machines.

The Defendant contested the suit and in his written statement denied all the allegations of the Plaintiff. He even claimed that it was he who purchased the lathe machines from Joyasree Engineering Works in July 1950. In any case, he denied that he took delivery of the machines from Rule Ghose.

The issues that were settled for determination on the pleadings of the parties are as follows:

(1) Has the Plaintiff any cause of action for this suit?

(2) Is the suit barred under the principles of estoppel, waiver and acquiescence?

(3) Is the suit barred by the Taw of limitation?

(4) Has the Plaintiff his alleged right, title and interest in the two lathe machines in suit described in the schedule to the plaint?

(5) Is the Plaintiff entitled to a decree for declaration of title and recovery of possession of the said two lathe machines in suit described in schedule to the plaint or is the Plaintiff in the alternative entitled to a decree for the sum of Rs. 15,000 towards the value of the said two lathe machines?

(6) Is the Plaintiff entitled to a decree for damages at the rate of Rs. 20 per diem since July 1958 till the recovery of possession of the machines?

(7) Is the Plaintiff entitled to a decree for permanent injunction against the Defendant as prayed for?

(8) To what relief, if any, is the Plaintiff entitled?

At the time of trial the first two issues were not pressed. The learned trial Court found on facts that the Plaintiff had delivered two lathe machines to the Defendant as alleged by the Plaintiff and that the Defendant had failed to return them even when the Plaintiff asked for their return. Thus, the learned trial Court came to the finding that the Plaintiff had title to the two machines and was entitled to recover possession of the machines. The suit was dismissed all the same on the ground of limitation. The learned trial Judge was of the opinion that it was Article 49 of the Limitation Act, 1908, which applied to the facts and circumstances of this case and that the limitation runs from the middle of the year 1951. On this view of the matter, the suit, according to the learned trial Judge, was barred by limitation of time. The learned trial Judge rejected the Plaintiff''s contention that it was Article 145 of the Limitation Act, 1908, that applied in the facts of this case. The Plaintiff has come up on appeal against the judgment and decree of the learned trial Judge.

Though the appeal before us was fought mainly on the issue of limitation, Mr. Bhabesh Mitter appearing on behalf of the Respondent did not accept the learned trial Judge''s finding in favour of the Plaintiff so far as the question of title is concerned. He contended that the identity of the two machines alleged to have been given by the Plaintiff and which were found in possession of the Defendant by the pleader Commissioner appointed by the Court has not been properly established. He also contended that there was no sufficient evidence in support of the Plaintiff''s case that the two lathe machines belonging to the Plaintiff had been delivered to the Defendant.

This case of the Respondent is utterly unacceptable in view of the evidence on record. It will be remembered that we are only concerned with two lathe machines in this case. One was smaller and was about 6 ft. long; the other was bigger being about 12 ft. long. Mr. Mitter conceded that, so far as the smaller machine is concerned, he was not in a position to contest the Plaintiff''s case in view of the challan that he had himself signed. He, however, argued that the Plaintiff has failed to prove the delivery of the bigger machine.

The Plaintiff''s evidence in connection with the bigger machines was that the bigger machine had been delivered to the Defendant''s darwan Jhakuram who signed the challan and took delivery of it on behalf of the Defendant (see para. 5 of the plaint). In the written statement, however, the Defendant denies this story. The Defendant even denies that Jhakuram was at all the darwan of the Defendant at any stage. It is asserted that Jhakuram was the Plaintiff''s darwan and servant and therefore, when the delivery of the bigger machine was taken from Rule Ghose on January 17, 1961, it was virtually a delivery taken by the Plaintiff. Mr. Mitter argued that the evidence on the question of delivery of the bigger lathe to the Defendant is also most unsatisfactory. After examining the evidence on this point, however, we are not in a position to accept the contention of Mr. Mitter. It is to be remembered in this connection that the Defendant denied taking delivery of both the machines. In fact, the issue regarding the title to the machines is in the following form:

Has the Plaintiff his alleged right, title and interest in the two lathe machines in suit described in the schedule to the plaint?

The very fact that even the Defendant now concedes that the Plaintiff has conclusively established his case about the first and smaller machine falsifies the Defendant''s claim and suggests although tentatively that the story about the bigger lathe is also perhaps correct. At the time of trial the learned trial Judge appointed a Commissioner to go and visit the Defendant''s factory to ascertain whether there were lathes there which answer to the description given by the Plaintiff. The Commissioner''s report is Ex. 3 at p. 20 of pt. II of the paper book. The Commissioner was appointed at 4 p.m. on July 4, 1959 and commenced his work on the same day at 5 p.m. and finished it at 6 p.m. It is significant that the Defendant asked the Commissioner to do the work on another day. But, the Commissioner insisted on doing-the work at once so that there could be no tampering with the evidence. Both the machines were identified by the Plaintiff in the Defendant''s workshop. He describes the first machine as being about 6 long and the second machine as 12� 5��� long. The machine had several arrow marks. These arrow-marks are, as is well-known, signs that the machines originally belonged to the Armed Forces. This agrees with the Plaintiff''s story. The Defendant, of course, sought to explain his evidence that these arrow marks indicated the directions regarding the fitting of machines. Considering the Commissioner''s report along with further evidence adduced by the Plaintiff about his purchase of the lathe machines from Parry''s Engineering Ltd., we are in complete agreement with the learned trial Judge that the Plaintiff has successfully established that, the Plaintiff was the owner of two lathe machines of the type described in the plaint and that the Plaintiff gave these machines first to Rule Ghose and then to the Defendant. A fairly large number of witnesses were examined by the Plaintiff to prove these facts; and we have no hesitation in rejecting the Defendant''s story about it. The learned trial Judge has discussed in great details the evidence regarding the delivery of both the lathes. We agree with the arguments and findings of the learned trial Judge. Mr. Mitter has not given any convincing argument why the learned trial Judge''s reasons or findings are incorrect. We are satisfied that the Defendant was at the time of the suit in possession of the two lathes which the Plaintiff is alleged to have given to the Defendant.

We, now, come to the really most important question in this case, namely, whether the suit was barred by limitation. The learned trial Judge though giving his verdict in favour of the Plaintiff on all questions of fact held that the suit was barred by limitation and dismissed the suit. It was contended on behalf of the Defendant before the learned trial Judge that Article 49 of the Limitation Act. 1908, is the Article which applies in the facts of the case and since, in view of the Plaintiff''s own evidence limitation runs from the middle of the year 1951, the suit is barred by limitation. It was argued on behalf of the Plaintiff, however, that Article 145 of the Limitation Act, 1908; was the Article which applied in the facts of the present case. This contention was, however, rejected by the learned trial Judge. The learned trial Judge applied Article 49 in the following manner : Under that Article a suit for specific movable property other than those which come under Article 48(a) or 48(b) or for compensation for wrongfully detaining the same has to be instituted within three years from the point of time when the property is wrongfully taken or when the detainer''s possession becomes unlawful. Since the Plaintiff''s evidence is that the Plaintiff demanded back the two machines sometime about the middle of the year 1951 and the Defendant refused to return the same and continued to have possession of those machines in spite of the Plaintiff''s demand die possession of these two machines by the Defendant became unlawful after the middle of the year 1951. As the suit was filed only on December 20, 1958, the suit was instituted at a point of time when it had already become barred by limitation. According to the, learned trial Judge, the subsequent letters which the Plaintiff had sent to the Defendant will not either stop the running of the period of limitation or constitute a fresh starting point for computing the period of limitation.

It was argued on behalf of the Appellant before us that this is a case in which Article 145 applies. Article 145 of the Limitation Act is in the following terms:

Description of suit Period of limitation Time from which period begins to run

Against a depositary or pawnee to recover moveable property deposited or pawned Thirty years The dates of the deposit or pawn

If this contention of the Appellant be accepted then the Plaintiff''s, suit was well within the time of limitation. In the instant case, the machines had been admittedly given to the Defendant at his request so that the Defendant could have use of the machines until the Plaintiff wanted them back for his own-purpose, whether in the facts of this case such a bailment would come within the meaning of the word ''deposit'' used in Article 145 has been a matter of considerable controversy in the different High Courts in India. So far as this High Court is concerned we are bound by a number of Division Bench decisions according to which what the Plaintiff did in the facts of this case was to make a deposit of the machines with the Defendant.

In Bidhubhusan Dutta v. Anadi Nath Dutta ILR 61 Cal. 119 a Division Bench of this High Court had to construe the exact scope and effect of Article 145 of the Indian Limitation Act. Their Lordships construed the words ''deposit'' and ''depositary'' in the Limitation Act by the ordinary dictionary meaning of these words. Their Lordships, quoted with approval the following observations of Schwabe C.J. in the case of Kishtappa Chetty Vs. Lakshmi Ammal, as to the meaning of Article 145:

I cannot believe that it was the intention of the framers of that statute that the various District. Munsifs throughout India or other Subordinate Judges who have to administer the law should have to study either Coggs v. Barnard of the Roman law in order to ascertain what is the true meaning of Article 145. I think they meant to use simple and plain language and they used the word depositary; and in using that word they meant simply to say that, where one man''s property was handed over by that man to another, he became a depositary of it, unless of course, there was something in the terms of that handing over which would prevent his being treated as a person with whom it was deposited at all.

Their Lordships then go on to hold:

Taken in this broad sense a deposit would include a commodatum, or the lending gratis to be used by the bailee which is one of the kinds of bailment in Roman law and one of the six kinds of bailment in Coggs v. Barnard. In Story''s Classification�s of Bailments into three heads it would come under the head of the second class, namely, transaction in the nature of trust for the benefit of the bailee, including gratuitous loans for use. Indeed, Story in his Bailments, Ch. 2, treats loans of movables with permission to use under the head of deposits, the essence of a contract of deposit being the delivery of the thing.

Applying that logic to the facts of this case, i.e. to say, taking the term ''deposit'' as used in Article 145 to mean simply that where one man''s property is handed over by that man to another the latter becomes a depositary of it, there is no doubt that Article 145 of the Limitation Act will apply to the facts of this case.

In a most recent case, namely, G.D. and Co. Ltd. v. W.I. Theatres Ltd. (1960) 65 C.W.N. 504 the late H.K. Bose C.J. and P.B. Mukharji J., as his Lordship then was, were called upon to construe Article 145 of the Limitation Act. Their Lordships preferred taking the word ''deposit'' in Article 145 in the wider sense in which the word is used in the dictionary and not in the limited sense of deposit. In fact, that has been the trend of most Calcutta decisions on the subject. A large number of decisions were referred to us (though not actually cited) in which different High Courts have differently taken the word ''deposit'' used in Article 145. We feel we are bound by the Division Bench decision of this High Court in the case of Bidhubhusan Dutta Supra. He must, therefore, hold that the Plaintiff''s suit was not barred by limitation when it was instituted.

In this view of the matter, the appeal must succeed and we order as follows : The appeal is allowed. The judgment and decree dated May 2, 1964, of the learned Subordinate Judge are set aside. There will be a decree in favour of the Plaintiff in terms of prayer (a) of the plaint. There will also be a decree in terms of prayer (b) of the plaint, but we reduce-the quantum of compensation to Rs. 10 per diem for both the machines. This part of the decree will be conditional on the payment of deficit Court-fees by the Plaintiff. In the alternative, there will be a decree in terms of prayer (c) of the plaint. The Plaintiff will be entitled to costs in the appeal as well as in the Court below. The cross-objection is of no substance and is dismissed without any order as to costs.

M.M. Dutt J.

I agree.