Kishore Chand vs Dulo Ram

R.S. Pathak, C.J.—This is a Defendant''s appeal arising out of a suit for money.

The Respondent filed a suit for the recovery of Rs. 150-alleging that the amount had been kept in deposit by him with the Appellant and his father Kanshi Ram on June 25, 1950, that a receipt Exhibit-P. 1 had been executed by the Appellant and his father, that Kanshi Ram was dead, and that by a notice dated December 16, 1967, the Respondent had demanded the money deposited from the Appellant but the money had not been returned.

The suit was contested by the Appellant on the ground primarily that the money had in fact been re-paid to the Respondent and that, in any event, the suit Was barred by time.

The trial court decreed the suit. An appeal against the decree was dismissed by the learned Additional District Judge, Kangra, on March 30, 1974. And now this second appeal.

The learned Additional District Judge has held that the Appellant had failed to prove that the money was repaid to the Respondent. He has affirmed the finding of the trial court in that behalf. The learned Additional District Judge has also held that the suit was not barred by limitation.

It is contended by learned Counsel for the Appellant that the finding of the lower appellate court that the suit is not barred by time is erroneous. He urges that the case falls under Article 19 of the Limitation Act, 1963, and not under Article 22 of that Act. The question in essence is whether the suit is one for money lent or a suit for money deposited. Admittedly, if the suit is held to be a suit for repayment of money lent, it must be held to be barred by time. If it is regarded as a suit for money deposited, the decree can be sustained.

Learned Counsel for the Appellant relies on Govind Chintaman Bhat Vs. Kachubhai Gulabchand, and Naithi v. Cherian AIR 1957 Trav Co. 237, In my opinion, the two cases are distinguishable. The Madras High Court in Murugiah Pillai v. Pakkiria Pillai AIR 1928 Mad. 499 (1), laid down that the question whether a transaction was a deposit or a loan was a fact or intention to be decided in the circumstances of each case, and that if there was any doubt the transaction should be presumed to be a deposit rather than a loan. In Ram Janki Devi and Another Vs. Juggilal Kamlapat, the Supreme Court laid down that the surrounding circumstances were to be considered in deciding the question whether the money paid was by way of a loan or a deposit. In the present case, the document Ex. P.1, executed by the Appellant and his father, shows that the amount was paid on "amanat" and that it was being kept ("rakhte hein") with the Appellant. It would appear that the amount was being kept in deposit by the Respondent with the Appellant and his father. Nothing has been placed before me to indicate that the transaction can be considered as a loan. The learned Additional District Judge has come to the finding of fact that the money was paid by way of deposit, and I am not satisfied that that finding is vitiated in law. That money paid by way of "amanat" should be construed as a deposit was laid down by a Division Bench of the Allahabad High Court in Jagannath Prasad and Others Vs. Mst. Ram Dularey and Others, , where the difference has been brought out between a loan and a deposit. It was observed that if the intention of the person paying the amount is that the person to whom the amount is paid should keep the amount with him and pay it to the person only when he asks for its payment and not otherwise, then it is a deposit; but if the intention is that the amount is to be paid by the payee without the payer asking for its return then it is a loan.

In my opinion, the circumstances of the present case satisfy the test that the amount was paid by way of a deposit.

The appeal fails, and is dismissed with costs.