Phoolchand and Others vs Shesh Gir

Bilgrami, J.—This Plaintiff''s second appeal is directed against the judgment and decree of the District Judge, Gulbarga affirming in appeal a decision of the Additional Munsiff of Gulbarga, dismissing the Appellants suit for recovery of Rs. 1130/- or the ornaments deposited, against the Respondent, on the ground that it was barred by limitation. Tim Plaintiff''s case is, that the Defendant had pledged as gold ornaments on 15th Amardad 1354F and obtained Rs. 700/- loan with the agreement to pay interest at the rate of Re 1/- per cent per mensem.

On 11th Farwardi 1855F, the Plaintiff gave back these ornaments to the Defendant on an agreement that they will be returned to the Plaintiff within eight days and if he failed to do so he will pay Rs. 700/- with interest according to the agreed rate from the date of the original pledge. He has failed to do so, hence this suit. The defence in brief is that the ornaments have been returned. The suit was instituted on 13-6-1950 which corresponds to 13th Arnardad 1359 F, more than three years after the deposit of the ornaments.

The trial court held that Article 49 of the Limitation Act applies, in which three years period is prescribed, hence the suit is time-barred. This decision we have said above was upheld in appeal by the district judge by judgment dated 2-4-54 which is the subject-matter of the present appeal.

Shri Phoolchand Gandhi on behalf of the Appellant, who has very ably argued this case, contends that the courts below have erred in holding that Article 49 of the Limitation Act is applicable because that Article is a general Article and cannot apply to cases to which the special Article 145 is applicable. The period prescribed under that Article h thirty years hence the case is well within time. The case he argues falls within the four corners of this Article being for the recovery of moveable deposited by the Plaintiff with the Defendant.

In accordance with the rule that a special statutory provision will prevail over the general, to a case to which both the articles are applicable the limitation period will be thirty years under this Article. In support of this proposition, he relies on- ''Narbada Bai v. Bhavani Shankar'' 26 Born 430 (A). I do not doubt the correctness of this proposition, but the question is whether Article 145 can be applied to the present case at all, in view of the agreement contained in Ex. 3, in which the Defendant has promised to return these ornaments within a fixed period, or to pay the amount. It appears I von the agreement that the right to recover lie specific property deposited no longer exists.

All that the Plaintiff can claim under the agreement as it is worded is, the amount set out therein. The mere fact that the Plaintiff without any title to do so in alternative claims the property in specie, cannot bring a suit under Article 145. The learned advocate of the Appellant relied on - Kishtappa Chetty Vs. Lakshmi Ammal, (B),-''Gangahan Cbakrabarti v. Nabimi Chandra AIR 1916 Cal 869 (C); - ''Gur Baksh Singh v. Khairati Barn AIR 1930 Lab 913 (D); - Bibhu Bhusan Dutta and Others Vs. Anadi Nath Dutt and Others, (E); - AIR 1938 110 (Privy Council) (sic) and - S. Krishnaswami Aiyangar and Another Vs. V.S. Gopalachariar and Another, (G), and argued that even where a suit is for recovery of the article deposited and also in alternative for the price thereof, Article 145 will apply. I do not agree. The cases relied upon by the learned advocate are distinguishable from the present case on the ground, that in none of those cases the right to recovery of property in specie was lost by the Plaintiff under an express agreement.

In my opinion this action is really based on a contract, and is in substance for the compensation or the breach thereof, the sum of the compensation being liquidated and set out in the agreement. Before I refer to the rulings in support of this opinion and set out the on which it is based, I want to make it clear that I completely agree with Mr. Phoolchand Gandhi that Article 49 is not applicable to the present case. In my opinion, the words "for wrongfully taking or wrongfully taking or wrongfully detaining" which occur in this Article restrict its application to the eases in which the detention is wrongful'' and the action is ex delicto and not ex contract.

Since in this case under the agreement the Defendant was entitled to retain the possession of the article if he was to pay the amount required under the agreement it cannot be said that his detention of the property was wrongful. His liability is confined now to the payment of money.

I shall now proceed to give in brief die reasons for my considering that Article 115 is applicable to this case. The conditions necessary for application of this Article are (1) that the suit should be based on a contract express or implied; (2) the action should be for compensation for the breach of contract. I have already pointed out that this action has risen out of a contract embodied in Ex. 3, by which the Defendant has bound himself to pay a certain amount mentioned therein in the event that be fails to return the property within the time fixed.

The other condition necessary for die application of Article 115 is that the suit should be for recovery of compensation for the breach of contract. The breach of agreement in this case occurred when the Defendant failed to return the ornaments within 8 days as he has promised. The question is whether this suit can be considered a suit for compensation for the breach of contract. I am of opinion that the sum which the Defendant has promised to pay is by way of compensation within the meaning of the word as it is used in this Article. The word ''compensation'' and damages are two distinct terms.

The word ''compensation'' is used in this Article in the same sense as in Section 73 of the Contract Act. It denotes money or anything given to. recompense the person who has suffered through the act of the person committing the breach of contract. The damages on the other hand mean the estimate of some loss and injury actually sustained. The term compensation is used in a sense wide enough in this article to embrace cases in which a certain sum is claimed which has been fixed by the parties for payment as compensation to the injured party in the event of the breach of contract on the part of the other party to the agreement. That the sum is not called compensation and that it is payable under a bond or even a promissory note can make no difference so long as in substance it is a compensation in this wide sense.

Authorities are not lacking to support me in Ibis opinion. The following observation of Straight J., in - Tlnsain Ali Khan v. Hafiz Ali Khan 3 AH 600 (FB) (II) lends full support to what I have said above:

If payment is refused or is not forthcoming, then there is breach, and the suit against the defaulting obligor or promisor is, not to make him do something in furtherance of the contract, for the time for its performance is passed, but is in reality one for damages for the broach of it, the measure of which will be the amount of debt with interest.

It was held in that case that the expression ''compensation'' can also apply to suits in respect of bonds and promissory notes.

The application of this un n ''compensation'' on is not confined to unliquidated damages. See in this regard- ''Harindar Kishor v. Administrator General of Bengal 12 Cal 357 (I)and also - Bhubaneshwar Narayan Vs. Rai Satyadeo Narayan and Others, (J) in which the suit was on a bond which contained an agreement to to pay the amount within a petained an agreement to pay the amount within a period fixed. It was held that non-payment within a period fixed. It was held that non-payment within the period constituted a branch of contract, and the amount payable may be taken as compensation, and the case fell, as the bond was registered under Article 116. The Allahabad High Court in- Abdul Shakur Khan Vs. Rajendra Kishore Saran Singh, (K) has held that a suit for refund of the advance money aid by the Plaintiff to the Defendant under an agreement that the Defendant will execute a lease in favour of the Plaintiff and has failed to do so, falls under Article 115.

A case more closely applicable to the present is S.L. Ramaswamy Chetty and Another Vs. M.S.A.P.L. Palaniappa Chettiar, (L), in which a pledgor has brought an action against the pledgee for recovery of properties pledged or their value because die Defendant without the authority of the Plaintiff nail taken the property himself as it on sale, it was held by a Division Bench of the Madras High Court that Article 115 was applicable.

To sum up in conclusion my view of the whole matter is that in cases like the resent where under an agreement the depositor can no longer lay claim to the deposited property in specie and lie can only claim the price or any other compensation fixed by the parties, Article 145 can have no application. Such cases will fall under Article 115, the period of limitation prescribed in which is three years from the date of breach of contract. The date of the breach of contract in this case is 19th Farwardi 55F i.e. eight days after the deposit of the articles with the Defendant.

The suit, therefore, which was not filed till 30th Amardad 1359F which corresponds to 30-6-1950 is clearly time barred. Thus though I do not agree with tile opinion of tile courts below that Article 49 applies to this case, yet for the reasons set out above, I agree in conclusion that the suit is time- barred and must be dismissed.

In the result, this appeal fails and is hereby dismissed and since tile other party has not appeared despite service of Summons, no order is made as to costs.