Skip to content


ichha Dhanji and ors. Vs. Natha Minor by His Guardian - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom338
Appellantichha Dhanji and ors.
RespondentNatha Minor by His Guardian
Excerpt:
native banker and customer - limitation act (xv of 1877), section 20, and articles 69 and 60--deposit--loan--banker crediting interest is not payment to give fresh starting point--suit to recover money lodged with a native banker more than three years after lodgment. - - 2. it had been well settled by judicial authority previously to the passing of the limitation act of 1877, by analogy to the rule which obtains with respect to bankers in england as settled by the case of foley v......recover money deposited under an agreement that it shall be payable on demand, in which case the time runs from demand being made. but whatever may be the cases to which this article is intended to apply, it is at any rate not applicable where the transaction is regarded by the law as a loan, and which, as we have seen, is the case in the ordinary banking dealings between a native sarkar and his customers.3. but it was said that the circumstances under which the money in question was placed with the defendant were of such a nature as to distinguish it from an ordinary banking transaction, and to give it the character of a deposit as contemplated by section 60. the circumstances relied on are: (1) that there was an understanding between plaintiffs and defendant that it would not be.....
Judgment:

Charles Sargent, C.J.

1. The question for decision is whether the plaintiffs claim is barred by the Statute of Limitations. The Courts below have applied Article 59 of Schedule II of the Act of 1877. It is contended for the plaintiffs that Article 60 was the article applicable to the special circumstances under which, as alleged, the money was lodged with the defendant.

2. It had been well settled by judicial authority previously to the passing of the Limitation Act of 1877, by analogy to the rule which obtains with respect to bankers in England as settled by the case of Foley v. Hill 2 H.L. Ca. 28 that the relationship between a native banker and the person depositing money with him in the ordinary way of business is that of borrower and lender, and that the money so lodged with a native banker can only be recovered as money lent, and not as a deposit under Section 1, Clause 5 of Act XIV of 1859, or Article 147 of the Limitation Act of 1871: see Nasir v. Dayabhai 10 Bom. H.C. R 300 Acharatlal v. Pranlal Printed Judgments for 1876 p. 53 and Hingun Lall v. Debee Pershad 24 Cal. W.R. Civ. Rul. 42. That ruling was quite independent of the question as to the time from which the Statute would run in the case of a loan payable on demand, which was the subject of conflicting decisions up to 1871, when the Statute of Limitations of that year made the time run from the date of demand. By the present Act of 1877 it is made by Article 59 to run from the date of the loan, and a new Article 60 has been introduced applicable to suits to recover money deposited under an agreement that it shall be payable on demand, in which case the time runs from demand being made. But whatever may be the cases to which this article is intended to apply, it is at any rate not applicable where the transaction is regarded by the law as a loan, and which, as we have seen, is the case in the ordinary banking dealings between a native sarkar and his customers.

3. But it was said that the circumstances under which the money in question was placed with the defendant were of such a nature as to distinguish it from an ordinary banking transaction, and to give it the character of a deposit as contemplated by Section 60. The circumstances relied on are: (1) That there was an understanding between plaintiffs and defendant that it would not be drawn out until a favourable opportunity presented itself; (2) that interest was agreed to be paid;(3) that the plaintiffs should come annually to settle the account;(4) that it was understood it would be drawn out in one sum. None of these circumstances, however, supposing them to be proved, distinguish it from the ordinary dealings between native bankers and their customers which have been held to create the relationship of borrower and lender. We are unable, therefore, to distinguish this case from the ordinary relationship between a banker and his constituent, and are, therefore, of opinion that Article 59 was properly applied.

4. But it was said that the entry of interest in the defendant's books, made as it was alleged in the presence of the plaintiffs, amounted to a payment, which by Section 20 postponed the date from which time would run to within three years previous to the filing of the suit. Spargo's Case 8 Ch. Ap. 407 was relied on; but that only decides that if the circumstances would support a plea of payment they are such as to satisfy the section. Here there were no demands on both sides to set of against one another, and nothing took place which could be regarded as equivalent to payment of interest. We must, therefore, confirm the, decree with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //