1. This is an appeal by the sole defendant in O. S. 74 of 1959, which was decreed in favour of the plaintiff.
2. The plaintiff is a firm of auctioneers. It acted as the auctioneer for the Government of India during the period from October 1945 to November 1946. As security for the proper discharge of its functions, the firm deposited a sum of Rs. 11,000 with the Government of India in or about the end of October 1945. There was settlement of accounts about the middle of the year 1947 at which a sum of Rs. 4398 was found due to the said Government. The plaintiff-firm has laid the suit on 7-12-1959 for the recovery of Rs. 6,602 being the balance of deposit amount after deducting Rs. 4,398 due to the Government. The amount was claimed with interest at 12 per cent from the date of suit. The facts were not disputed by the defendant, the Union of India, represented by its Secretary in the Department of Supply. But the suit was contested on the question whether it was in time. That was the only issue in the suit. The learned Fourth Additional Judge, City Civil Court, Hyderabad held that the suit was governed by Article 145 of the Indian Limitation Act and was in time as so he decreed the suit for the amount claimed, but with interest at 6 per cent per annum.
3. The point taken in this appeal is that the suit is not governed by Article 145 of the Indian Limitation Act, but Article 115 of the Limitation Act. I shall first examine Article 145 of the Limitation Act, which was applied by the Court below. It contemplates a suit against a depositary or pawnee to recover movable property deposited or pawned, and provides a period of thirty years as limitation starting from the date of deposit or pawn. In the instant case, there is no controversy that the amount was deposited as security for the due performance of the functions of the plaintiff as an auctioneer. There can, therefore be little doubt that the Government is a depositary. The learned counsel appearing for the Union of India has, however, raised the question that the Article contemplates the recovery of specific movable property and so it would not be correct to apply it to money as such. The term 'movable property' is not defined under the Limitation Act. But we find a clear antithesis in certain of the Articles, notably Articles 48 and 49 providing for suits for recovery of specific movable property, and those Articles have received an interpretation that they govern return of movable property in specie.
4. A Bench decision of the Madras High Court in Pichuvadiar v. Secy. of State for India in Council, (1917) ILR 40 Mad 767 at p. 774: (AIR 1918 Mad 1111 at p. 1114) (Justice Ayling and Justice Seshagiri Ayyar) has ruled that it was well established, both with reference to the Indian Contract Act and the Limitation Act that the term moveable property' included money as well. In Asghar Ali Khan v. khurshed Ali Khan, (1902) ILR 24 All 27 (PC) the Privy Council considered Article 89 of the Limitation Act of 1877 (Act XV of 1877) and held that movable property contemplated therein included money. This interpretation has been adopted by a Bench of the Calcutta High Court in Lala Gobind Prasad v. Chairman of Patna Municipality, (1907) 6 Cal LJ 535 and by the Madras High Court in Abilyamba Chatram v. R. Subramania Ayyar, : AIR1954Mad101 . 1 think that this is sufficient authority for the proposition that the term 'moveable property' within the meaning of the Article in question includes money.
5. The learned counsel has raised another point as excluding this Article. He contended that no cause of action accrued to the depositor to recover the same on deposit and, inasmuch as the starting point provided in the Article is the date of the deposit, it is not correct to apply the Aricle when a cause of action had not arisen on the date of the deposit. For this view, he finds support in a Bench decision of the Patna High Court in Ruin Ranbijay Prasad Singh v. Mt. Bachai Kuari, AIR 1939 fat 688. That was a case where the legal representative of one Ganga (deceased) sued for the return of a sum of money deposited by Ganga with the defendant, his employer, as security for good conduct. The action could not be in time as Article 145 did not apply. The learned Judges held that the said Article did not govern the suit and the reasoning appears thus:
'The period from which limitation runs under Article 145 is the dale of the deposit or pawn. That means to say that, although no cause of action arose in this particular case at the date of the deposit, yet time was running against the plaintiff or his legal representative. That makes the application of Article 145 impossible as a general principle. Now the Limitation Act provides for time running only after the cause of action has arisen, and I think it may be taken as quite certain that if any other construction than that is to be placed upon a particular Article, it will be clear that Legislature never intended that that Article should apply to the facts of such a case as this.'
This decision has assumed that when a starting point is provided for limitation to run it must be deemed that a cause of action has arisen on that date. A different reasoning has been adopted in Bibhu Bhusan Dutta v. Anadi Nath Dutt,AIR 1934 Cal 87 at p. 92. That was a case of G. P. notes of the face value of Rs. 33,000 having been deposited as security for Gobendra's services under the Burdwan Raj. The amount furnished as security was drawn from the joint family funds. The suit was filed to recover the sum after the death of Gobendra. The learned Judges held that Article 145 governed the suit and the discussion pertinent in this context occurs at p. 92:-
'In our judgment however the Limitation Act does not lake any notice of the termination of the contract of bailment, and omitting all reference to bailment has used the word depositary with the object of relying upon the act of deposit as the starting point of limitation.' There are also decisions which have interpreted the term 'deposit' contemplated by the Article in (1907) 6 Cal LJ 535 at p. 540 referred to supra, which deal with a case of security deposit, the learned Judges applied Article 115 of the Limitation Act for the return of the security deposit. There is useful discussion at p. 540, which is enlightening on this aspect of the case: 'If a Government Security or a sum of money delivered to be held as security for the performance of some engagement, and upon the express or implied understanding that the thing deposited is to be restored to the owner as soon as the engagement has been fulfilled, the person with whom the deposit has been made may rightly be treated as a depositary within the meaning of Article 145 of the second Schedule of the Limitation Act. This view also receives some support from the definition of the words 'deposit' and 'depositary' as given in the Oxford Dictionary.....'
In Kishtappa Chetty v. Lakshmi Animal, AIR 1923 Mad 578 at p. 580, a Bench of the Madras High Court consisting of Schwabe, C. J. and Wallace, J. the following are the relevant observations:
'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 by that man to another, he became a depositary of it, unless, of course, there was something in the terms of the handing over which would prevent his being treated as a person with whom it was deposited at all.'
This view was referred to with approval by a Bench of the Calcutta High Court in ATR 1934 Cal 87.
6. A case in point is Mohammad Habibul Haq v. Tikam Chand, AIR 1938 PC 110. That was a case where the question for decision was posed by Lord Roche thus:
'Whether the original plaintiff was or was not entitled to the benefit of certain Government promissory notes of the face value of Rs. 13,000 which had been deposited by him with the said defendant as security and was or was not entitled to recover the said promissory notes or the amount realised by their sale.' I am referring to this point as set out in the judgment as it obviates it further enunciation of facts of the case which appear in the body of the judgment. The answer to this question is seen at p. 112 of the reported judgment; 'The notes remained with Tikam Chand as security or at any rate for safe custody and on either view not Article 49 but Article 145 is the relevant Article and the suit was well within time.'
The learned counsel has strenuously urged that this was a case where there was a creditor and debtor relationship between the parties and that is not present here. Assuming it is so, the principle, however, remains the same. So this is an authority for the position that where there is a security deposit Article 145 would govern. I find that Article 145 has been applied for return of security deposits as such in : AIR1954Mad101 (supra). The facts were that the plaintiff, one R. Subramania Aiyar was appointed as clerk of the defendant, Devasthanam in 1927. As security for the proper fulfilment of his duties as a clerk under the Devasthan, he deposited an amount aggregating to Rs. 200. The plaintiff left the services of the Devasthanam in 1930. He filed a suit to recover the money deposited as security. The learned Judge held that Article 145 governed the suit.
7. The learned counsel tor the Govt. has submitted that in Official Receiver of South Arcot. v. Kulandaivelan Chettiar, AIR 1946 Mad 519 a Bench of the Madras High Court observed that AIR 1923 Mad 578 could not be considered as laying down good law. I find from the discussion that they disapproved of the interpretation that the learned Judge gave to Section 10 of the Limitation Act. They were only discussing the application of Section 10 of the Limitation Act. It cannot, therefore, be said that entire judgment in that case was held to be bad law. The said case dealt with the recovery of jewels which were deposited. The learned Judge considered the question from the point of view of a deposit. They held that if it was a deposit. Article 145 governed the suit. The learned counsel for the appellant-Government strongly relied on V. Balakrishnudu v. G. Narayanaswami Chetti, AIR 1914 Mad 4. That decision affirmed the judgment of Wallis, J. reported in the same volume at p. 51: (AIR 1914 Mad 51). The facts which appear from the judgment of Wallis, J. are that the suit was to recover a sum of Rs. 10,680-9-9 alleged to have been deposited by one Nagamma (deceased) with her brother's son, the defendant. It was common ground that the same was due from the defendant to Nagamma. On the question of limitation, Wallis, J. excluded the application of Article 145 observing that the Article did not govern the deposit of money. The learned Judge also understood the term 'deposit' as used in sense of a bailment in Roman law. That judgment was affirmed by the Bench. It is pertinent to notice that this interpretation of the term 'deposit' within the meaning of Article 145 was dissented from in AIR 1923 Mad 578 cited supra: and it is also now settled that Article 145 governs the suit for recovery of deposits of money as well. The pertinent decisions in support thereof have been referred to in the foregoing paras.
In : AIR1954Mad101 Ramaswami, J. discussed this latter dissenting view in arriving at the conclusion that he did. It seems to me that in view of the decisions ot the Privy Council in(1902) 24 All 27 (PC) and Mohd. Habibul Haq v. Tikam Chand, AIR 1938 PC 110 it is difficult to adopt the rationale enunciated in the said Bench decision. It is only on the basis of AIR 1914 Mad 4 that the learned counsel has argued that Article 115 applies to this case. For the reasons stated by me, I may not be right in adopting what has been said there. The learned trial Judge has discussed Article 115 mid ruled out its application. I think that the view taken by him is correct.
8. In the result, therefore, 1 find that the trial court was right in applying Article 145 and holding that the suit was in time. The learned Judge has reduced the rate of interest to 6 per tent which is adequate relief.
9. The appeal, therefore, fails and is dismissed with costs.