Shiv Dayal, J.
1. The only question in this second appeal is whether the respondent's suit was within time.
2. The material allegations in the plaint were that on 8-11-1947, the respondent delivered to the appellant 95 bags of barley weighing 214 Maunds 21 seers for separation of chaff. On 6-12-1947, the appellant returned to the plaintiff 62 bags only (weighing 155 Maunds). On separation, the chaff, which was to be returned, should have been 42 maunds 36 seers. This whole quantity of chaff and the remaining 16 maunds 25 seers of barley were not returned to the plaintiff in spite of demands by notices. The suit was instituted on 16-7-1951.
3. The trial Judge held that the suit was within limitation and, in the result, passed a decree for Rs. 537/6/3 and interest.
4. The learned Additional District Judge upheld the findings as regards limitation. It is not mentioned in their judgments which articles were relied on by the courts below. It seems that there was some discussion before the first appellate court on the applicability of Section 4 of the Madhya Bharat Indian Limitation (Adaptation) Act, 1949. In my opinion all that discussion was irrelevant. The first question is which article applies to the present suit and the second will be which date should be taken as the starting point.
5. The learned counsel for the plaintiff-respondent relies on Article 145 and in the alternative, Article 120. In my opinion. Article 145 docs not apply to this case. Truly speaking, this is a suit by a bailor against a bailee for recovery of compensation for wrongful detention of specific moveable property. Article 145 provides for suits against a depository or pawnee of moveable property deposited or pawned. In the present suit there was no deposit or pawn. That article is not attracted.
6. Before applying Article 120 it is to be seen whether Article 49 of the Indian Limitation Act applies to this case. It may be recalled that the cause of action arose when Gwalior Limitation Act was in force but before the suit was instituted the Indian Limitation Act had been extended by Part B States (Laws) Act. However, that makes no difference because the period of limitation prescribed 'is 3 years both under Article 5 of the Gwalior Limitation Act and Article 49 of the Indian Limitation Act which runs thus :
For specific moveable property, or forcompensation for wrongful taking or injuring or wrongfully detaining thesame.
Whenthe property is wrongfully taken or Injured, or when the detainer'spossession becomes unlawful.
In my opinion this article applies in terms. The plaintiffs' case is that specific moveable property was wrongfully detained by the defendant. It is true that merely because the bailee does not return the goods after the expiry of the period for which the goods were bailed his continued possession does not amount to 'wrongful detention', but where the bailee refuses to return the goods on demand it is a case of wrongful detention. Here, as will be seen presently, the plaintiff gave two notices demanding the return of his goods but the defendant did not return them,
7. Shri Bhagwandas Gupta for the plaintiff maintains that a more demand on the part of the bailor does not make the detention by the bailee wrongful. According to him there must be a 'refusal' by the bailee. The learned counsel relief on Kuppuswami Mudaliar v. Pannalal Sowcar, AIR 1942 Mad 303 in support of his argument. There it was held :
'Where the plaintiff entrusts specific moveable property to the defendant on the understanding that the same would be returned to the plaintiff, limitation for a suit for the return of the property or its value starts when the defendant's possession becomes unlawful. The defendant's possession in such a case being permissive to start with, cannot become unlawful unless there is at least a refusal on the part of the defendant to return the property. A mere demand by the plaintiff will not be enough. Until the defendant asserts title in himself or until he refuses to return the property his possession does not become unlawful. Mere silence on demand being made does not constitute such refusal.'
In that case the plaintiff's suit was for the recovery of certain empty drums or their value. The defendant, while admitting that he received those drums, pleaded that he had returned them. On the facts of that case the learned Judge found that there was no material on the record to show that the defendant did not promise to return the drums. In the present case the defence is of complete denial, that is to say, the defendant denied even the receipt of the plaintiff's goods for the separation of chaff. That case is, therefore, distinguishable from the present one.
However, if the Madras decision is to be read as laying down a broad proposition that a permissible possession of goods does not become wrongful detention even when the return of goods is demanded and the demand is not respected, with very great respect I disagree. I look at the question this way. The plaintiff demands return of his goods but the defendant neither returns them nor gives any reply; he keeps mum. The question that arises is whether the plaintiff has a right of action or not.
If the answer is in the affirmative, it must necessarily be for the, reason that the silence of the bailee amounts to an implied refusal or refusal by conduct and the subsequent detention of the goods by the bailee is wrongful. The word 'wrongful' as opposite of 'rightful' connotes that the bailee is not entitled under the law to retain the goods any Further. Under Section 160 of the Contract Act it is the duty of the bailee to return or deliver according to the bailor's direction the goods bailed, without demand, as soon as the time for which they were bailed has expired or the purpose for which they were bailed has been accomplished. That provision is followed by Section 161 which lays down :
'If by the default of the bailee the goods are not returned, delivered or tendered at the proper lime he is responsible to the bailor for any loss, destruction or deterioration, of the goods from that time.'
Therefore, the cause of action arises on the failure of the bailee to comply with the bailor's demand. It being so, I am clearly of the view that if the demand for the return of the goods is not complied with a continued detention on the part of the bailee amounts to a refusal. I am supported in this view by the decision in Kalyanmal v. Kishen Chand. ILR 41 All 643 : (AIR 1919 All 102). My view also finds support in Hafizualla v. Montague, 156 Ind Cas 354 (Lah).
8. Shri Gupta then relies on Tejram Nannuram v. Chedilal, 1937-20 Nan LJ 198. Laddo Begum v. Jammal-ud-din, AIR 1920 All 353(2) and Venkunaidu v. Appanna, AIR 1951 Mad 704. Not one of them applies here. In the Nagpur case the demand was not pleaded and for that reason it was held that Article 49 was inapplicable. In the Allahabad case although the specific period for which the movables had been entrusted had expired, no demand was made for their return and, for the reason, it was held that detainer's possession was not unlawful. In the Madras case, the plaintiff's son lived for some time with his wife and then disappeared. Nothing was heard of him for more than 7 years. The daughter-in-law married another person in 1941, The plaintiff brought a suit in December 1945 to recover certain jewellery presented to the daughter-in-law at the time of her marriage with his son, In that case it was held that :
'By applying the presumption under Section 107, Evidence Act, one particular step in establishing both the plaintiff's title to the jewels as also the unlawful character of their retention was established. The proper way of applying Article 49 was only to hold that it had not been shown, that the detention of the jewels was unlawful at any time prior to three years before the suit was instituted.' in these circumstances it was held that the retention of the jewels was not proved to be unlawful at any time prior to three years before the suit was instituted. It is obvious enough that the facts of the Madras case are miles apart from the facts of this case.
9. That brings me to the question when the limitation started to run. It is asserted in the plaint that notices were given to the defendant. Sardarmal admitted in his statement that he served on the defendants two notices Ex. D. 1 and Ex. D. 2. In Ex. D. 2 dated 20-1-1948 the plaintiff made a demand in these words (when rendered into English):
'You have misappropriated the remaining barley and the chaff and have not returned them despite repeated demands. Now you are called upon to return the barley and the chaff within two days and I am prepared to incur the cartage. Otherwise a suit will be instituted against you'.
10. In the second notice dated 29-11-1950 Ex. D. 1 the plaintiff's legal adviser wrote to the defendant (when rendered into English)
'You have not returned the goods. Therefore by this notice you are called upon to return the barley and the chaff within one week at Sardarmal's expenses otherwise a suit will be instituted.'
11. The first notice Ex. D. 2 appears to have been served on 21-1-1948. I have not the slightest doubt in my mind that for the purposes of Article 49 of the Limitation Act, the detention of the goods on the part of the defendant became wrongful at least since 23-1-1948, if not earlier. It was held in Reeves v. Butcher. (1891) 2 Q.B. 509 (511) that the statute runs from the earliest time an action can be brought. This is a well settled principle. As the suit was instituted on 16-7-1957 this was barred by time.
12. In the result, this appeal is allowed, the judgments and decrees passed by both the courtsbelow are set aside and the suit is dismissed. Inthe circumstances of the case both parties shallbear their own costs throughout.