(1) The plaintiffs who have been unsuccessful in their suit for recovery of Rs. 1597/4/- both before the Subordinate Judge and the learned District Judge, Patiala, have come in second appeal to this Court.
(2) The facts are not in dispute. A sum of Rs. 1500/- was deposited by one Nand Singh Bala in the year 1942 with the plaintiff firm Ralla Ram Jai Gopal of Patiala. Nand Singh Bala wanted to do some business in the purchase and sale of gold. Actually 25 tolas of gold were purchased in the account of Nand Singh Bala by the plaintiff firm and the profit of Rs. 600/- accruing on this transaction was credited in his account. Nand Singh Bala also got some ornaments made by the plaintiff firm and ultimately a sum of Rs. 1395/11/9 stood at the credit of Nand Singh Bala when he died in April 1943.
On the death of Nand Singh Bala, S. Kartar Singh defendant-respondent No. 1, father of Mst. Hardev Kaur widow of Nand Singh Bala, defendant No. 2 went to the plaintiff firm in Company of Meem Chand and asked for the return of the sum which stood at the credit of Nand Singh Bala. According to the evidence, Meem Chand at whose instance Nand Singh Bala had opened an account with the plaintiff firm, on the assurance of S. Kartar Singh, asked the plaintiffs to pay this amount. The amount was paid to the defendants in 1945. Subsequently a suit was filed by Atma Singh and Sujan Singh, sons of Nand Singh Bala, against the plaintiff firm for recovery of Rs. 1395/11/9. The suit was dismissed by the trial Court but on appeal the District Judge gave a decree in favour of the sons of Nand Singh in 1946 holding that they were entitled to the deposit which had been made in the name of their father. In execution, of that decree the sum of Rs. 1597/4/- was paid to Atma Singh and Sujan Singh some time in July 1949. The plaintiffs made an unsuccessful appeal to the High Court.
(3) During the pendency of the appeal a notice was sent to S. Kartar Singh to return the amount as the sons of Nand Singh Bala had recovered the sum of Rs. 1597/4/- from the plaintiffs in execution of the decree. S. Kartar Singh replied that the suit had been decreed as a result of the plaintiff's mistakes and omissions and he was not liable. It may be mentioned here that in the written statement filed by the plaintiffs in reply to the suit of Atma Singh and Sujan Singh, it was pleaded that the money by Nand Singh was deposited in the name of his wife Hardev Kaur and was paid to the right person.
It has been contended by the learned counsel for the plaintiff firm that the written statement had been filed and all subsequent proceedings in the suit, including the appeal to the High Court, taken at the instance and advice of the respondent, S. Kartar Singh, who was at that time the Registrar of the Pepsu High Court. Another notice was sent to S. Kartar Singh on 27-9-1950 in which it was mentioned that his advocate had asked the plaintiffs that the suit should not be filed till the decision of the High Court.
There is evidence to support the assertion of the plaintiffs that S. Kartar Singh sent a message through Mr. Daily Chand Gupta Advocate who appeared as P.W. 6, that the plaintiff should stay his hands till the decision of the High Court. Ultimately the present suit was filed on 7-7-1951. The suit has been dismissed on the ground that the amount of Rs. 1395/11/9 did not belong to the defendants S. Kartar Singh and Hardev Kaur to whom the payment had been made. It has also been held that the suit is barred by time. In the result the plaintiff firm has been made to pay the amount due to Nand Singh Bala twice over, once to his widow and another time to his two sons.
(4) From the evidence of Meem Chand and the plaintiffs it seems to me that the money was handed to S. Kartar Singh, at that time Sessions Judge of Barnala, on the understanding that his daughter as widow of Nand Singh Bala was entitled to it, and no claim would be made to it by any other person. On the assurance given by S. Kartar Singh the money was paid on the responsibility of Meem Chand. As I have stated earlier it was Meem Chand who had introduced Nand Singh Bala originally to the plaintiff firm when his account was opened, in 1942. On these facts, it appears to me that the proper provision to apply is Art. 83 of the Indian Limitation Act which is as under :
'Upon any other contract Three years When the plaintiff is actuallyto indemnify damnified'.
The payment was made to the sons of Nand Singh Bala in execution of the decree in July 1949 and the suit having been filed on 7-7-1951, is clearly within time. The Courts below have entirely misdirected themselves in holding that the limitation would run from the time when the amount had been actually received by the defendants.
(5) The conclusion of the Courts below that the plaintiff's plea in their written statement in the suit filed by the sons of Nand Singh Bala that the money was deposited in the name of Hardev Kaur and was paid to the right person stands in their way in the present suit, is entirely erroneous. In that suit the plaintiff firm was concerned to defeat the second claim with which it had been confronted and I accept the evidence of the plaintiffs that the plea was taken at the instance of the defendants who actually got Mr. Atma Ram Advocate engaged to defend that suit. The plea raised by the plaintiffs in that suit clearly supported the present defendants and I cannot see how the plaintiffs are debarred from now bringing the suit against them. The claim of the plaintiffs clearly falls within the principle of law enunciated by the Privy Council in the Secretary of State v. Bank of India Ltd., AIR 1938 PC 191:
'It is a general principle of law when an Act is done by one person at the request of another which Act is not in itself manifestly tortious to the knowledge of the person doing it, and such Act turns out to be injurious to the rights of a third party, the person doing it is entitled to an indemnity from him who requested that it should be done.'
This quotation is taken from the judgment of Lord Halsbury in Sheffield Corporation v. Barclay, 1905 AC 392, in which the law with regard to an implied indemnity is expounded, I think this is a clear case of indemnity. The plaintiffs made the payment of S. Kartar Singh on a definite assurance made by him in the Company of Meem Chand. Cause of action in such cases arises when the damage in which the indemnity is intended to cover is suffered. In the present case the damage was suffered when the payment was made to the sons of Nand Singh Bala in execution of the decree. Though it is not necessary in this case, a contract of indemnity can also be inferred. Even in the absence of the evidence of Meem Chand it would have been a legitimate inference to draw that the money was paid to the widow of Nand Singh Bala through S. Kartar Singh under a contract of implied indemnity.
(6) The conclusion of the lower Courts is erroneous in law and contrary to the dictates of justice, equity and good conscience. I would allow this appeal and decree the suit of the plaintiffs with costs throughout.
(7) Appeal allowed.