P.N. Shinghal, J.
1. Plaintiff Badriprasad has been unsuccessful in both the courts below and has preferred this second appeal which arises from the appellate judgment and decree of the learned. District Judge of Bharatpur, dated April 12, 1961
2. The admitted facts are quite sufficient for the disposal of this appeal and may be briefly stated. The plaintiff carried on business in the former State of Dholpur under the name of M/s Bharatsingh Kanhiyalal, which was a joint family firm. The plaintiff wanted to export 270 maunds of 'ghee' from Dholpur to Hawrah and for that purpose a permit was required from the Dholpur State. According to an arrangement between the parties, the plaintiff was asked to deposit the customs duty on the export of ghee at the rate of Rs. 22 per maund, in advance. The plaintiff therefore deposited Rs. 5,940 on October 7, 1947, under entry Ex. 29, and a permit was issued three days' later, on October 10, 1947, allowing the plaintiff to export 270 maunds of ghee to Hawrah.
The permit, in the first instance, was valid upto October 31, 1947, but as there were certain restrictions on the booking of goods by railways, its period was extended upto March 31, 1948. The ghee, in the meantime, had become old and the plaintiff did not export it. So an application was made by the plaintiff on March, 26, 1948, to the Dholpur State authorities, for refund of Rs, 5,940. It seems that nothing happened on that request for quite sometime. Ultimately, the Commissioner of Customs and Excise of the successor State of Rajasthan informed the plaintiff on July 16, 1953, that the refund could not be allowed. Thereafter the plaintiff instituted the present suit on July, 5, 1956, for the recovery of Rs. 5,940 as the original deposit, and Rs. 2,950/8/- on account of interest, making a total of Rs. 8,890/8/-. The plaintiff specifically pleaded that it was a case in which the customs duty had only been deposited in advance and that as the ghee was not ultimately exported, the plaintiff was entitled to the refund of the deposit.
In paragraph 13 of the plaint, it was pleaded that the cause of action arose on July 16, 1953, when the Commissioner of Customs and Excise first of all refused to refund the money and that the suit was accordingly governed by Article 120 of the Limitation Act. At the same time, the plaintiff pleaded that it was entitled to an extension in the time limit for the filing of the suit because of certain alleged acknowledgments of liability on the part of the defendant, but the plaintiff does not now rely on that plea. It was with these averments that the suit was raised against the State of Rajasthan,
3. The State took several pleas in its written statement, but it is not necessary to refer to them because, as has been stated, the facts mentioned above are admitted in this Court by both the parties. As many as eight issues were framed in the trial court, but as the controversy in this Court relates only to the question of limitation, it is not necessary to refer to the other points in controversy.
4. The learned Civil Judge of Dholpur, who tried the suit, reached the conclusion that, the plaintiff's case was governed either by Article 62 or Article 97 of the first schedule of the Limitation Act, and that Article 120 had no application to it. On the application of either of the two articles, the learned Judge held that the suit was barred by limitation and dismissed it by his judgment dated October 16, 1958. An appeal was preferred to the District Judge of Bharatpur. It was urged before him that the case was covered by Article 120 of the Limitation Act, but that contention was rejected. The learned Judge held that the case was not covered by Article 97. According to him, it was Article 62 which alone was applicable to the suit, and as it had been instituted beyond the period of three years, he upheld the trial court's decree and dismissed the appeal. This is how the present second appeal has arisen.
5. It is agreed in this Court that entry Ex. 29 in the register of the Customs department of the former Dholpur State evidencing the deposit in question, is quite sufficient for the purpose of determining the nature of that deposit. The English rendering of that entry is as follows :--
'Receipt No. 12. Dated 7-10-47. M/s Bharatsingh Kanhiyalal, Kothi, on account of Customs duty on ghee weighing 270 maunds at the rate of Rs. 22 per maund deposited Rs. 5940 under receipt No. 12.'
It cannot therefore be doubted that the deposit was on account of the payment of the customs duty for the export of 270 maunds of ghee and it is admitted that the plaintiff was granted a permit to export that much ghee to Hawrah. In fact in paragraph 9 of the plaint the plaintiff admitted that 'customs duty was only deposited in advance.' Thereafter, in paragraph 10 of the plaint, it was mentioned that the plaintiff had made the first demand for the refund of the money on March 26, 1948, and that it had not been paid since then and had been 'detained illegally.'
Paragraph 13 of the plaint contained the further averment that the cause of action for the suit arose on July 16, 1953 when the Commissioner of Customs and Excise refused to refund the money. It may also be mentioned that both the courts below have recorded a concurrent finding of fact that the deposit in question was by way of advance payment of the customs duty.
6. It would thus appear that the plaintiff did not take up the plea that there was any element of entrustment in the deposit, So also, it was not pleaded that the plaintiff was entitled to the refund of the deposit on the very date when it was made, or that the cause of action otherwise arose on the date of the deposit. On the other hand, the plaintiff contended that the amount had become refundable because the ghee was not ultimately exported under the permit for which the deposit was made; and this was the subject-matter of issue No. 2. It was also not the case of the plaintiff that the deposit was made under the provisions of any law and in fact the learned counsel submitted at the bar that, they could not rely on any law of the former Dholpur State for purposes of the present claim. It would therefore be fair and reasonable to conclude, as a fact, that the deposit was made and was refundable under a contract between the parties, and that the cause of action arose a few months later when the plaintiff found that it was not in a position to export the ghee.
In other words, it would be reasonable to conclude that the deposit was made to serve two purposes : First, it was a guarantee that the plaintiff would export the ghee and on that assurance the permit was issued by the State. Second, it was an advance payment of the customs duty upto the extent of the quantity specified in the permit, It would therefore follow that the deposit was made under an agreement between the parties and it was to be appropriated in terms of that agreement. Even though it has not been pleaded or proved that there was a direct agreement for the refund of the deposit in case the plaintiff failed to utilise the permit, it would be fair to take the view that there was an implied understanding that the money would be refunded in case the plaintiff did not export the ghee, or that there would be a proportionate refund, if the export fell short of 270 maunds, to the extent of shortage. Thus the claim for the refund was dependent on the happening of a contingency and it cannot at all be said that it is a case of an unilateral deposit of the nature of an entrustment of property, so as to be payable to the plaintiff on demand.
7. The question is what is the period prescribed under the law for a suit for the refund of such a deposit?
8. It may be mentioned in this connection that the law of limitation in the former Dholpur State was different in certain respects from the law which was made applicable to the Rajasthan State in which the Dholpur State merged in 1949. But the learned counsel for the parties have frankly conceded that by virtue of the legislative changes, the present action is governed by the law of limitation applicable to the Rajasthan State. I shall therefore proceed to examine this case with reference to the Rajasthan law.
9. The plaintiff persistently took the plea in the trial court and the court of first appeal that its case was governed by Article 120 of the Limitation Act and a similar ground was taken by it in the memorandum of its appeal to this Court. But the learned counsel for the appellant realised that the suit would be barred even under Section 120, and he therefore made an application for the leave of this Court to make the submission that the case fell within the purview of Article 145. It would have been necessary for me to decide whether the leave should be granted in the circumstances of this case but Mr. R. A. Gupta has been frank enough to agree that as the appellant's learned counsel does not want to lead any additional evidence and wants to make his submission purely as a question of law on the evidence as it stands, he may be heard on the point. Mr. Mehta has frankly conceded that the suit is not within limitation under Articles 62, 97 and 120, and so the only point for decision is whether the case is governed by Article 145.
10. In this connection, Mr. Mehta has argued that the deposit in question was a simple deposit and that there would be no obstacle in the way of his contention that the plaintiff's claim should be governed by Article 145 of the Limitation Act, and that as the suit was instituted well within the period of 30 years prescribed under that article, this Court should take the view that the suit is within limitation. The learned counsel has supported his argument by reference to Union of India v. Firm Vazir Sultan and Sons, AIR 1966 Andh Pra 218. He has also made a reference to Ahilyamba Chatram v. R. Subramania Ayyar, AIR 1954 Mad 101 for the same purpose.
11. On the other hand, Mr. R. A. Gupta has argued that Article 145 will not be attracted in the absence of a plea that the deposit was in the nature of entrustment and that, as this was not so, there could be no question of application of Article 145. In support of this submission, the learned counsel has placed reliance on Nasiruddin v. Abdullah Mian, 1959 Raj LW 317, State of Rajasthan v. Shamlal, 1960 Raj LW 257 : (AIR 1960 Raj 256), Kistur Chand v. State of Rajasthan, 1962 Raj LW 446, Ram Ranbijay Prasad Singb v. Mt. Bachai Kuari, AIR 1939 Pat 688, The Western India Oil Distributing Co. Ltd., Madras v. V. K. Rathnasabapathy, AIR 1948 Mad 76 (2), Union of India v. Bhagwan Industries Ltd., AIR 1957 All 799 and Dhanraj Mills Ltd. v. Laxmi Cotton Traders, Bombay, AIR 1960 Bom 404.
12. In order to appreciate the controversy, it would be as well to refer to Article 145 to the first schedule to the Limitation Act. which reads as follows--
'145.Against a depositary or pawnee to recover moveable property deposited or pawned
Thirty years.The date of the deposit of pawn.'
A perusal of the Article shows that there are three points to be borne in mind while considering its application : (i) the Article does not appear in that part of the Schedule which deals with claims for the recovery of money, (ii) the claim for refund of deposit mentioned in the Article ranks with a claim in respect of a pawn, and (iii) the starting point of limitation is the date of the deposit. All these features of Article 145 are important and have to be considered while deciding the question of its applicability to the present case. On a consideration of all these three features, I have no doubt that a deposit falling within the purview of Article 145 should be in the nature of an entrustment for, in that case, the depositor would be entitled to claim the deposit from the very date on which he made it and the question of deferring the cause of action to a subsequent date will not arise.
As has been stated, it has to be remembered that the expression 'depositary' occurring in Article 145 is on a par, and appears alongside with, the other expression 'pawnee' in Article 145 and this also supports the view that the deposit referred to in Article 145 is a deposit in the nature of an entrustment. But the plaintiff did not take the plea that it had made any entrustment of the money to the defendant, and in view of the finding of fact that the deposit was made under a contract between the parties and its refund was dependant on the contingency that the plaintiff did not export the ghee, it would be fair to conclude that the State did not stand in a position of a 'depositary' in its relationship with the plaintiff within the meaning of Article 145. It cannot therefore be contended with any justification that Article 145 is attracted to the present claim.
13. There is another way of testing the correctness of this conclusion. As has been mentioned, the period of limitation, in the case of a deposit falling within the purview of Article 145 of the Limitation Act, starts from the date of the deposit. It is therefore obvious that on that date there should be a cause of action for the plaintiff to make his claim. In other words, he should have the right to sue on that date, for the refund of the deposit. It is however admitted that the plaintiff could not have claimed a refund of the deposit when he made it on October 7, 1947, and even the plaintiff has not stated in the plaint that his right to sue accrued on that date. On the other hand, it was stated in paragraph 13 of the plaint that the cause of action arose on July 16, 1953 when the Commissioner of Customs and Excise refused tn refund the money.
In this Court, however, Mr. Mehta made the submission that, according to the plaint, the cause of action should be deemed to have arisen on March 26, 1948 when the plaintiff made the first demand for the money, but even if this contention is accepted as such, it does not improve the plaintiff's case because the fact still remains that, according to its own admission, it had no cause of action on the date of the deposit. The plaintiff wanted to export ghee to Hawrah and was liable to pay customs duty at the rate of Rs. 22/- per maund and it is admitted that it was necessary for it to obtain a permit for the export. It therefore made the deposit on October 7, 1947. in order to obtain the permit, which was issued to it three days later. The plaintiff also secured an extension in the time limit which had been prescribed in the permit for the export of the ghee and that period expired on March 31, 1948. There could therefore be no claim for the refund of the money on the date of the deposit in view of the arrangement which the parties had willingly made and which was really a contract governing their relationship.
In these facts and circumstances, when the plaintiff could not have asked for the refund of the money on the date of the deposit, or, in other words, when the cause of action had not been arisen so as to entitle the plaintiff to bring his suit for the money on the date of the deposit, there could be no question of the application of Article 145 of the Limitation Act for it is the sine qua non of a deposit falling within the pui'view of that Article that the depositor should be in a position to ask for its refund on the very date of the deposit.
14. This view is supported by the cases which have been cited by Mr. Gupta. Although AIR 1939 Pat 688 was a case which related to the return of the money deposited with an employer as security for good conduct, their Lordships of the Patna High Court, while considering the application of Article 145, made the following important observation:
'The period from which limitation runs under Article 145 is the date 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 the Legislature never intended that that Article should apply to the facts of such a case as this.'
The weight of this observation is obvious.
15. In fact the judgment in Ram Ran-bijay Prasad Singh's case was followed by this Court in 1959 Raj LW 317. That was a case relating to a lease, and under the agreement a sum of Rs. 420/- was deposited with the landlord as security for the due fulfilment of some of the terms of the lease. The tenant filed the suit sometime later on the ground that the landlord had never handed over possession of the leased premises to him and the amount had become refundable. It was canvassed on behalf of the plaintiff that the case fell within the purview of Article 145 of the Limitation Act. That contention was negatived by Bapna J. on the ground that the cause of action to the plaintiff could arise only at the end of the lease and that it would be a curious state of affairs if limitations were to start without the accrual of the cause of action. The learned Judge relied heavily on Ram Ranbijay Prasad Singh's case. AIR 1939 Pat 688 to reach that conclusion
16. The judgment in Ram Ranbijay Prasad Singh's case, AIR 1939 Pat 688 also came up for consideration in AIR 1960 Bom 404, and Chagla, C.J., who spoke for the court, took the view that the deposit contemplated by Article 145 was a deposit which must take colour from the expression 'pawnee' and that there should be an element of entrustment by way of security for a debt as in a pawn, or safe custody as in a deposit. Their Lordships upheld the view of the Patna High Court in AIR 1939 Pat 688 and reached the conclusion that if the cause of action had not accrued to the depositor on the date of the deposit, Article 145 will not be applicable and that any other construction would be totally opposed to the principle underlying the law of limitation, namely, that limitation begins to run from a point of time when the cause of action has accrued to the party who files a suit to assert his right. I am in respectful agreement with this view. Reference may be made to AIR 1948 Mad 76(2) in which also a similar view has been taken.
17. AIR 1966 Andh Pra 218 cited by Mr. Mehta does not, if I may say so with utmost respect, consider all the aspects of (sic) case falling under Article 145 of the Limitation Act. That was a case in which an amount was deposited as security for the due performance of the functions of the plaintiff as an auctioneer and the learned Judge who decided the case took the view that it was governed by Article 145 of the Limitation Act. He cited Kishtappa Chetty v. Lakshmi Ammal AIR 1923 Mad 578, in support of his view, but it may be mentioned that that case was not approved by the Madras High Court in Official Receiver South Arcot v. Kulandaivelan Chettiar AIR 1946 Mad 519. The learned Judge also made a reference to AIR 1954 Mad 101, but it appears to me that that case was distinguishable because it did not deal with a deposit made for the performance of a contract which was refundable only on a contingency
Besides, the judgment of Chagla C J. in the case of AIR 1960 Bom 404 was not brought to the notice of the learned Judge who decided the case of AIR 1966 Andh Pra 218 The learned Judge seems to have found support for his view from Mohammad Habibul Haq v. Tikam Chand, AIR 1938 PC 110 but a perusal of that judgment shows that the Privy Council really considered a case in which government promissory notes were deposited by a debtor with his creditor by way of security and that was why Article 145 was held to be applicable. It appears to me that AIR 1966 Andh Pra 218 does not take into consideration the three special features of Article 145 to which I have made a reference and on which I have taken the view that a case like the present does not fall under Article 145 I am therefore unable to subscribe to the view in Firm Vazir Sultan and Sons' case, AIR 1966 Andh Pra 218.
18. For the reasons mentioned above, it appears to me that. Mr. Mehta, (sic)rned counsel for the plaintiff-appellant, has not been able to make out a case for the application of Article 145 of the Limitation Act. It is agreed by him that the plaintiffs suit would be barred under any of the other articles, namely Articles 62, 97 and 120 of the Limitation Act. The appeal therefore fails and is dismissed, but in the circumstances of the case I make no order as to the costs in this Court.