1. This is a civil revision petition filed against the decree and judgment of the learned Small Cause Judge of Tanjore in S. C. No. 1177 of 1949.
2. The facts are : The plaintiff, R. Subramania Aiyar, was appointed as clerk of the defendant, Ahilyamba Chatram Devasthanam, in 1927. It is evident from. Ex. A. 1 that as security for the proper fulfilment of his duties as a clerk under the defendant devastanam, the plaintiff deposited as security on three occasion amounts aggregating to Rs. 200. The receipts for these payments are Exs. A. 2 to A. 4. The plaintiff left the service of the Devastanam in 1930. He gave a registered notice on 15-1-1947 for return of the amount deposited. The devastanam did not comply with the demand. Hence the suit in the lower court.
3. The controversy in the lower court and here is whether Article 120 or Article 145, Limitation Act, applies to the case. If the former is the case, the suit is barred by time and if the latter is the case, the suit is within, time.
4. A suit to recover a sum of money deposited as security for proper performance of the duties of an office and from which the employer was entitled to deduct all sums not accounted for by the employee, comes under Article 120, Limitation Act. But authority is not wanting for the view that the amount is also a deposit which comes under Article 145, Limitation Act. The decisions of the Madras High Court were not always uniform. In --'Narayanaswami v. Alyasami', 18 Ind Cas 921(A), where A gave B twenty loose rubles in order, that B might give them to a gold-smith and have them made into a jewel and on the failure of B to do so, A sued him for the rubies or their value, it was held by Sadasiva Aiyar J. that the transaction was a 'man-datum', and not a deposit in the legal sense as the moveable property bailed was not itself to be returned in the condition which it would naturally remain at the time of the return (along with any natural accretions) if any such accretions happened to be added) but the defendant promised to have some work performed in connection with the rubies and to deliver a jewel into which the said rubies had to be worked.
In -- 'Balakrishnudu v. Narayanaswami Chetti', AIR 1914 Mad 51 (B), it was held by Wallis J. that the word 'deposit' in the article must be taken to mean the sort of bailment known to lawyers under that name, in the Roman law of bailments which was accepted by Bracton and afterwards by Lord Holt in -- 'Coggs v. Bernard', (1694) 92 ER 107(C). He further observed as follows :
'This depositum is a bailment of a specific thing to be kept for the bailor and returned when wanted as opposed to 'commodatum', where a specific thing as a horse or a watch is lent to the bailee to be used by him and then returned; and both are contrasted with 'mutuum' where corn, wine, or money or other things are given to be used and other things of the same nature and quality are to be returned instead. In my opinion there is no ground for holding that in the Acts of 1859 and 1871 the word 'deposit' in the sections and articles already referred to include so called deposits of money or other things which were not intended to be kept but to be used, and there is nothing in the Acts of 1877 and 1908 to show that any different construction should now be put on Articles 133 and 145.
The framers of those Acts were lawyers and must be taken to have used the term deposit in the ordinary legal sense. This conclusion is not, I think, in any way affected by the fact that in 1877 the Legislature introduced a new Article 60 which speaks of 'money deposited under an agreement that it shall be payable on demand', thus using the word 'deposit' not in its legal but in its popular sense.'
5. The decision of Wallis J. was affirmed on appeal in -- 'Balakrishnadu v. Narayanaswami', AIR 1914 Mad 4 (D) and Sir Arnold White C. J. entirely concurred' in the reasons stated by Wallis J. A contrary view has however been taken in -- 'Kishtappa Chetti v. Lakshmi Animal', AIR 1923 Mad 578 (E), namely, that the word 'deposit' in the article has not been used in the limited sense of 'depositum' but in a wider sense as including a 'commodatum', i.e., a bailment for the use of the bailee., Schwabe C. J., observed that the Legislature meant to use simple and plain language and in using the words 'deposit' and 'depositary' they meant simply to say that when one man's property was handed by that man to another, he became a depositary of it unless there was something in the terms of the handing over which would prevent his being treated as a person with whom it wasdeposited at all. 'It is almost impossible' observed his Lordship further
'that, when they were making a period of thirty years applicable to cases of goods handed over either for safe custody or in pledge, they should have intentionally made a shorter period for cases for goods handed over for the 'advantage' of the person to whom they were handed. It would be most illogical to allow a shorter period in the case where the 'depositee', if I may use the word, gets the advantage than is allowed in the case where the depositee is merely doing something for the advantage of the depositor, and it is to be observed that cases not coming under Article 145 come nowhere, unless indeed they can be brought within the words of Article 49,'
The latest decision of the Madras High Court in -- 'AIR 1923 Mad 578 (E)', is in conformity with other decisions and appears to be the better view that in case of this nature Article 145 applies.
Once the Calcutta High Court itself held that Article 145 contemplated deposit or pawn of an article to be returned in specie and therefore does not apply where the property is money deposited with a banker. But a contrary view was subsequently taken and according to Holm-wood J. the return of money in current coin, though not of the identical coin given, is returning it in specie : -- 'Lala Gobind Prasad v. Chairman of Patna Municipality', 6 Cal LJ 535 (F). In -- 'Bibhutibhushan v. Anadinath' : AIR1934Cal87 , where there was a deposit of Government promissory notes as security for services and as a partition of the family one branch received the notes and was sued by another branch for the recovery of its share of those notes, the meaning of this article as given in -- 'AIR 1923 Mad 578 (E), was approved and followed. In -- 'Ram Ranbijay v. Bachai Kuari', AIR 1839 Pat 688 (H), it was held as follows :
'It may very well be that Article 145 when speaks of the depositee and pawnee recovering moveable property deposited or pawned that may include money or coin. Their Lordships of the Privy Council in -- 'Ashgar Ali v. Khurshed Ali', 24 All 27 (PC) (I), have held that the words 'moveable property' in Article 89 were sufficiently wide to cover money.'
The reason why such a long period of thirty years has been fixed for suits for recovery of deposits and pawns, has been stated by Doyle J. of the Rango'on High Court in -- 'MaShwe On v. Ma Saw', AIR 1928 Rang 309 (J), as follows :
'It is significant that Section 10, Limitation Act, does not allow limitation to be set up at all by a trustee in the case of an express trust. It is only reasonable therefore to suppose, in cases like the above where there is a transaction in the nature of a trust that the law would contemplate a longer period of limitation against a wrong doer than in cases where no trust of any kind had been established.'
Therefore, the view taken by the lower court is correct and Article 145, Limitation Act, applies to this case and this civil revision petition isdismissed and as no one has appeared to oppose without costs.