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Vinaitheethal Achi Vs. Chidambaram Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberAppeal No. 251 of 1962
Judge
Reported inAIR1972Mad238
ActsLimitation Act, 1908 - Schedule - Article 60
AppellantVinaitheethal Achi
RespondentChidambaram Chettiar and ors.
Cases ReferredMeenakshi Achi v. Subramaniam Chettiar
Excerpt:
commercial - recovery - article 60 of schedule to limitation act, 1908 - under article 60 money deposited under agreement be payable on demand - such demand includes money of customer in hands of banker - period of limitation is 3 years when such demand made. - - firm at debein was a banking firm, that the suit amount was deposited with that firm as deposit made at a particular place of business of the banking firm and having regard to the well-settled law governing banker's liability to repay his customer's debt, the amount would be payable only at dabein and not in india. the demand in this case was made only towards the end of 1958, and as such the suit is clearly in time......chettiar were partners, their representatives could not be held to be personally liable for the suit money and that the legal representatives of the original partners were only liable to the extent of the assets of the partnership firm in their hands. there is no substance in this contention of the learned counsel also. ex. a-3, the renewal deposit letter, was issued by the agent of the firm on 13-4-1936. m. rm. raman chettiar, one of the partners had died in 1932. since the deposit letter was issued subsequent to the death of raman chettiar, his legal representatives, defendants 1 to 5 and 8 were bound by that renewal deposit letter ex. a-3. this makes defendants 1 to 5 and 8 personally liable for satisfaction of the suit amount. defendants 6 and 7 are the son and grandson.....
Judgment:

V. Ramaswami, J.

1. The plaintiff is the appellant. The suit was filed by the plaintiff for recovery of a sum of Rupees 23,120/- being the principal and interest due on a deposit letter and for costs. The plaintiff was married to the 10th defendant and at the time of the marriage in pursuance of an agreement a sum of Rs. 7,000/- was paid by the 10th defendant as stridhanam to her. This amount was handed over by her to her father M. R. M. Raman Chettiar for investment of the same in P1. RM. ST. Firm, Dabein, Burma, of which her father was also a partner. It was the plaintiff's case that the partners of the firm agreed to receive the amount in deposit and undertook to repay the amount with interest on demand at P. Alagapuri. The partners of the firm were M. R. M. Raman Chettiar, N. S. Chockalingam Chettiar and S. ST. R. M. Raman Chettiar. M. RM. Raman Chettiar the father of the plaintiff died in 1932. After his death a renewal letter Ex. A-3 dated 13-4-1936 was issued by one Natarajan Chettiar, agent of PL. RM. ST. Firm for the principal and interest of Rs. 17,592, Annas 13, pies 6. In this Kaiyezhuthu letter it had been stated that this amount had been credited to the plaintiff's account; the interest was payable at the Rangoon Naduppu rate of interest. Defendants 1 to 5 are the legal representatives of M. RM. Raman Chettiar and 8th defendant is his brother. Defendants 6 and 7 are the heirs of Chockalingam Chettiar who died in 1945. 9th defendant is the son of the deceased S. ST. RM. Raman Chettiar. The PL. RM. ST. Firm was sending vaddi chittai to the plaintiff till 1948.

2. Defendants 6 and 7 filed O. S. 50/56 on the file of the Sub-Court, Pudukottai, against the other defendants for dissolution of the partnership and for taking up accounts and there was a preliminary decree. The plaintiff made a demand of the suit amounts from the defendants by a notice dated 1-12-1958 and thereafter had filed the suit. The defendants had denied their liability and had raised a number of pleas. The learned Subordinate Judge of Pudukottai held that a sum of Rs. 7,000/- belonging to the plaintiff as stridhanam was invested in the firm PL. RM. ST., that this investment was a deposit and not a loan, that Ex. A-3 dated 13-4-1936, which is a renewal letter, was true but it had not been proved to be valid and binding, that the vaddi chittais were sent from the firm to the plaintiff and that the endorsement of part-payments made in Ex. A-3 were genuine. He also held that the suit was not barred by limitation. But on the ground that Natarajan Chettiar who had executed Ex. A-3 had not been proved to be the agent of PL. RM. ST. firm at the time when Ex. A-3 was executed, he dismissed the suit.

3. It is not disputed that Natarajan Chettiar was an agent of the PL. RM. ST. firm. It is also not disputed that Ex. A-3 had been signed by the said Natarajan Chettiar. The learned Subordinate Judge held that Natarajan Chettiar could not have had the power to act as agent on the date of Ex. A-3 solely on the ground that Raman Chettiar, the father of the plaintiff who was acting as the agent of the firm prior to him left Dabein in Pankuni 1936 and Natarajan Chettiar became agent thereafter. He has taken the evidence that Raman Chettiar continued as agent till Pankuni 1936 as though it was till the last date of Pankuni. It might be that he left Dabein in the early part of Pankuni and after he reached India he sent the power to Natarajan Chettiar in which case on 13-4-1936 when Ex. A-3 was executed Natarajan Chettiar would be the agent. Having regard to the subsequent endorsement Exs. A-5 and A-6 and the Vaddi Chittai and other evidence it is reasonable to infer that Natarajan Chettiar was agent of the firm when Ex. A-3 was executed. Further it would have been the easiest thing for the defendants to prove that Natarajan Chettiar was not the agent on 13-4-1936 with reference to their accounts instead of putting the plaintiff to strict proof. The defendants have not chosen to produce the account books or let in any independent evidence to negative the above reasonable inference that Natarajan Chettiar was the power agent on the date when Ex. A-3 was executed. Since it is not disputed that Natarajan Chettiar was an agent of the firm and in the absence of evidence to show that on the date when Ex. A-3 was executed he was not an agent, we are of the view that Ex. A-3 cannot be held to be not valid or binding on the defendants. As already seen, all the other findings were in favour of the plaintiff.

4. The learned counsel for the respondents wanted to support the decree on grounds which have been found against him by the trial court. He contended that it had not been shown that the sum of Rs. 7,000/- invested in the firm was the stridhana money of the plaintiff. The plaintiff as P. W. 1 has spoken to her case that when her sister died and the 10th defendant wanted to marry the plaintiff as his second wife, her father insisted on the 10th defendant providing a sum of Rs. 7,000/- as stridhanam; accordingly this money was given to her by the 10th defendant as stridhanam and this was handed over to her father Raman Chettiar. She also stated that the partners of the firm undertook to act as trustees for augmentation and repay the amount to the plaintiff on demand in P. Alagapuri and in pursuance of that undertaking the amount was invested in PL. RM. ST. firm at Debein. This evidence has not been contradicted. P.W. 2 who succeeded Natarajan Chettiar as power agent of the firm corroborates the evidence of P.W. 1. Further, Ex. A-3 the renewal deposit letter was issued by the firm on 13-4-1936 in favour of the plaintiff. The firm had also sent vaddi chittais Exs. A-8 to A-12. Ex. A-3 also contains two endorsements of payments Exs. A-5 and A-6 by one of the partners of the firm. We, therefore, have no hesitation to confirming the finding of the trial Court that the said sum of Rs. 7,000/- was the stridhanam money of the plaintiff and that it was invested in the firm PL. RM. ST. firm as deposit.

5. It is next contended by the learned counsel for the respondent that the suit was not maintainable on the ground that PL. RM. ST. firm at Debein was a banking firm, that the suit amount was deposited with that firm as deposit made at a particular place of business of the banking firm and having regard to the well-settled law governing banker's liability to repay his customer's debt, the amount would be payable only at Dabein and not in India. The learned counsel further submitted that even if the suit was maintainable since the amount was payable only at Dabein in Burma, the execution of the decree should be stayed pending receipt of the assets of the firm from Dabein in Burma. An identical contention was raised with reference, to the same firm (PL. RM. ST.) at Dabein in a suit filed in the Sub Court at Pudukottai by another creditor and this came up for consideration before this Court and in Karuppan Chettiar v. Somasundaram Chettiar, : AIR1961Mad122 .

A Division Bench of this Court held, as noted in the head-note in the judgment, that the essence of the relationship of banker and customer is the affording of the facility to the customer to draw funds from the bank by issuing of cheques. In the absence of such a facility the term 'banker', though loosely applied to money-lenders, cannot be applied to ordinary money-lending business carried on by Nattukottai Chettiars in India or in foreign parts. Hence the rules of common law regarding the liability of a bank to pay the amount only at the branch where it is deposited cannot be applied to transactions with such-money-lenders. Where money is deposited in Indian currency with a money-lender, who is a permanent resident of India, it is implicit that the borrower agrees to repay the money back in India and in Indian currency. The investment of the amount in a foreign firm is merely incidental to the use of the loan. A debt arising out of a contract is deemed to be situated in the place where it is properly recoverable; that is normally the country where the debtor is resident. We respectfully agree with this judgment of the Division Bench and hold that the suit is maintainable and the execution of the decree cannot be stayed in these proceedings.

6. It is next contended by the learned counsel for the 6th and 7th defendants that since the original deposit was when M. RM. Raman Chettiar, N. S. Chockalingam Chettiar and S. ST. RM. Raman Chettiar were partners, their representatives could not be held to be personally liable for the suit money and that the legal representatives of the original partners were only liable to the extent of the assets of the Partnership firm in their hands. There is no substance in this contention of the learned counsel also. Ex. A-3, the renewal deposit letter, was issued by the agent of the firm on 13-4-1936. M. RM. Raman Chettiar, one of the partners had died in 1932. Since the deposit letter was issued subsequent to the death of Raman Chettiar, his legal representatives, defendants 1 to 5 and 8 were bound by that renewal deposit letter Ex. A-3. This makes defendants 1 to 5 and 8 personally liable for satisfaction of the suit amount. Defendants 6 and 7 are the son and grandson respectively of Chokalingam Chettiar and other partner. The said Chockalingam Chettiar died in 1945; but subsequent to the death of Chockalingam Chettiar, we have Ex. A-12, the Vaddi Chittai for the period 13-4-1942 to 12-4-1948. This is an acknowledgment of liability by the succeeding partners. The new firm, so to say, consisting of the legal representatives of the deceased M. RM. Raman Chettiar and Chockalingam Chettiar and the third original partner Raman Chettiar, has assumed liability to pay the debt and the plaintiff by not insisting on the payment of the amount immediately on the new firm coming into existence had agreed to look into the new firm for payment and discharge the old partnership from its liability. We have no doubt that Ex. A-12, Vaddi Chittai, issued in favour of the plaintiff was true, valid and binding on the firm. The trial Court also had accepted the vaddi chittai as having been issued by the firm overruling the contention of the defendants 6 and 7 that there were certain discrepancies in the evidence of P. Ws. 1 and 2. We accept the finding of the trial court and hold that Exs. A-8 to A-12 vaddi chittais were issued by the firm PL. RM. ST. at Dabein and they were valid and binding on the defendants. The 9th defendant has remained ex parte and had not contested the claim. We have, therefore, no doubt in holding that the new firm had agreed by way of novation to assume the liability for the existing debt of the old firm and the plaintiff had also agreed to accept the new firm as her debtor and that therefore, the defendants were also personally liable for payment of the suit amount. In this connection, we may also refer to the decision in Meenakshi Achi v. Subramaniam Chettiar, 69 MLW 704 : AIR 1957 Mad 8, wherein a Division Bench of this court had held that if the new firm had assumed liability to pay the debt and the creditor had agreed to accept the new firm as his debtor to discharge his old partnership firm from its liability, the partners of the new firm would be liable to pay the creditor. It may be mentioned that the firm continued to exist even after the death of the original partners.

7. It is next contended by the learned counsel for defendants 6 and 7 that the suit is barred by limitation as it had not been filed within 3 years after O. S. 50/56 on the file of the Sub-Court, Pudukottai was filed by defendants 6 and 7 for dissolution of the partnership. The learned Counsel could not point to any Article in the limitation Act which prescribed that the period of limitation began to run from the date of filing of O. S. 50/56. On the other hand, Art. 60 of the Limitation Act, 1908 prescribes that for money deposited under an agreement that it shall be payable on demand, including money of a customer in the hands of his banker so payable, the period of limitation is 3 years when the demand is made. The demand in this case was made only towards the end of 1958, and as such the suit is clearly in time. It may also be mentioned that it had not been shown that the plaintiff was even aware of the filing of the suit in the Sub-Court for dissolution of partnership.

8. For the foregoing reasons, we allow the appeal, set aside the judgment and decree of the lower Court and decree the suit as prayed for with costs throughout.

9. Appeal allowed.


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