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Nanda Lal Bose Vs. Ashutosh Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in52Ind.Cas.65
AppellantNanda Lal Bose
RespondentAshutosh Ghosh and ors.
Excerpt:
limitation act (ix of 1908), section 10, applicability of - money deposited as security--payment to make good defalcations--suit to recover money paid--limitation. - .....a gomasta under the court of wards from july 1909 to february 1910. as gomasta he deposited his savings bank pass book as security with the manager. he was dismissed in 1910 and a certain amount was found due from him on account of defalcations made by him. the petitioner, who was then the manager under the court of wards, withdrew a sum of rs. 222-14-5 from the post office savings bank account with the sanction of the collector and with the consent of and under authority from the plaintiff on the 8th july 1913. the plaintiff demanded the money from the defendant no. 5 and this was refused on the 14th september 1913. the estate was released from the court of wards to the defendants nos. 1 to 4 on the 1st march 1917. the present suit was instituted by the plaintiff on the 25th february.....
Judgment:

1. This was a Rule calling on the opposite party to show cause why the judgment and decree of the lower Court passed against the petitioner should not be set aside.

2. The petitioner who was the manager of the estate of defendants Nos. 1 to 4 under the Court of Wards from 7th May 1911 to 30th April 1914, was defendant No. 5 in the suit. The plaintiff opposite party Was a gomasta under the Court of Wards from July 1909 to February 1910. As gomasta he deposited his Savings Bank Pass Book as security with the manager. He was dismissed in 1910 and a certain amount was found due from him on account of defalcations made by him. The petitioner, who was then the manager under the Court of Wards, withdrew a sum of Rs. 222-14-5 from the Post Office Savings Bank account with the sanction of the Collector and with the consent of and under authority from the plaintiff on the 8th July 1913. The plaintiff demanded the money from the defendant No. 5 and this was refused on the 14th September 1913. The estate was released from the Court of Wards to the defendants Nos. 1 to 4 on the 1st March 1917. The present suit was instituted by the plaintiff on the 25th February 1918,

3. The defendant No. 5 contested the suit inter alia on the grounds, first, that the suit could not' be maintained without a notice under Section 80 of the Civil Procedure Code, secondly, that the suit was barred by limitation, having been instituted more than three years after the date of the refusal to pay the money, and thirdly, that he was not in any case personally liable for the amount, he having withdrawn the money with the sanction of the Collector and credited the same to the account of the estate.

4. The learned Small Cause Court Judge overruled the plea set up by the defendant and decreed the suit against the defendant No. 5 personally, holding that the defendants Nos. 1 to 4 were not liable,

5. The defendant No. 5 obtained this Rule.

6. We are of opinion that the suit is bar by limitation. The money was withdrawn on the 8th July 1913 and the suit was instituted on the 25th February 1918. The learned Judge below was of opinion that Section 10 of the Limitation Act was applicable, as a public as he held that the money in the hands of the manager or the Postal Savings Bank Pass Book which be converted into money was trusty property. We are of opinion that there was no trust in favour of the plaintiff and Section 10 of the Limitation Act is not applicable to the present case.

7. Apart from the question of the vesting in trust for a specific purpose. we think that no property had vested in the petitioner in trust for the plaintiff. So long as the money remained in deposit with the Savings Bank, the petitioner had no control whatever over it; he could not withdraw the amount without authority of the plaintiff and in fact when this amount was withdrawn, if. was done with his consent and authority though it is stated that the authority was obtained by means of threat. If there was any trust at all, the manager was trustee for the proprietor's estate. However that may be, the money having been withdrawn from the Post Office with the authority of the plaintiff cannot be said to have been held in trust for the plaintiff by the petitioner and Section 10 does not apply to the present case. The suit having been instituted more than 3 years after the refusal to 'pay the money, it was barred by limitation.

8. Although this is sufficient for the disposal of the case, it may be mentioned that our attention has been drawn to certain documents certified copies of which have been produced before us and which show that the entire amount, namely, Rs. 222-14 5 withdrawn from the Post Office Savings Bank was credited to the account of the estate. It appears that these papers were not before the Court below at the original hearing and were produced before that Court when an application for review was made.

9. The Rule is accordingly made absolute and the suit against the petitioner must be dismissed with costs.

10. The petitioner is also entitled to costs of this Court, which we assess at two gold mohurs.


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