M.C. Ghose, J.
1. This is an application by the defendant under Section 25, Provincial Small Cause Courts Act. The facts are that the plaintiffs and their predecessors had a certain rice mill and the defendant was their agent. Between 28th April 1928 and 15th January 1930 a large quantity of rice was sent from the mill to the defendant who sold the same and after deducting his commission and other expenses used to send the money to the plaintiffs. The transactions ceased from 15th January 1930, when the mill closed. Thereafter the defendant sent an account to the plaintiffs on 4th September 1930, stating that he owed a sum of Rs. 443 odd which the plaintiffs might have from him on demand. The defendant's case is that the plaintiffs did not make the demand till some date in 1936 and as such the suit is barred by limitation. The Court below held that Article 89, Sch. 1, Lim. Act, applied and that the period of limitation is three years from the date when the agency terminated. But the Court found that the agency did not terminate.
2. In this Court the learned advocate for the plaintiffs has urged that there was a mutual agreement between the parties. The defendant admitted that he owed a sum of Rs. 443 odd and the plaintiffs asked him to keep the sum in deposit until they demanded the same, and that on that basis the proper Article is Article 60, for money deposited under an agreement that it shall be payable on demand and that the limitation is three years from the date when the demand is made. Here it is not disputed that the demand was first made in September 1936. It is also urged by the learned advocate for the plaintiffs that, if not Article 60, Article 64 would apply and the facts establish that there was a simultaneous agreement in writing whereby the sum was made payable at a future time. For the petitioner it is urged that on a fair perusal of the plaint, especially paras. 4, 5, 6 and 7 it is clear that the transactions between the parties ceased in January 1930 and thereafter the defendant in September 1930 sent an account to the plaintiffs stating that he owed a sum of Rs. 443 odd and they might have it at any time on demand, but that the different plaintiffs and their successors had quarrels among themselves and these quarrels were not settled until 1936, and it was only after their own disputes were settled in 1936 that they made the demand upon the defendant, that on a fair construction it cannot be held that the money was left in deposit with the defendant by the plaintiffs. The defendant merely stated that he owed the sum to the plaintiffs and they might have it on demand There is no writing produced to show that the plaintiffs signified that they were keeping the same in deposit with the defendant until they made a demand.
3. The learned advocate for the plaintiffs quoted the case in J. Lazarus v. Krishna Chunder De (1901) 28 Cal 393 where a suit was brought by the plaintiff in June 1897 to recover a certain sum of money from the defendant on the allegation that there was a registered agreement between the parties whereby the plaintiff was to use a godown belonging to the defendant for the purpose of storing jute purchased by him, the defendant being promised a certain commission in return. There was also a verbal agreement to the effect that the sums of money would be sent by the plaintiff to the defendant who would hold the same in deposit as a trustee, that on demand the defendant would pay to the plaintiff the balance left after making the necessary payment for the purchase of jute, that in April 1894 the defendant submitted an account which showed that a certain sum of money remained surplus in his hands, that the defendant not having allowed the plaintiff to carry on the business in his godown in 1894 the plaintiff demanded the said sum of money in July 1894 which the defendant did not pay. The defence inter alia was that the suit was barred by limitation. It was held by this Court on the facts that the suit was not barred by limitation. There it was observed that the defendant held the money as a trustee on behalf of the plaintiff. In the present case there is no such case of trust made out in the plaint. For the defendant petitioner the case in Keshoprasad Singh v. Sarwanlal AIR 1917 Cal 156 was quoted. There it was held that where an account is taken and adjusted and a specific sum has been found due from the agent to the principal, the principal becomes entitled to sue forthwith for the recovery of that money, and that either Article 64 or Art, 115 applies in such a case.
4. In my opinion, Article 64 applies to the facts of the case. For money payable to the plaintiffs, for money found to be due from the defendant, the limitation is three years from the date when the accounts are stated in writing signed by the defendant. Now in this case the defendant stated in writing in September 1930 that Rs. 443 odd was due from him. Indeed it is on that writing that the present claim is based. The learned Advocate for the plaintiffs urged that there was a simultaneous agreement in writing whereby the amount was made payable at a future time. This however is not made out on the plaint itself. It is there merely stated that the defendant said that the money was owing from him and held in deposit for the plaintiffs payable on demand. The plaint thereafter stated that they, on account of quarrels among themselves, did not make a demand till September 1936. As there was no simultaneous writing between the two sides, the case is governed by limitation of three years, and as the plaintiffs did not make a case within three years of the account, which was made in 1930, the suit fails and must be dismissed. The Rule is made absolute and the suit is dismissed. Having regard to the circumstances the parties will bear their own costs. The petitioner will be at liberty to withdraw the sum deposited in this Court as security.