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Jogendra Nath Chakrabarty Vs. Dinkar Ram Krishna Chettel Plaintiff, and Nagendra Nath Chakrabarty - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1921Cal644,66Ind.Cas.752
AppellantJogendra Nath Chakrabarty
RespondentDinkar Ram Krishna Chettel Plaintiff, and Nagendra Nath Chakrabarty
Cases ReferredSubramanian Chettiar v. Radiresan Chattior
limitation act (11 of 1908), schedule i, articles 59, 601 - suit to recover money kept with defendant--demand, what is--request for money on account, whether constitutes demand. - .....ishur chunder bhaduri v. jibuu kumari bibi 16 c. 25 : 8 ind. dec. (n. s.) 17. that was a case of money deposited with a firm of bankers and article to was held to apply. that case is not an authority for the proposition that that article is limited in its application to claims against bunkers only. this view is supported by the decision of the madras high court in the case of subramanian chettiar v. radiresan chattior 32 ind. cas. 965 : 39 m. 1681; l. w. 168, 30 m. l. j. 246 : 10 m. l. t. 129; (1916) 1 m. w. n. 188, where it was held that under article 60 of the limitation act money left in the bands of a trader who is not a banker will be a deposit in circumstances such as would make it money of a customer where the depositee is a banker and that the word ' deposit' in that article is.....

1. This appeal arises out of a suit brought by the plaintiff against the defendants Nos. 1 and 2 to recover a sum of Rs. 19,518-7.0 according to the account given in the schedule annexed to the plaint. The defendants are brothers living in jointness, the defendant No. 1 being the eldest member of the joint family. The plaintiff's case is this: In the year 1896, he came to a place sailed Fuleswar where the defendants were carrying on business, The plaintiff gradually during his stay at Fuleswar became very friendly with the defendants and mutual confidence soon grew up. From time to time, from the year 1899, he entrusted money with the defendants and up to the year 1903, the total amount entrusted to them came up to Rs 6,700. The terms agreed upon between the parties are said to have been these: The defendants were to keep the money entrusted to them for safe custody; they ware at liberty to employ the same in their money-lending business upon their own responsibility; the money so employed was to carry interest at Rs. 1.40 per cent. per mensem and the rest of the money was to remain with the defendants as deposit and would carry no interest; interest was to be calculated with quarterly rests-and the money was payable on demand. The plaintiff says that from time to time he received about Rs. 1,400 from the defendants, that subsequently the rate of interest was modified and reduced to 12 annas per a cent. per mensem and that according to the agreement between the parties, the total amount due to the plaintiff now is the sum claimed in the plaintiff the defendants deny everything except the fact that in 1896 the plaintiff and the defendant No, 1 came to know each other The plaintiff has filed a number of letters purporting to have been written by the defendant No. 1 and also accounts submitted to him by that defendant from time to time. If these letters are genuine, they fully make, out the case of the plaintiff and show that the defense is a dishonour, able one. The account, Exhibit 4 (a), and other accounts show that interest and compound interest were calculated at the rate claimed in the plaint. That compound interest was agreed upon, also appears from the letter. Exhibits in which Jogendra, the defendant No. 1, says-it becomes quite hard and impossible to realize compound interest of the money from them' that is, the debtors. The fact that interest was payable on money lent to others and not on money that remained in deposit with the defendants is also proved by the accounts which show that the defendants divided the accounts under two heads---one was called the deposit account and the other the account of the money-lending transaction, and that while interest was calculated on money lent bat no interest was calculated on money that remained in deposit. These letters and accounts exhibited in the ease, if genuine, prove the plaintiff's case to the hilt. The only question of fast that we have to consider is, whether these letters and accounts are genuine or not. The plaintiff had considerable difficulty in proving his case as he is a stranger to the place where the translation took place, being a resident of the Feudatory State of Maurbhanj. The defendants are men of some influence in the locality. The plaintiff fully satisfied the learned Sub-ordinate Judge. by the evidence of some of his witnesses that these letters were written either by or on behalf of the defendants. The letters purport to be signed by Jogendra, the defendant No. 1, but it appears that only Exhibit 2 bears his genuine signature. It is proved, though denied by the defendants themselves, that the accounts and the body of the letters ware mostly written by Jogendra, the son of the defendant No. 2, and that the signatures, though they purport to be of the defendant No. 1, are really in the handwriting of the defendant No. 2. Only as regards Exhibit 2, it has been shown that the signature is of the defendant No. 1. It seems to us, even if the other letters were signed not by Jogendra bat by his brother, that they were signed on behalf of Jogendra, the defendant No. 1 and at his instance. The learned Subordinate Judge has disbelieved the defense and the evidence of the defendants, and we see no reason to differ from his view. There seems to be no reason why the story told by the plaintiff from the witness-box should not be believed in its entirety. It is difficult to imagine that the plaintiff, who is a stranger to the place, should have educated a fake Ante and forged a series of letters and accounts to support it. The defendants say that they are at enmity with a man named Anakul and that it was at his instance that the plaintiff instituted this false suit against them, although his real debtor was the said Anukul and not the defendants. The plaintiff swears that he received the letters from time to time and that he replied to them, Some of these letters themselves-show that they were written in reply to plaintiff's own letters. There seems to be very little room for doubt that the plaintiff received these letters and that they were written, if not by the defendant No. 1, at least, at his instance. Even the letter, Exhibit 2, which as the learned Subordinate Judge has found bears the signature of the defendant No, 1, shows that the defendants had correspondence with the plaintiff. In that letter, Jogendra acknowledges the receipt of a letter from the plaintiff and he says that he was trying his best to secure money but could not say how far he would succeed, That letter alone is sufficient to show that Jogendra's allegation that he had had no dealings with the plaintiff at all, is false. In our opinion, the letters are genuine, and so the accounts that have been filed by the plaintiff.

2. It has, however, been contended that the learned Subordinate Judge has not believed the plaintiff in so far as the case against the defendant No. 2 is concerned, and that we should not believes him altogether. This is not quite correct. The learned Subordinate Judge has refused to pass a decree against the defendant No. 2 on grounds which do not appear to us to be quite sound. He says: An attempt is made to charge him (that is, the defendant No. 2) with liability on the allegation that the brothers were joint in mess and property and that they had joint money-lending business and a joint karbar in paddy. It is true that the brothers are joint in mess and that the ancestral property is joint. There is nothing to show that they had a joint money-lending business or that the defendant No. 2 had any interest in the paddy business.' The claim of the plaintiff was not dependent on the brother carrying on any joint business. His case was that his dealings were with both the brothers and, on that basis, he claimed a decree against both of them. It is, however, not necessary to go into the matter farther as there is go cross appeal against that part of the decree of the Subordinate Judge which exonerates the defendant No. 2 from liability. The finding of the Subordinate Judge does not affect the substantial truth of story told by the plaintiff.

3. It has next been argued that the plaintiff is cot entitled to any interest after the year 1910. Id is urged that the stipulation for the payment of interest was only with reference to the sums that were lent out to others, and that there is nothing to show that after the year 1910, any money was be lent. This contention, in our opinion, is not sound. The account of 1910 shows that there was no money left in deposit with the defendants and that the whole money had been lent out to others. If at any time after 1910 any money tame bask into the hands of the defendants, that was a matter which was specially within their knowledge and the onus to prove that fast was on the defendants under Section 116 of the Evidence Act and they have failed to discharge that onus. It was next urged that the plaintiff's suit was barred by limitation under Article 60 of the Limitation Act. The learned Vakil for the appellant has contended that several demands were made by the plaintiff and that if time is tabulated from the dates of any of these demands, the suit not having been instituted within three years of any of these dates must be held to be barred. If any demand was made, it must have been made by letters written by the plaintiff to the defendants. The defendants deny that they received any letters. That denial is, no doubt, false. They have not produced the letters and the inference is that if they had been produced they would have gone against them, The plaintiff does not admit that he made any demand such as is contemplated in Article 6U of the Limitation Act except one made on the 10th January 1916 when his Solicitor wrote a letter to the defendants demanding from them a sum of Re. 18,880 which was said to be due up to the end of December 1915. Calculated from the date of the letters the suit is in time. Plaintiff, no doubt, speaks of other demands but it appears that those were not demands properly so sailed but only requests for money on account. It now here appears that before the Solicitor's letter the plaintiff had demanded the whole of the money that was due to him. In that view, of the case if Article 60 applies, the claim is not barred by limitation. It has, however, been argue that Article 60 has no application to this case, that the money paid to the defendants was not at all a deposit and that the case is governed by Article 59 of the Limitation Act, That Article refers to money lent under an agreement that it shall be payable on demand. It is argued that this was really money lent to the defendants. We do not take that view. The relations between the plaintiff and the defendants, was not that of a deposit and a borrower. The defendants did not take the money for their own benefit and did not agree to pay interest on it themselves. The nature of the arrangement already set out was this: The defendants Nos. 1 and 2 were to hold the money for cafe custody; and by way of deposit they were at liberty, if they thought it cafe and on their own responsibility and risk, to lend the money to others and that, in case they did so, they were to pay a certain sum to the plaintiff as interest on the money so lent presumably after realizing such interest from the debtors. It has, however, been urged that Article 60 only applies to eases where money is deposited with Bankers and reliance is placed on the decision of this Court in the case of Ishur Chunder Bhaduri v. Jibuu Kumari bibi 16 C. 25 : 8 Ind. Dec. (n. s.) 17. That was a case of money deposited with a firm of Bankers and Article to was held to apply. That case is not an authority for the proposition that that Article is limited in its application to claims against Bunkers only. This view is supported by the decision of the Madras High Court in the case of Subramanian Chettiar v. Radiresan Chattior 32 Ind. Cas. 965 : 39 M. 1681; L. W. 168, 30 M. L. J. 246 : 10 M. L. T. 129; (1916) 1 M. W. N. 188, where it was held that under Article 60 of the Limitation Act money left in the bands of a trader who is not a Banker will be a deposit in circumstances such as would make it money of a customer where the depositee is a Banker and that the word ' deposit' in that Article is used in a non-legal sense. In our opinion, therefore, it is not Article 59 but Article 80 that applies to the present case and the plaintiff's suit 13 not barred by limitation.

4. As regards the question of interest, the learned Subordinate Judge has held that there are no grounds for interfering with the agreement between the parties; and in that view we agree. Although in the beginning the interest was rather high, it afterwards came to be reduced to 12 annas par cent. per month and that cannot be said to be a high rate of interest. It id not a awe where the defendants ware under any necessity to tike the money from the plaintiff. There is no case of any undue influence. Very likely the defendants found it profitable to invest the plaintiff's money. That being so, they are bound by the contract which they entered into with the plaintiff.

4. We accordingly affirm the decision of the learned Subordinate Judge and dismiss the appeal with costs.

Richardson, J.

5. I agree.

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