A.K. Gohil, J.: -

The appellant/defendant Bank has preferred this first appeal under section 96 of the Code of Civil Procedure being aggrieved by the Judgment and decree dated 3-2-2000 passed by the Special Additional District Judge, Indore in Civil Original Suit No. 17-B/1999 whereby decreed the suit of the respondent/plaintiff for a sum of Rs. 23,54,707.58 ps. along with interest @ 11% per annum from the date of the filing of the suit till its recovery with costs.

2. The brief facts of the case are that on 8-9-1997 respondent/plaintiff filed a suit for recovery of Rs. 23,54,707.58 ps. on the pleadings that at the material time the respondent/plaintiff was the Proprietor of M/s Oriental Traders, a concern which was dealing as manufacturers representatives, commission agent, Importer and I/A holder. The said firm has now stopped its business but is still in existence. The respondent/plaintiff obtained Letters of Authority from the Joint Chief Controller of Imports and Exports, Bombay for importing raw materials on account of the Licensees to whom the Import licenses had been granted. After receiving letter of Authorities, respondent/plaintiff placed orders with the Foreign suppliers for the import of Raw Materials namely - (i) 59 Cartons of Whatman Filter Papers; and (ii) 224 Cartons of "SASOO" Branch pure olive oil. The respondent/plaintiff approached the appellant/defendant Bank for opening Letters of Credit for the above mentioned two import Consignments. The appellant/defendant Bank opened the letters of credit on 24-8-1973 as L. C. No. 1NDI/7123 and on 21-9-1973 numbered as L.C. No. 1 NDI/7139. The respondent/plaintiff deposited the margin money to the extent 10% of the value of the raw materials and deposited Rs. 4,560.00 on 24-8-1973 for L.C. No. 7123 and Rs. 4,810.00 on 21-9-1973 for L.C. No. 7139. Thereafter the respondent/plaintiff complied with various formalities and regulations like submitting the exchange control copies of the Licenses, Letters of Authority along with the endorsement and negotiated the Letters of Credit on 22-1-1974 and 19-3-1974.

3. The imported consignments arrived in India on 13th March, 1974. As soon as the first consignment was off-loaded at Bombay Port, the respondent/plaintiff with his Clearing Agent went to clear the goods. The Bombay customs refused to clear the consignments, without giving any reasons. The respondent/plaintiff enquired with the Joint Chief Controller of Imports and Exports at Bombay where he was informed that the office of the Joint Chief Controller had no objection to the consignments being released by them. In the meantime the Port Trust issued notices to clear the goods quickly as heavy demurrage was being incurred for non-clearance. The appellant/defendant apprehending auction of the goods by the Port Trust, rushed to the Hon'ble High Court in their capacity of Joint Holder of the Import Licences for safeguarding their goods. The appellant/defendant Bank was Joint Holders of the Import Licenses by virtue of having paid the value of the Import consignment in foreign exchange. Thereafter the appellant/defendant Bank filed four Misc. Petitions before the Hon'ble Bombay High Court. One in respondent's/plaintiffs matter numbering Misc. Petition No. 950 of 1975. In the said petition, the respondent/plaintiff was also made as respondent No. 7.

4. In the said petition, the appellant/defendant Bank had stated the facts of the case which are reproduced in the plaint as para No. 9(A) to 9(Y), out of that the material paras are 9(E) in which it was submitted that the appellant/defendant Bank had requested the Drug Controller to grant permission to clear the said goods from the customs in terms of paragraph 312 Appendix 29 of Hand Book, of Rules and Procedure 73-74. As per the terms of paragraph 312 of the I.T.C. Hand Book of Rules and Procedure 1974 the Customs Department could have no objection of any sort to the clearance of the said consignment having regard to the fact that the petitioner had already opened Letter of Credit and paid the amount. In nut shell in the Misc. Petition No. 950 of 1975 it was submitted by the appellant/defendant Bank that the action of respondents No. 1 to 5 in not releasing the aforesaid two consignments was illegal and invalid, null and void and was mala fide and was in violation of principles of Natural Justice and fair play. The appellant/defendant Bank had also claimed their right to property on the basis that they were the Joint Holders of Licenses under paragraph 312 of the Import Trade Control Hand Book of Rules and Procedures, 1973-1974. It was further pleaded in Para No. 10 of the plaint that in Misc. Petition No. 950 of 1975, the following interim order was passed by the Bombay High Court on 19-11-1975:-

(a) That respondent No. 6 do sell the goods by Public Auction to the highest bidder preference to be given to the actual users holding Drugs Controllers Licenses.

(b) Respondent No. 6 do deposit the net sale proceeds of the goods with the Prothonotary and Senior Master, High Court, Bombay to invest the net sales in Fixed Deposit with Bank of Baroda at Bombay Office.

(c) The sale proceeds shall represent in all respects as if they were the "Goods for all purpose including for the purpose of the Lien on the said goods, if any, of the 6th respondent.

(d) The said sale proceeds shall be held by the Prothonotary and Senior Master, High Court, Bombay subject to the rights of the parties and further orders of the High Court.

5. Pursuant to the said interim order, Public Auctions of the imported material were carried out twice and the sale proceeds were made out to Bank of India, Bombay Branch for Rs. 1,84,485.90 ps. on 24th August, 1976 and Rs. 2,88,228.26 ps. was deposited on 17th November, 1976, thus total Rs. 4,72,714.16 ps, was deposited with the Prothonotary and Senior Master of Bombay High Court. The Misc. Petition No. 950 of 1975 was finally disposed of by the Bombay High Court on 3-10-1979. In sum and substance the order was that the petitioner are entitled to that amount and the Fixed Deposit receipt would stand discharged along with the interest. The petitioner Bank shall pay an amount of Rs. 8,044.18 to Bombay Port Trust authorities towards demurrage charges within a period of 4 weeks and the petitioner Bank would also be liable to pay the customs duty to the Customs authorities in respect of the goods covered under these consignments.

6. In the meantime on 31-12-1976, the appellant/defendant Bank, during the pendency of Misc. Petition No. 950 of 1975, filed a Civil Suit bearing No. 78-B/1976 in the Court of learned Vth Additional District Judge, Indore for the recovery of its total amount with interest for a sum of Rs. 1,27,282.93 and later on after disposal of Misc. Petition No. 950 of 1975 on 3-10-1980 the appellant/defendant Bank withdrew the said suit. On 19-11-1980 by a telegram, the respondent/plaintiff requested the appellant/defendant Bank to refund the surplus amount to him along with the margin money lying in a deposit with the appellant/defendant Bank along with interest @ 19% per annum. The further submission of the respondent/plaintiff in the suit was that no reply of the said telegram was given but when the respondent/plaintiff made enquiries from the Branch Office at Indore, he was told that the respondent/plaintiff would pay after receiving orders from the Bombay Head Office. The respondent/plaintiff once again wrote a letter to appellant/defendant Bank through his Advocate asking for the details of the money appropriated by the appellant/defendant Bank. When the appellant/defendant Bank failed to reply to his letter, the respondent/plaintiff sent a reminder on 1 Irl 1-1980. The appellant/defendant Bank on 2-12-1980 merely acknowledged the receipt of the two earlier letters of the respondent/plaintiff and informed that they were awaiting instructions from higher authorities. Thereafter the respondent/plaintiff wrote letters to the Chairman, Managing Director, General Manager, Assistant General Manager, and Regional Manager of the appellant/defendant Bank complaining about the unco-operative attitude of the appellant/defendant Bank in settling the matters. In the meantime the respondent/plaintiff approached the erstwhile Branch Manager on innumerable occasions from January, 1980 to August, 1988 and finally the respondent/plaintiff through his Advocate called upon the appellant/defendant Bank vide letter dated 12-12-1988 to settle the respondent's/plaintiffs account or face legal action for illegally withholding the surplus money.

7. The further submission of respondent/plaintiff in the plaint was that in 1986, one other debtor of the appellant/defendant Bank namely Indian Crude Corporation represented by Proprietor Shri R. M. Patwa was knowing that the respondent/plaintiffs surplus amount is lying in the Bank, the said Proprietor Shri R. M. Patwa approached respondent/plaintiff to consent for appropriation his debts out of respondent's/plaintiff s surplus, for recovery of Rs. 1,29,708.88. The respondent/plaintiff consented to the said proposal and accordingly on 4-3-1986, an application in the pending Execution Case No. 77-B/1986 before VIII Additional District Judge, Indore was moved for adjustment of his dues. The further submission was that on 31-3-1986 the appellant/defendant Bank agreed to adjust from the surplus amount of the respondent/plaintiff the dues of the judgment debtor Shri R. M. Patwa and this was a clear admission by the appellant/defendant Bank of having surplus money in the account of the respondent/plaintiff. On 7-9-1990 respondent/plaintiff issued a consent letter. Subsequently on 14-9-1990 this consent was withdrawn. Again on 18-2-1991 an application was moved by the respondent/plaintiff consenting to the adjustment and by its reply dated 14-3-1991 by the appellant/defendant Bank the consent was withdrawn and because of the irresponsible attitude of the appellant/defendant Bank, the respondent/plaintiff filed a Writ Petition No. 2840 of 1991 before the Bombay High Court claiming the same relief which he has claimed in the present suit. The said petition was dismissed on 25-10-1991 on the ground of delay, against which respondent/plaintiff preferred Special Leave Petition before the Supreme Court of India which was also dismissed on the ground that the remedy of writ petition is not a proper remedy.

8. Thereafter in Execution Case No. 77-B/1976, the VIII Additional District Judge, Indore passed an order on 2-5-1992 directing the appellant/defendant Bank to adjust the debt of Shri R. M. Patwa from the surplus amount of respondents/plaintiff. Aggrieved by the said order, the appellant/defendant Bank filed a Civil Revision No. 297 of 1992 before the High Court of M. P. Bench at Indore and the said revision petition was called for hearing on 15-2-1995 and on 16-2-1995 the High Court directed the applicant Bank either to adjust the decree and pay the balance to the Non-applicant No. 2 (respondent/plaintiff) or pay back whatever amount is lying with the Bank belonging to the respondent No. 2/plaintiff, in full with interest. In this revision on 24-2-1995, the appellant/defendant Bank submitted statement of account of respondent/plaintiff with the undertaking for giving interest @ 19% on the surplus amount of the respondent/plaintiff and on 30-3-1995 the appellant/defendant Bank applied before the High Court for withdrawal of the undertaking given on 16-2-1995. On 10-5-1995 the High Court disposed of the Civil Revision No. 297 of 1992 directing the appellant/defendant Bank to adjust the decree passed in their favour against R. M. Patwa from the surplus of Oriental Traders, and refund the balance surplus to Oriental Traders. Being aggrieved by the said order, the appellant/defendant Bank filed Special Leave Petition before the Supreme Court of India and the Supreme Court on 12-1-1996 allowed the S.L.P. and set aside the order passed by the High Court. Therefore, after the order passed by the Supreme Court on 12-1-1996 the respondent/plaintiff filed the present suit on 8-9-1997 stating therein that the cause of action for filing this suit arose on 24-2-1995 when for the first time appellant/defendant Bank filed the statement of account in the High Court for the recovery of this amount of Rs. 23,54,707.58 ps.

9. In the suit the the appellant/defendant Bank filed written-statement on 18-7-1998 taking the preliminary objection that the suit is hopelessly barred by limitation and the cause of action arose to the respondent/plaintiff on 19-11-1980 and the suit has been filed after 17 years and in the further pleadings the claim of the respondent/plaintiff was denied in toto. In para No. 33 it was specifically submitted that the statement of accounts and the reply was filed as directed by the High Court did not in any way amount to admission of the claim of the respondent/plaintiff which was patently time barred. The question of legitimate expectation or violation of Article 300-A of the Constitution of India was also denied. It was further submitted that the respondents/plaintiff has no subsisting claim against appellant/defendant Bank. It was further denied that the cause of action arose on 24-2-1995 for filing the suit. As a special pleading in the written statement, it was submitted that the suit transactions are under letter of credit facility where respondents/plaintiffs money were never at stake except to the extent of margin money deposited by him. It was further pleaded that the respondent/plaintiff has no moral or legal right to claim any amount from the sale proceeds of the consignment except to the extent of margin money which has also become barred by time. The respondent/plaintiff could not get the goods released from the Custom authorities Bombay because the import licences have been obtained by fraud or misrepresentation and the respondent/plaintiff could not clear the goods from the Customs, the respondent/plaintiff was forced to involve in the litigation and for that incurred heavy expenditure, therefore, it was prayed that the suit be dismissed as hopelessly and patently barred by time and no suit can be filed on the ground of imaginary grounds of cause of action and appellant/defendant Bank also prayed for exemplary compensatory cost of Rs. 2,00,000.00 along with the dismissal of the suit.

10. On 17-8-1998 the trial Court framed as many as 7 issues, in which issue No. 1 was whether the suit is barred by limitation and issue No. 5 was whether the plaintiff was entitled for a decree of Rs. 23,54,707.58 ps.?

11. The respondent/plaintiff examined only K. G. Kakani as PW-1 and no other witnesses were examined on behalf of the respondent/plaintiff and by judgment and decree dated 3-2-2000 the trial Court has decreed the suit of the respondent/plaintiff for a sum of Rs. 23,54,707.58 ps. along with interest thereon at the simple rate of Rs. 11% per annum from the date of the suit till its recovery along with cost of the suit holding that the suit is not barred by limitation. The respondent/plaintiff is the Proprietor of M/s. Oriental Traders and a sum of Rs. 3,17,989.84 ps. was deposited with the appellant/defendant Bank as surplus which he is entitled @ 19% interest with quarterly rest. The trial Court came to the conclusion that the appellant/defendant Bank is a Trustee of the respondent/plaintiffs money and the cause of action arose to the respondent/plaintiff on 1-8-1997 when respondent/plaintiff demanded the amount by a notice and since the appellant/defendant Bank has failed to produce the document before the trial Court an adverse inference under section 114 of the Evidence Act has to be drawn and suit is to be treated as within time as by Ex. P/25 the statement of accounts were submitted in the execution case before executing Court on 24-2-1995. The trial Court rejected the submission of the appellant/defendant Bank that the limitation had already expired in the year 1992 after passing of the order by the Bombay High Court and relying on the decision in the case of T. C. Chako vs. Annapa and others, reported in AIR 1994 Kerala 107, decreed the suit on the ground that the appellant/defendant Bank was Trustee of the respondent/plaintiffs property as per the provisions of section 10 of the Limitation Act and for recovery of such an amount no limitation would be applicable and found the suit of the respondent/plaintiff in time and decreed the suit vide judgment and decree dated 3-2-2000, against which the appellant/defendant Bank has preferred this first appeal before this High Court.

12. We have heard learned counsel for the parties, perused the pleadings, evidence and documents on record and also considered the oral and documentary evidence as well as record of the case meticulously.

13. Shri P. K. Saxena, learned Senior Advocate appearing for the appellant/defendant Bank criticized the judgment of the trial Court very vehemently and submitted that the trial Court has committed a patent illegality in recording the finding that the suit is within time. The trial Court has not appreciated the oral as well as documentary evidence on record and has not considered the factual and material aspect of the matter while deciding the question of limitation. The trial Court ought to have held that the suit was hopelessly barred by time. The learned counsel for the appellant/defendant Bank also submitted that the doctrine of Trust as per section 10 of the Limitation Act is not applicable in this case as has been applied by the trial Court in decreeing the suit. His second submission was that in this case the principle of res judicata is also applicable on the ground that before filing a suit the respondent/plaintiff had filed a writ petition before the Bombay High Court which was dismissed on 25th October, 1991 with the following order :-

"Looking to the gross delay of more than 11 years, no intervention is called for, dismissed."

14. Thereafter the respondent/plaintiff has preferred a Special Leave Petition before the Supreme Court and the same was also dismissed by order dated 10-2-1992. The following order was passed by the Supreme Court :-

"The Special Leave Petition is dismissed. The remedy by way of Writ Petition was certainly not a proper remedy. Learned Counsel for the petitioner states that he wants to file a suit. We are not concerned with any such thing."

And the matter agitated in writ petition operates as res judicata and also the constructive res judicata. He relied on the decision in the case Gulabchand Chhotalal Parikah vs. State of Gujarat, reported in AIR 1965 SC 1153 and in the case of State of Uttar Pradesh vs. Nawab Hussain, reported in AIR 1977 SC 1680 on the point of order in writ petition operates as res judicata constructively.

15. The another limb of his argument was that if any undertaking is given in any particular case and if the order is reversed by the Superior Court, such an undertaking will wash away. His further submission was that the respondent/plaintiff is relying on the undertaking given by the appellant/defendant Bank in the course of asking an adjustment of amount in some third party execution, this order of the High Court in Civil Revision No. 297 of 1992 passed on 10-5-1995 was challenged in Special Leave Petition and the Supreme Court by order dated 12-1-1996 has already set aside the order of the High Court. Therefore, the submission of the learned counsel for the appellant/defendant Bank is that the order passed in execution proceeding is not helpful to the respondent/plaintiff for getting limitation period extended. Learned counsel for the appellant/defendant Bank relied on a decision in the case of C. J. Govindan vs. State of Gujarat, reported in 1998 JT (5) 389. He further submitted that under section 18 of the Limitation Act, if no acknowledgment was obtained within time that cannot extend the period of limitation and cannot provide a new cause of action for filing a suit.

16. The further submission of the learned counsel for appellant/defendant Bank was that it is not disputed in this case that the appellant/defendant Bank was a joint holder of the goods as per the terms of paragraph 312 Appendix 29 of the Hand Book of Rules and Procedure 1973-1974 and there is no dispute about the same. He further developed his arguments on this point submitting that the respondent/plaintiff was not in a position to retire the goods as he was apprehending that the import licences were obtained either by fraud or misrepresentations. Therefore, on that basis the respondent/plaintiff was not in a position to retire the goods legally and, therefore, he was not interested in lifting the goods. Therefore, his right to retire the goods had come to an end. After a lapse of a long period of time the respondent/plaintiff has filed this suit with a view simply to get the fruits from a tree which was not nursed by him.

17. Learned counsel for appellant/defendant Bank argued at length on the question of limitation and his submission was that since the respondent/plaintiff has not taken any care to retire the goods from custom authorities, and also not taken any steps to file any proceedings before the Bombay High Court, as the Bank had already paid the amount to the Foreign Seller in terms of foreign exchange, therefore, the appellant/defendant Bank was compelled to protect its rights and to file a Writ Petition No. 950 of 1975 before the Bombay High Court, the respondent/plaintiff was also a party in this writ petition as respondent No. 7 but during the pendency of the aforesaid writ petition, he neither filed any reply nor supported the case of the appellant/defendant Bank. The aforesaid writ petition was decided by order dated 3-10-1979 and when the Bank withdrew its Suit No. 78-B/1976 from the Court of V Additional District Judge, Indore which the appellant/defendant Bank had filed to recover the amount which was spent by the Bank thereafter immediately by Ex. P/11 the respondent/plaintiff issued legal notice on 13-10-1980 asking the appellant/defendant Bank to inform the balance amount and also pay the same after deducting the principal amount and interest charged by the Bank and by Ex. P/12 reminder was issued. Even prior to this legal notice by Ex. P/10 the respondent/plaintiff had issued a telegraphic notice through senior Advocate Shri S. R. Joshi for the payment of margin money and excess amount lying in deposit with the Bank and in the telegram it was further directed if the amount is not paid, legal action shall be taken. The submission of the learned counsel for the appellant/defendant Bank is that just after the decision in the Writ Petition No. 950 of 1975 on 3-10-1980 the cause of action rightly arose to the respondent/plaintiff on 19-1-1980 when a telegram Ex. P/10 was issued and thereafter on 13-10-1980 when a legal notice as Ex.P/11 was issued by the respondent/plaintiff to the appellant/defendant Bank but the respondent/plaintiff has not filed any suit within the period of limitation from the cause of action which arose of 3-10-1980. He remained silent up to 1988 and thereafter by Ex. P/15 on 12-12-1988 he issued another legal notice through his counsel and then tried to get the adjustment of the money in the Execution Case No. 77-B/1976 which was pending between Bank of Baroda vs. R. M. Patwa. In this execution case by Ex. P/21 order dated 2-5-1992 was passed by Additional District Judge, Indore ordering for the adjustment of the amount of the sale proceeds in the execution against R. M. Patwa. Against this order by Ex. P/22 the appellant Bank filed revision before the High Court and the High Court by Ex. P/23 passed an interim order on 16-2-1995 in Civil Revision No. 297 of 1992 and by Ex. P/25 on the directions of the Court a copy of the statement of notional account was filed thereafter by Ex. P/26 on 30-3-1995 undertaking given by the Bank was withdrawn. The final order was passed in Civil Revision No. 292 of 1992 on 10-5-1995 against which the appellant/defendant Bank filed a Special Leave Petition before the Supreme Court and by order dated 12-1-1996 the order passed in the case of Civil Revision No. 297 of 1992 was set-aside. Therefore, the submission of Shri P. K. Saxena is that in view of the Ex. P/26 order dated 12-1-1996 passed by the Supreme Court in Special Leave Petition, the order of adjustment was set-aside with the direction that the High Court have committed a manifest and gravest error of law in the process of execution under Order 21, Civil Procedure Code in giving directions about adjustment and in view of the Supreme Court order whatever undertaking was given by the Bank has became non-est. In this regard he relied on a decision of the Supreme Court in the case of C. J. Govindan (supra) if the order is reversed by the superior Court whatever undertaking given will wash away, therefore, the undertaking given in execution case is of no use and it cannot be used against the appellant/defendant Bank for bringing the case within limitation and the respondent/plaintiff cannot take any advantage of the execution proceeding and the same also cannot be used for establishing a fresh cause of action.

18. The further submission of the learned counsel for the appellant/defendant Bank is that to bring a case within limitation under section 18 of the Limitation Act, there should be an acknowledgment and that too should be made during subsistence of period of limitation. Acknowledgment of liability after expiration of the period of limitation for filing suit, does not revive period of limitation. For that he relied on a decision of Supreme Court in the case of Sampuran Singh and others vs. Smt. Niranjan Kaur and others, reported in AIR 1999 SC 1047. He further relied on a decision of Supreme Court in the case of Valliama Champaka Pillai vs. Sivathanu Filial and others, reported in AIR 1979 SC 1937, in which it has been held that one of the essential requirements for a valid "acknowledgment" is that the writing concerned must contain an admission of a subsisting liability. A mere admission of a past liability is not sufficient to constitute such an acknowledgment. He further relied on a decision in the case of M/s Lakshmiratan Cotton Mills Co. Ltd. vs. The Aluminium Corporation of India Ltd., reported in AIR 1971 SC 1482,on the point that acknowledgment must relate to present subsisting liability and indicate existence of jural relationship between parties and intention to admit such relationship. He further relied on a decision in the case of Shapoor Fredovm Mazda vs. Durga Prasad Chamaria and others, reported in AIR 1961 SC 1236 that the essential feature of acknowledgment is that there must be jural relationship of debtor and creditor and the surrounding circumstances may be considered to construe document. He further relied on a decision in the case of Ajab Enterprises vs. Jayant Vegoiles and Chemicals Pvt. Ltd., reported in AIR 1991 Bombay 35, that acknowledgment must be made before expiration of period of limitation. His argument is that in this case there is no acknowledgment by the Bank.

19. Learned counsel for the appellant/defendant Bank very vehemently argued on the question of res judicata. His submission was that a writ judgment will also operate as res judicata in a suit. To support his submissions, he relied on various decisions of the Supreme Court reported in AIR 1961 SC 1457, Daryao and others vs. State of U. P. and others; AIR 1965 SC 1150, Devilal Modi vs. Sales Tax Officer, Ratlam and others, 1968 MPLJ 160 = AIR 1968 SC 1370, Union of India vs. Nanak Singh, AIR 1977 SC 1680, State of Uttar Pradesh vs. Nawab Hussain; AIR 1986 SC 391, Forward Construction Co. and others vs. Prabhat Mandal (Regd.) Andheri and others, JT 2000 (8) SC 359, Rajendra Kumar vs. Kalyan (d) by LRs.; and AIR 1965 SC 1153, Gulabchand Chhotalal Parikh vs. State of Gujarat.

20. On the question of Trust under section 18 of the Limitation Act, he cited the following decision reported in AIR 1931 PC 9, Annamalai Chettiar and others vs. A. M. K.C.T. Muthukaruppan Chettiar and another; 1941 NLJ 184 = AIR 1941 Nagpur 181, Shri Mahadeoji through Pitain Mataqbhik vs. Baldeo Prasad Mahadeo Prasad and others; about section 10 of the Limitation Act, AIR 1939 Madras 712, Chandra Kesavalu Chetty and another vs. S. P. Perumal Chettiar; AIR 1925 Nagpur 115, Bhaiyalal vs. Raj Beharilal and others); and AIR 1946 Madras 519 Officer Receiver of South Arcot vs. V.R.M.K.M.M. Kulandivelan Chettiar and others.

21. On the question of application of section 54 of Contract Act, he cited the decision reported in AIR 1930 Lahore 979, Mathra Das vs. Secy, of State and on the question of equity and limitation, he cited the decision reported in 1997 (7) SCC 556, P. K. Ramachandran vs. State of Kerala and another.

22. He also relied on a decision reported in AIR 1992 SC 1417, Union of India and another vs. Sampat Raj Dugar and another on the question of a right of a party who has not lifted the goods and also relied on a decision reported in AIR 2000 SC 831, Union of India vs. E.I.D. Parry (India) Ltd..

23. In reply, Shri S. C. Bagdiya, learned Senior Advocate instructed by Shri N. K. Dave, submitted at the outset that the question of res judicata cannot be gone into by this first Appellate Court because neither such a plea was taken in the written-statement nor any issue was framed by the trial Court and neither there is any adjudication on the aforesaid question by the trial Court. Therefore, such a question cannot be raised for the first time at the Appellate Court stage. In support of his submission, he relied on the following decisions reported in AIR 1936 P.C. 258; AIR 1948 PC 3; 1964 MPLJS. Note 90 and AIR 2000 SC 831 and, therefore, his submission is that this question cannot be considered.

24. His second submission was that the suit was within time and for that he submitted that by Ex. P/19 on 14-3-1991 refused to pay before Executing Court and by Ex. P/25 he produced the statement of accounts very first time and in February, 1995 the respondent/plaintiff came to know about the exact position of the accounts and he also relied on the undertakings given by the Bank during the course of the execution proceedings in the Execution Case No. 77-B/1976 Bank of Baroda vs. R. M. Patwa.

25. On the question of limitation, he relied on a decision reported in AIR 1979 SC 1144, The Madras Port Trust vs. Hymanshu International that the plea of limitation should not ordinarily be taken by a government or public authority. He further relied on a decision reported in 1990 JLJ 315, State of M. P. vs. Ramrao Krishnarao Palsikar on the ground that plea of limitation should not be taken by State and Public authority to defeat the legitimate claim of citizens such plea can be taken if claim is not well founded. He further relied on the decision reported in AIR 1990 SC 1329, UCO Bank vs. Hem Chandra Sarkar bankers do not, in practice, set up statute of limitations against their customer or their legal representatives. He further relied on a decision reported in AIR 1979 Allahabad 880, Bhag Singh Dang vs. State Bank of India, Dehradun on the point that fixed deposit amount is not an amount payable on demand and the amount remains in trust with bank does not become barred by limitation in view of section 10 of the Limitation Act.

26. He further submitted that as per banking practise, Letters of Credit, involve three transactions :-

(1) A clause is inserted in the contract requiring payment in a particular manner. The buyer asks a bank to open a credit in the seller's favour, which shall remain irrevocable for a given time.

(2) The credit is opened in return for the buyer's promise to reimburse the bank, to pay a small commission and to give the bank a lien over the shipping documents.

(3) The buyer's bank notifies the seller that it has opened an irrevocable credit in his favour, to be drawn on as soon as the seller presents the shipping documents.

27. He further drew the attention of this Court on the question that throughout the conduct of the Bank Officers was that everywhere they admitted the claim of the respondent/plaintiff. In the suit which was filed by the Bank for the recovery of money it was admitted by the appellant/defendant Bank that the plaintiff is entitled for surplus, they also agreed to give credit in the execution case, and they also became ready to give credit in the High Court as well as they became ready to give credit at the time of passing the order by the Bombay High Court in Misc. Petition No. 950 of 1995 it was submitted on behalf of the counsel for the Bank that the due credit out of this amount would be given to respondent No. 7 in respect of its dues to the Bank. Therefore, under such circumstances the trial Court was fully justified in treating the suit as within time and now there is nothing in the case to reverse the aforesaid finding. He further relied that it was plaintiff who had opened the account of Letters of Credit with the appellant/defendant Bank. He deposited the margin money and he was always willing to lift the goods from the customs authorities but the customs authorities were not in a position to release the goods in favour of the respondent/plaintiff and being a resident of Indore it was not possible for him to file a petition before the Bombay High Court. Therefore, the appellant Bank has taken care of his client in litigation which is normally expected in business transactions. The learned counsel for respondent/plaintiff argued at length and supported the findings and the judgment and decree passed by the trial Court.

28. We have heard the learned counsel for the parties at length and perused the record.

29. For deciding the controversy in the present suit and looking to the dispute between the parties, in this appeal the following points/questions arise for determination by this Court :-

(a) Whether the suit is barred by limitation?

(b) Whether the suit is also liable to be dismissed on the principle of res judicata?

(c) Whether the trial Court has decreed the suit rightly in favour of the respondent/plaintiff?

30. The trial Court found the suit within limitation on the grounds viz.,

(a) that the appellant/defendant Bank is a Trustee for the plaintiffs money;

(b) the cause of action arose to the respondent/plaintiff on 1-8-1997 when respondent/plaintiff demanded the amount by notice and; (c) as the appellant bank has failed to produce the documents before the trial Court an adverse interference under section 114 of the Evidence Act has to be drawn and the suit is to be treated within time as by Ex. P/25 the statement of accounts was submitted in the Court lastly on 24-2-1995 and because the appellant bank was a Trustee for the money of the plaintiff under the provisions of section 10 of the Limitation Act for recovery of such amount, no limitation would be applicable. First of all it is necessary to consider the provisions of section 10 of the Limitation Act that in which cases bank is the Trustee for the plaintiffs money. Here it is clear that this is not a case of deposit of money by the plaintiff. The decision in the case of Bhag Singh Dang (supra), is on fixed deposit amount where right to recover the amount of fixed deposit remains in trust with the Bank is not an amount payable on demand. Therefore, it was held that the amount remaining in fixed deposit does not become barred by limitation in view of section 10 of the Act but in this case the theory of Trust is not applicable looking to the nature of the dispute between the parties on the amount of claim.

31. The provisions of section 10 of the Limitation Act can be invoked against a person in whom the. property has become vested for a specific purpose. As per the decisions of the Courts there are three categories in which provision of section 10 can be invoked, namely, to follow the Trust property or its proceeds or for account of the Trustee property or its proceeds and in that case such suit shall not be barred by any length of time. A suit by a beneficiary against a Trust for the enforcement of a beneficiary right may not be barred by limitation. Section 10 applies only against a person in whom the property of Trust vested for any specific purpose. It is doubtful that the relations between a Banker and a customer would stand in the relation of the Trust. But the relation of deposit and depositor are on different footings. The relationship of deposit and depositor may be governed by this section, but a claim for damages, or a claim under a contract for breach of contract either on the basis of Bank Guarantee or Letter of Credit and a dispute about the claim of some money is not one to follow Trust funds. Therefore, a suit to vindicate the personal right is not governed by this section 10 of the Limitation Act. A suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiffs use is not a suit based on the principle of trust property and such a suit cannot be treated within the scope of section 10. Therefore, according to us trial Court has committed an illegality in recording a finding and conclusion that the provisions of section 10 of the Limitation Act are applicable on the facts and circumstances of this case treating the claim of the respondent/plaintiff as a Trust and thereafter holding that the period of limitation is not applicable. Therefore, we do not agree with the findings recorded by the trial Court on the question of limitation and treating the suit of the respondent/plaintiff within limitation. The trial Court has failed to consider the history of dispute between the parties and has not properly examined the dispute and the provisions of Limitation Act, even in a case of Trust Limitation shall start from the date of demand.

32. It is an admitted position on record that the respondent/plaintiff was aware about the litigation between the appellant/defendant Bank and Custom Authorities. The Custom Authorities were disputing the right of the respondent/plaintiff to retire the goods and, therefore, they were denying even the right of the appellant/defendant Bank to lift the consignment from the customs as a co-owner of the property. It is also not in dispute that the property was auctioned under the orders of the Bombay High Court in Misc. Petition No. 950 of 1975. The respondent/plaintiff was also aware about these directions given by the Bombay High Court about auction of the property. It is also admitted that in pursuant to the said interim order public auction of the imported material was carried out twice and the sale proceeds were deposited on 24th August, 1976 and on 17th November, 1976 with the Prothonotary and Senior Master of Bombay High Court in fixed deposit. Therefore, it was very well known to the respondent/plaintiff that a sum of Rs. 4,72,714.16 ps. received from public auctions was deposited in the Bombay High Court and by the final order dated 3-10-1979 it was directed that the petitioners are entitled to that amount and the amount be credited in the account of the petitioners bank. Therefore, it is very much clear that the respondent/plaintiff was fully aware about the amount received through public auctions and he was also aware about the Bombay High Court order dated 3-10-1979 by which the amount was credited in the account of the appellant/defendant Bank and after the decision of the Bombay High Court dated 3-10-1979, the appellant/defendant Bank had withdrawn the Civil Suit No. 78-B/1976 which was pending before the Court of Additional District Judge, Indore for recovery of Rs. 1,27,282.93 ps. plus interest on 3-10-1980.

33. It is also important to note that in Para No. 13 of the plaint the respondent/plaintiff has himself pleaded that he had objected this unilateral withdrawal of the case on 3-10-1980. The suit was dismissed by the trial Court as withdrawn "despite plaintiffs attempt to seek clarification about the appropriation/adjustment made by the defendant Bank." This clearly proves that on 3-10-1980 the respondent/plaintiff had tried to seek clarification about the appropriation/adjustment made by the appellant/defendant Bank but he could not succeed. Even after the telegraphic notice dated 19-1-1980 (Ex.P/10) and legal notice dated 13-10-1980 (Ex. P/11) and thereafter its reminders by Ex.P/12 dated 11-11-1980, the respondent/plaintiff has not filed any suit for recovery of amount. In reply by the Bank, which is Ex.P/13 dated 2nd December, 1980, it was stated that they are awaiting instruction in the matter from Central Office at Bombay. By this Ex. P/13, neither any promise was made nor any commitment to pay the amount and the same does not constitute as "acknowledgement" in favour of respondent/plaintiff. He has also not filed any other documents that after 2-12-1980 why he remained silent up to 1988. By Ex. P/15 dated 12-12-1988 he again gave another legal notice and thereafter in 1990 made a futile attempt for the adjustment of the amount in a third party's execution.

34. We are fully satisfied that whatever the undertakings given by the Bank in third party Execution Case No. 77-B/1976 or whatever the directions given by this Court in Civil Revision No. 297 of 1992 came to an end after the orders passed by the Supreme Court in Special Leave Petition No. 2476 of 1996 on 12-1-1996. The extract of the order passed by the Supreme Court in Special Leave Petition No. 2476 of 1996 on 12-1-1996 is as under :-

Having considered the respective contentions, the only question for consideration is whether the High Court or the executing Court could go into these controversies and direct adjustment against the will of the decree holder. It is settled law that the decree-holder is entitled to proceed in execution against the judgment debtor in the manner prescribed under Order 21 of the Civil Procedure Code. In execution proceedings the judgment-debtor filed an application under section 151 to adjust the amounts lying in the account of Kakkani towards the debt payable by the judgment-debtor. It is now clear from the facts that there is an acute dispute and difference between the entitlements or liabilities between Kakkani, a stranger to the decree, and the Bank. Those liabilities and adjustments cannot be adjudicated in the execution proceedings between the appellant and the judgment debtor. A clever device was adopted to overreach the appellant against the will of the decree holder. The third party rights cannot be projected for determination in an execution and directions given on that basis as ordered by the High Court, are unthinkable let alone legal. Therefore, the High Court has not only far exceeded its revisional power under 115, Civil Procedure Code but also converted these proceedings into claims and counter claims in execution, to which the second respondent is not a party and which even first respondent is not entitled to seek for. The learned single Judge has given directions de hors the execution. The High Court went ahead to direct the appellant to forego interest under a decree which came to exist first. The High Court has acted against all notions of law in execution. Accordingly, we are of the view that the execution Court as well as the High Court in giving directions have committed manifest and gravest error of law in the process of execution levied under Order 21, Civil Procedure Code and given directions. The orders are, therefore, set aside. The appellant is at liberty to proceed with the execution in accordance with law. If there are any disputes between the second respondent and the Bank, it would be open to the parties to have their rights agitated, if available in accordance with law. The learned Judge is directed to complete the execution as expeditiously as possible since it is a long pending case."

35. In the case of C. J. Govindan (supra), it has been held that if the order is reversed by the superior Court, undertaking given in that case will wash away. Therefore, we hold in this case that in view of the aforesaid Supreme Court decision in Special Leave Petition No. 2476 of 1996 and also in view of the decision rendered in the case of C. J. Govindan (supra), whatever undertaking given in the execution case is non-est and the respondent-plaintiff cannot take any advantage of the same.

36. It is also surprising that how the trial Court could grant a imaginary decree for Rs. 23,00,000.00 when the suit of the respondent/plaintiff is based on Ex. P/25 according to which surplus balance is only Rs. 85,000.00 after adjusting the payments, expenses and interests etc. Therefore, for any reason the respondent/plaintiff was not entitled for a decree for such a huge amount. The trial Court made wrong and imaginary calculations ignoring the actual balance amount and tried to build castle in the air. Shri Saxena has rightly pointed out that the investment of the plaintiff was only Rs. 4,560-00 for L.C. No. 7123 and Rs. 4,810-00 for L.C. No. 7139 as a margin money for Letter of Credit and it was also rightly pointed out that there was no balance amount of Rs. 3,17,989.84 ps. on which the trial Court has granted an interest with effect from 3-11-1979. However, at this stage we are not discussing this aspect of the matter, as before us the first question for consideration is whether the suit is within limitation or barred by limitation. If it is barred by time, other question are not required to be discussed and considered.

37. A suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiffs use under Article 24 of the Limitation Act can only be filed within three years from the date when the money is received. Apparently on the controversy between the parties in this suit the provisions of Articles 22 and 24 are applicable and the plaintiff ought to have filed a suit within three years from the date when the money was received or when the demand was made by the appellant/defendant Bank after the public auctions on 24th August, 1976 and on 17th November, 1976. Because on those dates a writ petition bearing registration number Misc. Petition No. 950 of 1975 was pending and the matter was under consideration before the Bombay High Court in which final order was passed on 3-10-1979, therefore, it can be said that on 3-10-1979, the cause of action arose to the plaintiff for claiming this amount for the first time when the money is received and he should have filed a suit from that date within three years. For that by Ex. P/10 dated 19-1-1980 and by Ex. P/11 dated 13-10-1980 he had rightly given demand notice telegraphically as well as in writing for claiming the aforesaid amount. But as it appears from the history of the dispute between the parties the respondent/plaintiff had not sought any order for adjustment or appropriation from the Bombay High Court when money was received from auction or at the time of final disposal of writ petition. After the demand notice Exs. P/10 and P/11 he has not filed suit within 3 years, which was the right occasion for him, for that he has also not given any explanation. At that time he might have thought that he may not succeed, therefore, he remained silent obviously for a long time and thereafter in 1988 he only tried for the adjustment of this amount in third parties Execution Case No. 77-B/76. Therefore, any undertaking given by the Bank either in that execution case or Civil Revision No. 297 of 1992 before the High Court, neither can be treated as an "acknowledgement" or a valid undertaking and it cannot be urged that the respondent/plaintiff can get extension of limitation on the basis of the aforesaid illegal attempt in execution proceedings. The order passed by the Supreme Court in Special Leave Petition No. 2476 of 1996 on 12-1-1996 is very clear to shut the doors of the respondent/plaintiff for claiming any amount or claiming any benefit of fresh cause of action or for the extension of limitation on the basis of the aforesaid execution proceedings or proceedings of the civil revision. Therefore, we hold that the orders passed in Execution Case No. 77-B/1976 and also in Civil Revision No. 297 of 1992 cannot provide any benefit to the respondent/plaintiff either for a fresh cause of action for claiming the amount or for extension of limitation.

38. This argument of Shri Bagdiya, learned Senior Advocate appearing for the respondent/plaintiff cannot be accepted that the cause of action arose to the plaintiff for filing the suit on 24-2-1995 when the appellant/defendant Bank submitted the statement of accounts of sale proceeds of the goods and illegal deductions made by them from the said amount. In fact in the year of 1976 the respondent/plaintiff during the pendency of Misc. Petition No. 950 of 1975 before the Bombay High Court was aware about the amount received from the auctions and from the suit of the appellant Bank No. 78-B/1976, he was also aware about the claim of the Bank. Therefore, it cannot be said that the plaintiff was not aware about the details of the amount of his claim from the appellant Bank. PW-1 K. G. Kakani has himself admitted in his examination-in-chief that after the orders of the High Court the surplus amount should have been paid to him. He further admits in para No. 15 that he was aware that the appellant Bank has deposited a sum of Rs. 4,35,912.77 ps. in the Industrial Area Branch of the appellant's Bank at Indore on 24-11-1981. He further admits that telegraphic notice Ex. P/10 and a legal notice Ex. P/11 was given by him to the appellant Bank. In his cross examination he has admitted that he is not a manufacturer of Ayurvedic Medicines, he is aware about the Court proceedings. He further admits in Para No. 27 when the goods came on the Bombay Port he has not made any payment to the appellant Bank. This clearly shows that he is claiming this amount because of some surplus amount otherwise in a suit of the Bank he would have denied the claim of the Bank. He further admits in his cross-examination that he had neither filed any reply in Misc. Petition No. 950 of 1975 nor had supported the claim of the appellant Bank. He further admits that he had not spent any amount on the litigation in Misc. Petition No. 950 of 1975. He further admits in Para No. 43 that right from 1980 to 1986 he has not made any attempt to get that claims through the Court. It is also very important to note that on 14-3-1991 by Ex. D/1 respondent/plaintiff had filed a writ petition before the Bombay High Court for claiming the same relief which he has claimed in the present suit and the aforesaid writ petition was dismissed by order dated 25-10-1991 on the ground of delay and thereafter by Ex. D/3 dated 10-2-1992 the Supreme Court has also dismissed the Special Leave Petition with the following order :-

"The Special Leave Petition is dismissed. The remedy by way of writ petition was certainly not a proper remedy. Learned counsel for the petitioner states that he wants to file a suit. We are not concerned with any such thing."

It means that on 10-2-1992 itself he was aware that a suit is required to be filed but even after this submission before the Supreme Court, the plaintiff has not filed the suit within a period of three years. Admittedly the plaintiff has filed this suit on 8-9-1997 i.e. after a period of more than 5 years. Worst to go worst even if it is admitted for a moment for the sake of argument that the respondent/plaintiff had any right to file a suit and for that lastly cause of action arose to him on 10-2-1992, even then the suit is not within time from the date of the Supreme Court order in Special Leave Petition No. 1408 of 1992.

39. The trial Court has not examined the aforesaid evidence and documents and the orders of the Apex Court on record on the question of limitation involved in this case otherwise the trial Court would not have arrived at such a finding treating the suit within limitation.

40. During the course of arguments, learned Senior Advocate Shri S. C. Bagdiya appearing for the respondent/plaintiff further submitted that many a time the appellant Bank admitted for the payment of amount to the respondent/plaintiff and for that he submitted that by Ex. P/16 on 31-3-1986, in reply to application in Execution Case No. 77-B/1976, admitted that the decree-holder Bank has no objection if the judgment-debtor produces the consent from M/s Oriental Traders to the effect that the amount lying surplus with the Bank to be credited to the dues of the judgment-debtor towards decretal amount in this execution petition. He further relied on Ex. P/18 an application for "no objection" by the respondent/plaintiff, then on Ex. P/21 order of the executing Court for adjustment and Ex. P/23 order passed in Civil Revision No. 297 of 1992 on 16-2-1995 and thereafter final order passed in Civil Revision No. 297 of 1992 dated 10-5-1995, which is Ex. P/27. Therefore, the trial Court was justified in decreeing the suit of the plaintiff. In fact there is no admission of record. The entire execution proceedings have come to an end after the judgment of the Supreme Court. All the aforesaid documents does not come within the purview of "acknowledgement of debt". A mere admission of a past liability is also not sufficient to constitute acknowledgement. See AIR 1971 SC 1482, M/s Lakshmiratan Cotton Mills Co. Ltd. vs. The Aluminium Corporation of India Ltd. and it must relate to subsisting liability. It is also clear from Sampuran Singh's case (supra) that acknowledgement should be made during substantive period of limitation. Acknowledgement of liability after expiry of prescribed period of limitation for filing of suit does not revive period of limitation. By Ex. P/19 application dated 14-3-1991 the appellant Bank had withdrawn the aforesaid undertaking by the following reply :-

"The decree-holder does not agree to the proposal of the applicant because :-

(a) the transaction is under Letter of Credit facility where the moneys of judgment-debtor or applicant were never at stake and hence they are not entitled for any amount from the sale-proceeds."

And thereafter whatever the undertaking was submitted before the revisional Court was under the directions of the High Court in Civil Revision No. 297 of 1992 dated 16-2-1995 and it was clarified by the appellant Bank vide their application dated 24-2-1995. Ultimately the entire matter relating to the filing of application or undertakings before the Executing Court or Civil Revision in the High Court rightly came to an end by the order of the Supreme Court dated 12-1-1996. Therefore, this argument of the learned senior counsel for the respondent/plaintiff cannot prevail that the Bank had admitted to refund the amount to the plaintiff or the aforesaid admissions come within the purview of the acknowledgement of debt. When the cause of action had already arose to the respondent/plaintiff on 3-10-1980 on the date of the order of the Bombay High Court and suit had already become time barred then it was the burden on the plaintiff to prove that the aforesaid undertakings which were given by the Bank in execution case are legal and valid and they are enforceable even after the order passed by the Supreme Court on 12-1-1996. But on that point nothing has been argued. He has not submitted as to how the suit after 1996 is valid, legal and within limitation.

41. The question that the Bank should not take the legal objection like limitation dealing with a customer or depositor. We do agree with the principle enumerated in the cases cited above by the respondent/plaintiff but under the facts and circumstances of the case this is not the case in which the plaintiff for his own latches can take any advantage of this argument that Bank should not take the legal and technical objections. In fact we are of the view that during the pendency of Misc. Petition No. 950 of 1975 before the Bombay High Court either the plaintiff should have lodged his claim or should have filed a separate writ petition claiming his right over the surplus amount became due. At the time of the pendency of Misc. Petition No. 950 of 1975 before the Bombay High Court obviously the plaintiff was under a fear that on claiming this amount, the High Court may not proceed to enquire about his status in obtaining Letter of Credit and for placing the orders for importing the goods on a Letter of Authority. Therefore, we can infer that in the beginning the plaintiff tried to get himself away from the litigation before the Bombay High Court and also from the transactions because of the fear of the liability. He became active only after seeing heavy amount received from public auctions of the goods, and thereafter he remained silent and slept care free and has not tried to file the suit in time and only attempted to gain without pain in execution proceedings.

42. Shri Saxena, learned Senior Advocate for appellant Bank submitted that in view of the provisions of section 54 of the Contract Act on breach of reciprocal promise respondent/plaintiff was not entitled to claim any amount from appellant Bank as he has waived his rights when plaintiff was not in a position to retire the goods from the custom authorities but no such objections were taken in the written statement for proper adjudication.

43. Under Articles 22 and 24 of the Limitation Act where one person receives some money or makes the demand to which he is entitled in law the person legally entitled to the money may maintain an action for the recovery of the same from the former and such an action will be governed by these articles. Obviously on the facts of this case the suit of the plaintiff would be governed by these articles and for that limitation would start from the date of money received or demand is made. As has already been pointed out above the money was received by the appellant Bank in the year 1976 after the sale proceeds but it remained with the High Court upto 3-10-1979 and by order the same was deposited in the account of the petitioner and this fact was very well known to the respondent/plaintiff as he was a party in Misc. Petition No. 950 of 1975 for that he had also made demands through legal notices, Ex. P/10 on 19-1-1980 and Ex. P/11 on 13-10-1980.

44. In the case of A. Mahadeva Ayyar vs. The South Indian Railway Co., reported in AIR 1922 Madras 362, it has been held that where the railway management has sold the goods in exercise of powers conferred by section 56 of the Railways Act, a suit by the consigner to recover the sale proceeds from the Railway Company is governed by Article 62 of the Act, 1908, now under Article 24 of the Limitation Act.

45. In the case of A. Venkata Subbarao vs. State of Andhra Pradesh, reported in AIR 1965 SC 1773 it has been held that in a suit for money received by the defendant for the plaintiffs use, this article would apply. In the case of Ranendra Narayan Sinha and others vs. State of West Bengal, reported in AIR 1971 SC 1245, it has been further held that where money is paid by the plaintiff to the defendant under an agreement which is void, the money would be money received by the defendant for the use of the plaintiff within the meaning of this article and the suit for the recovery of such money will be governed by this Article. A suit for recovery of money paid under mistake will also be governed by this article. In a suit for refund of tax paid under protest will also be governed by this Article. A suit for recovery of excess amount of loan recovered by the Bank from the defendant attracts Article 24.

46. Under Article 22 of the Limitation Act money deposited under an agreement shall be payable on demand, including money of a customer in the hands of his banker so payable, the limitation is 3 years from the date of demand made. It has been held in the case of Ram Janki Devi and another vs. M/s Juggilal Kamlapat. reported in AIR 1971 SC 2551, that it will depend on the facts of each case whether the transaction clothed with the character of a deposit of money. The surrounding circumstances, the relationship and character of the transaction and the manner in which parties treated the transaction will throw light on the form of the transaction. Certainly this article has no application where the money is payable at the expiry of fixed period cases and the cause of action will arose on the expiry of the period so fixed like the cases of deposit for fixed term with bank. On expiry of term fixed, it becomes a deposit payable on demand. But in this case there is no such case of deposit of money. Here in this case the question of "claim" is Involved and for that certainly the limitation will start from the demand is made for the amount due and in view of the decision reported in AIR 1964 SC 1256, the time will run under this article from the date of demand for the amount due. Article 22 would be applicable where there was a liability of the bank to pay the amount arising out of payments became due and the money became payable on demand and in that case limitation commences from the date of demand.

47. No doubt as per the plaintiffs case he is claiming surplus amount of the sale proceeds after adjustment of the payment to foreign supplier and expenditures incurred by the appellant plaintiff in litigation. Therefore, on the facts of this case the provisions of Articles 22 and 24 are applicable and the suit would lie within three years when the money is received by the defendant Bank or from the date when demand is made from the Bank.

48. Accordingly we hold that the suit would be governed by Articles 22 and 24 of the Limitation Act and since the respondent/plaintiff has failed to file the suit within limitation, the suit is hopelessly barred by limitation. We do not agree with the logic and the findings recorded by the trial Court on the principle of trust under section 10 of the Limitation Act, as the same is not applicable on the facts and circumstances of the case, even in a case of Trust limitation would start from date of demand. The doctrine of limitation and prescription is based on this broad consideration vigilantibus et non dormientibus jura subveninut. Laws come to the assistance of the vigilant and not of the sleepy or negligent. Law of Limitation is lexfori and the principle of equity cannot be invoked to enlarge the period of limitation. Admittedly limitation is concerned with the judicial remedy of a person, whose rights have been infringed. Principles underlying the Limitation Act are based on public policy aiming a justice, and a party may lost its action on its own inaction, negligence or latches. Therefore, the finding recorded on this issue by the trial Court is wholly misconceived, contrary to evidence on record and also against the provisions of law of limitation which deserves to and is accordingly set-aside and the suit is treated as hopelessly barred by limitation.

49. The other question regarding res judicata, since we are holding that the suit of the plaintiff is not within time, it would be only academic to decide the question of res judicata. Therefore, in view of the finding on the question of limitation, it is not necessary to decide the question of applicability of the principle of res judicata in the suit.

50. In view of the foregoing discussions and under the facts and circumstances of this case, this appeal is allowed and the judgment and decree passed by the trial Court is hereby set-aside and the suit holding the same as barred by limitation is dismissed. Under the special facts and circumstances of this case, we do not award any cost of this appeal as well as of suit to the appellant. A decree be drawn up accordingly. Record be sent back.

Appeal allowed.