Jogendra Nath Chuckerbutty v. Dinkoo Ram Krishna Chittel

The Judgment of the Court was as follows:—

Shamsul Huda, J.:— This appeal arises out of, a suit, brought by the Plaintiff against the Defendants Nos. 1 and 2 to recover a sum of Rs. 19,918-7-0 according to the account given in the Schedule annexed, to the plaint. The Defendants are brothers living in joint mess, 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 called ales war 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 were at liberty to employ the same in their money-lending business upon their-own responsibility; the money so employed was to carry interest at Re. 1-4-0 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 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 plaint. 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 defence is a dishonest one. The account, Ex. 4(a), and other accounts show that interest and compound interests were calculated at the rate claimed in the plaint. That compound interest was agreed upon, also appears from the letter, Ex. 4, 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 ion money that remained in deposit, with 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 no interest was-calculated on money that remained in deposit. These letters and accounts exhibited in the case, if genuine, prove the Plaintiff's, case to the hilt. The only question of fact 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 transaction took place being, a resident of the feudatory state of Maurbhunj. The Defendants are men of some influence, in the locality. The Plaintiff fully, satisfied the learned Subordinate 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 Ex. 2 bears his genuine signature. It is proved, though denied by the Defendants themselves, that the accounts and the body of the letters were 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 Ex. 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 but 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 defence 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 concocted a false case and forged a series of letters and accounts to support it.

The Defendants say that they are at enmity with a man named Anukul 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, Ex. 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 could succeed. That letter alone is sufficient to show that Jogendra's allegation that he had no dealings with the Plaintiff at all, is false. In our opinion, the letters are genuine and so also the accounts that have been filed by the Plaintiff.

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 believe 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 brothers 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 further as there is no 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.

It has next been argued that the Plaintiff is not entitled to any interest after the year 1910. It 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 so 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 came back into the hands of the Defendants, that was a matter which was specially within their knowledge and the onus to prove that fact was on the Defendants wilder sec. 106 of the Evidence Act and they have failed to discharge that onus.

It was next urged that the Plaintiff's a suit was barred by limitation under Art. 60 of the Limitation Act. The learned Vakil for the Appellant has contended that 3 several demands were made by the Plaintiff and that if time is calculated 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 Defendanfs 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 Art. 60 of the Limitation Act except one made on the 20th January 1916 when his Solicitor wrote a letter to the Defendants demanding from them a sum of Rs. 18,880 which was said to be due up to the end of December 1915. Calculated from the date of this letter the suit is in time. Plaintiff no doubt speaks of other demands but it appears that those were not demands properly so called but only requests for money on account. It nowhere 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 Art. 60 applies, the claim is not barred by limitation. It has however, been argued that Art. 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 Art. 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 relation between the Plaintiff and the Defendants was not that of a lender 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 safe custody and by way of deposit: they were at liberty, if they thought it safe 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 Art. 60 only applies to cases where money is deposited with bankers and reliance is placed on the decision of this Court in the case of Iswar Chunder Bhaduri v. Jiban Kumari Bibi . That was a case of money deposited with a firm of bankers and Art. 60 was held to apply. That case is not an authority for the proposition that article is limited in its application to claims against bankers only. This view is supported by the decision of the Madras High Court in the case of Subrahmanian Chettiar v. Kadiresan Chettiar , where it was held that under Art. 60 of the Limitation Act, money left in the hands 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 Art. 59 but Art. 60 that applies to the present case and the Plaintiff's suit is not barred by limitation.

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 per cent, per month and that cannot be said to be a high rate of interest. It is not a case where the Defendants were under any necessity to take 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.

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

Richardson, J.:— I agree.

J.N.R

Appeal dismissed.