TMI Blog1971 (1) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge, Kanpur. Thereafter by an order dated 12 May, 1964 of the High Court at Allahabad the suit was transferred to the High Court in its original, civil jurisdiction. The High Court heard the suit and on 3 August, 1965 decreed the suit in favour of the respondent. At the trial the issues were first whether the respondent deposited the sum of ₹ 4,00,000 with the appellant and secondly whether the suit was barred by time. The entire controversy in the suit is whether it was a case where money was deposited under an agreement and that it was payable on demand or whether it was a case of an ordinary loan of ₹ 4,00.000. The respondent contended that Article 60 of the Indian Limitation Act, 1908 was the relevant Article because if was a case of money deposited under an agreement that it was payable on demand and therefore the limitation would commence from the date of demand and the suit was filed within three years from the demand. The rival contention of the appellant was that it was money lent under an agreement that it was payable on demand and the loan was made on 30 December, 1942 and therefore the suit not having been filed within 3 years from the date of the loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er) and nakalbahi (journal). The respondent also relied on the pass book entry being Ex-A-4 which shows that a sum of ₹ 4,00,000 was withdrawn on 30 September, 1942 by the appellant from the respondent as a banker and along with the interest from time to time the amount of ₹ 4,00,000 stood with the appellant in the deposit account. The balance-sheet of the appellant as on 30 June, 1943 being Ex.A-4 showed that a sum of ₹ 4,00,000 was unsecured loan from the respondent. Counsel on behalf of the appellant contended that the use of the word 'deposit by itself occurring either in the roznamcha or in the letter dated 29 September, 1942 written by Ram Ratan Gupta would not be decisive of the question whether it was a case of deposit of the sum of ₹ 4,00,000 by the respondent with the appellant under an agreement that the same would be paid on demand. At one stage in the proceedings there was a controversy as 'to whether Rain Ratan Gupta had authority to bind the appellant by the letter dated 29 September, 1942. There is evidence that Ram Ratan Gupta looked after the business of the appellant and acted on behalf of the firm of the appellant in ordinary m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... character of the transaction and the manner in which parties treated the transaction will throw light on the true form of the transaction. The Judicial Committee in Nawab Major Sir Mohammad Akbar Khan v. Attar Singh Ors. 63 I.A. 279. spoke of the distinction bet- ween the deposit and loan to be that the two terms were not mutually exclusive but that a deposit not for a fixed term did not seem to impose an immediate obligation on the deposite to seek out the depositor and repay him. Though, documents by themselves are not conclusive of the question they have the evidentiary value and if they corroborate the oral evidence the importance of the documents is magnified. The letter Ex. A-5 bears the date 29 September, 1942 and is contemporaneous with the entire transaction between the appellant and the respondent. The letter was as follows:- Messrs. Juggilal Kamlapat Kothl, Cawnpore. Dear Sirs, As per my talk with Sir Padampat I shall thank you to credit a sum of S. 4 lacs(Rupees four lacs only to the account of Messrs Lakshmi ratan Cotton Mills Co. Ltd., and debit the same to the account of India Supplies as deposit at the usual rate of interest as agreed upon by the partners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in a dying condition at the time the witness gave evidence. It was suggested to Padampat Singhania that the words de- posit karaya in the roznamcha entry were not written at the same sitting. Padampat Singhania denied that, Counsel for the appellant contended that in the absence of Gopi Kishan Jaipuria the account books were not proved. This is unacceptable for two reasons. First, the account books were shown in cross-examination of Padampat Singhania and question were asked on the same. It is not open to the appellant to complain of lack of proof of account books when the documents are shown to the witness in cross-examination. Secondly, both Padampat Singhania and Gopi Kishan Saraugi spoke of the proper maintenance and keeping of books of account and that it was not possible to arrange the presence of the writer of the entry. Suggestion of tampering is a serious one. The original entries were called for from the High Court. We had occasion to look into the originals. We are in agreement with the High Court that the suggestion of fabrication is utterly unmeritious. The words 'deposit karaya' appear without any doubt to have been written at the same time as the rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 4,00,000 for a long time. The absence of any negotiable instrument is significant. A hundi or a promissory note would have been consistent with the case of a loan. The relationship between the parties; the surrounding circumstances at the time of the transaction, the pecuniary position of the appellant are all overwhelming features to corroborats the oral as well as the documentary evidence of the respondent that the amount was deposited with the appellant. The award dated 18 January, 1944 has also a tale to tell. There were disputes between the partners of the various businesses in which the Singhania and Gupta groups were interested. These disputes were before the arbitrators. One of the terms in the award was that the award in respect of Lakshmi Ratan Cotton Mills and India Supplies do not cover the advances which either party or their separate firms may have made to all or any of them or their moneys which may be in deposit with them and they shall be payable and paid in their usual course . This direction, in the award shows that there were advances which were in the nature of deposit and were not covered by the award. The award would have evidentiary value to show ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
