Suraj Prasad vs Bindhyachal Prasad and Another

Ross, J.—This is an appeal by the defendant against a decree in a suit brought by the plaintiffs to recover money deposited with the defendant. It appSars that the father of the plaintiff was a clerk and the defendant was the cashier in the estate of Mr. Milne. With the leave of Mr. Milne''s manager, tha father of the plaintiff used to deposit from time to time money with the cashier and it has been found that the note-book produced in this case contains the account of these deposits. The suit has been decreed for the amount shown as outstanding in the last item of this notebook but that is not signed by the defendant and is in no sense an acknowledg-rnent, although it has been found that it is in his handwriting.

The principal question discussed in appeal was the question of limitation. The learped District Judge held that the case was governed by Article 145. It is conceded by the learned advocate for the respondents that this article has no application. The learned Counsel for the appellant urges that the ease is governed either by Article 62 or Article 64. It is clearly not governed by Article 62 as the money was not money received by the defendant to the plaintiffs'' use. Nor is it governed by Article 64 as there is no account stated. The case falls under Article 60:

For money deposited under an agreement that it shall be payable on demand.

and that the case is such as clear from the plaint itself where it is said that the plaintiffs'' father used to keep and deposit every now and then with the defendant and used to withdraw, when necessary, money through himself or through others or get money paid to others ; and it also shows demand on a certain date. That being so, there is no difficulty in the way of limitation.

But the question remains to be considered how much is due by the defendant to the plaintiffs. On this point the judgments of the Courts below are unsatisfactory. They seem to have treated this final entry in the account as an acknowledgment by the defendant; but this is in no sense true, a, the entry is not signed.

There is nothing to show that the account itself has been examined and it is only by an examination of the account that the actual dues can be ascertained. It may be that the closing item shows the actual amount outstanding; but it is impossible to be certain of this unless the account is examined.

The appeal must, therefore, be allowed and the judgment of the Court below set aside and the appeal remanded in order that the account contained in the notebook may be examined and a decree passed on the sum then ascertained to be due. Costs will abide the result.

Das, J.

I agree.