Case: Ram Janki Devi &amp; Anr Vs. M/S. Juggilal Kamlapat

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 unmeritorius. The words deposit karaya appear without any doubt to have been written at the same time as the rest of the writing. It is in evidence that the reference to the page of the Panna under that entry was written later inasmuch as the page of the Panna was put on when the Panna book was written.16. The most important documentary evidence of the appellant namely, their book of account was not produced. These books of the appellant would have shown how they treated the transaction, namely, whether it was a case of deposit or loan. The irresistible inference from the non-production of the books of the appellant would arise that they would have supported the respondents case and that is why they were not produced. The appellants contention that the background of the transaction was mercantile loan, would be a mere conjuncture than a conclusion to be arrived at. The financial transactions between the respondent and Lakshmi Ratan Cotton Mills were running accounts. It would be more consistent to hold that by allowing India Supplies a deposit of Rs. 4, 00, 000 India Supplies would be relieved of the situation of repaying the money immediately. It is precisely because of the then inability of India Supplies to repay Lakshmi Ratan Cotton Mills that the parties resorted to the mode of having the use of the money by way of deposit. The transaction was between the appellant, the respondent and Lakshmi Ratan Cotton Mills. All figured in the transaction. A mere loan of Rs. 4, 00, 000 would not have sufficed the needs of the appellant who were then unable to pay the dues of Lakshmi Ratan Cotton Mills.17. Some of the partners of the appellant and the respondent in the year 1942 were common. It would be more explicable and natural course of events that monies would be kept in deposit with the appellant in order to enable them to have financial accommodation without immediate worry of repayment. The mere fact that money in specie was not paid would not be destructive of the case of deposit. The respondent acted as bankers. The way in which the respondent made entries in the pass book of the appellant is consistent with their Roznamcha, Khata and Nakalbahi books. It was not a case of the respondent giving loan to the appellant for the obvious reason that the history of the transactions between the appellant and Lakshmi Ratan Cotton Mills shows that the appellant had to be put on a footing of financial stability by giving the appellant the use of the sum of Rs. 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 corroborate the oral as well as the documentary evidence of the respondent that the amount was deposited with the appellant.18. The award, dated January 18, 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 as to how the parties treated and understood their financial dealings.19. It is also significant that when the respondent demanded the money by a letter, dated April 27, 1953 (Ex. 7) the appellant in their reply, dated May 5/6, 1953 (Ex. 6) totally denied the claim. The respondent set out all the facts of deposit of the money with the appellant. The appellant never said that it was a case of advancing loan. The non-production of the appellants accounts coupled with the appellants staying away from the witness box indicates the inherent infirmities in the appellants case.20. Counsel for the appellant contended that there was a demand for a part of the amount in the year 1943 because Padampat Singhania said that there was demand in the month of October, 1943 and therefore limitation would start from that date. The view of Calcutta, Bombay and Madras High Courts is that there must be an unqualified demand for the whole sum before the limitation can start. In case of demand for return of the amount deposited. (See Jagendrannath Chakerbutty v. Dinkar Ram, (AIR 1921 Cal 644 .) Motigouri v. Naranji (AIR 1927 Bom 362 .) and Subbaih Chetty and Others v. Visalkshi Achi (AIR 1932 Mad 685 .). That is the correct position in law. Counsel for the appellant did not contend to the contrary in view of the consensus of opinion of the different High Courts. It is also important to bear in mind that a demand in the year 1943 for a part of the amount would not be effective because there were common partners in the firms of the respondent and the appellant.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. It was suggested to Padampat Singhania that the words "deposit 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 questions 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 unmeritorius. The words deposit karaya appear without any doubt to have been written at the same time as the rest of the writing. It is in evidence that the reference to the page of the Panna under that entry was written later inasmuch as the page of the Panna was put on when the Panna book was written.16. The most important documentary evidence of the appellant namely, their book of account was not produced. These books of the appellant would have shown how they treated the transaction, namely, whether it was a case of deposit or loan. The irresistible inference from the non-production of the books of the appellant would arise that they would have supported the respondents case and that is why they were not produced. The appellants contention that the background of the transaction was mercantile loan, would be a mere conjuncture than a conclusion to be arrived at. The financial transactions between the respondent and Lakshmi Ratan Cotton Mills were running accounts. It would be more consistent to hold that by allowing India Supplies a deposit of Rs. 4, 00, 000 India Supplies would be relieved of the situation of repaying the money immediately. It is precisely because of the then inability of India Supplies to repay Lakshmi Ratan Cotton Mills that the parties resorted to the mode of having the use of the money by way of deposit. The transaction was between the appellant, the respondent and Lakshmi Ratan Cotton Mills. All figured in the transaction. A mere loan of Rs. 4, 00, 000 would not have sufficed the needs of the appellant who were then unable to pay the dues of Lakshmi Ratan Cotton Mills.17. Some of the partners of the appellant and the respondent in the year 1942 were common. It would be more explicable and natural course of events that monies would be kept in deposit with the appellant in order to enable them to have financial accommodation without immediate worry of repayment. The mere fact that money in specie was not paid would not be destructive of the case of deposit. The respondent acted as bankers. The way in which the respondent made entries in the pass book of the appellant is consistent with their Roznamcha, Khata and Nakalbahi books. It was not a case of the respondent giving loan to the appellant for the obvious reason that the history of the transactions between the appellant and Lakshmi Ratan Cotton Mills shows that the appellant had to be put on a footing of financial stability by giving the appellant the use of the sum of Rs. 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 corroborate the oral as well as the documentary evidence of the respondent that the amount was deposited with the appellant.18. The award, dated January 18, 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 as to how the parties treated and understood their financial dealings.19. It is also significant that when the respondent demanded the money by a letter, dated April 27, 1953 (Ex. 7) the appellant in their reply, dated May 5/6, 1953 (Ex. 6) totally denied the claim. The respondent set out all the facts of deposit of the money with the appellant. The appellant never said that it was a case of advancing loan. The non-production of the appellants accounts coupled with the appellants staying away from the witness box indicates the inherent infirmities in the appellantsview of Calcutta, Bombay and Madras High Courts is that there must be an unqualified demand for the whole sum before the limitation can start. In case of demand for return of the amount deposited. (See Jagendrannath Chakerbutty v. Dinkar Ram, (AIR 1921 Cal 644  .) Motigouri v. Naranji (AIR 1927 Bom 362  .) and Subbaih Chetty and Others v. Visalkshi Achi (AIR 1932 Mad 685  .). That is the correct position in law. Counsel for the appellant did not contend to the contrary in view of the consensus of opinion of the different High Courts. It is also important to bear in mind that a demand in the year 1943 for a part of the amount would not be effective because there were common partners in the firms of the respondent and theintrinsic evidence in the letter is that the sum of Rs. 4, 00, 000 was debited to India Supplies as deposit. The words "debited as deposit" were criticised by counsel for the appellant to be meaningless. Too much precision cannot always be expected in regard to use of foreign language by merchants and traders in their short memorandum. The character of deposit is an inherent impression in the writing. The Roznamcha refers to the letter and is therefore corroborative of the letter and the terms thereof. The letter further shows that the terms were agreed to by the partners of the firm, namely, the partners of India Supplies and of the respondent. The respondents partner Padampat Singhania gave oral evidence and substantiated the terms of the letter and the respondents case. Padampat Singhania was the person on behalf of the respondent who carried on the negotiations. His evidence was therefore important. The appellants did not examine themselves and did not give any evidence challenging the oral testimony of the respondents partner. On the contrary, the correctness of the letter Ex.was accepted by the appellants witness Ram Ratan Gupta the author of the letter.The Roznamcha entry was proved by Gopi Kishan Saraugi a Munim of the plaintiff. The Roznamcha entry was as follows00, 000 India Supply Ke Nam Asoj Badi Chhatt :Lakshmi Ratan Cotton Mill Ki Chithi se apke nam bada deposit karyapannaevidence was that the books were systematically kept on mahajani system in connection with the business. The witness proved the Khata, the Roznamcha and the nakalbahi entries. Inof Gopi Kishan Saraugi it was suggested that the entry under the date September 30, 1942, in the roznamcha was not written at the same time. The suggestion was that there was interpolation of the words "deposit karaya" in the Roznamcha entry. Inof Padampat Singhania questions were asked about the Rokar, Khata, Nakalbahi and Roznamcha entries. Padampat Singhania said that the entry of Rs. 4, 00, 000 was not recorded in the daily cash book but was recorded in the roznamcha. He also said that credit and debit entries were made in the roznamcha. Padampt Singhania said that the entries were made by Gopi Kishan Jaipuria whowas in a dying condition at the time the witness gave evidence.