The appeal is preferred against the judgment and decree, dated 06.08.1999, passed in O.S.No.43/98, on the file of te Sub-Court, Devakottai. The Suit in O.S.No.43/98 was filed by the respondent/plaintiff for recovery of a sum of Rs.4,05,013/- payable on deposit letters.
2. The brief facts of the case are as follows:
The plaintiff is the wife of late AR.Lexmanan Chettiar and also the executrix of the 'Will', dated 13.10.1989 of the said AR.Lexmanan Chettiar. According to the custom and usage prevailing in Chettinadu, the plaintiff's husband had deposited around 15 deposits for various amount on various dates starting from 27.09.1978 to 16.09.1982 with one Shanmugam Chettiar, the father of the defendants. According to deposit receipts executed by the Shanmugam Chettiar, he agreed to repay the amount with interest at 12% per annum. The suit was filed for eight such deposit letters totally for a sum of Rs.4,05,013/- which is due and payable by the said Shanmugam Chettiar. While the probate proceedings were pending, the said Shanmugam Chettiar died on 25.04.1994, leaving behind the defendants as his legal heirs. Therefore, the defendants are liable to pay the said sum of Rs.4,05,013/- with further interest of Rs.1,35,000/- out of the properties o;f the said Shanmugam chettiar in the hands of the defendants.
3.The suit was resisted by the defendants. The deposits and execution of the deposit letters by Shanmugam Chettiar were denied stating that the plaintiff's husband Lexmanan Chettiar was a Non-resident and living in Malaysia and the said Shanmugam Chettiar was very close friend of him. Because of the friendship, there seems some exchange of letters and drawing of rupees and remittance of amount by Lexmanan Chettiar in favour of Shanmugam Chettiar with subsequent instructions as how the amount has to be disbursed and the relationship between the parties was one of 'principal and agent' and nothing more. The defendants would further state that the plaintiff was making demands even prior to filing of the suit and on the request of the defendants, the plaintiff sent a statement of accounts and on receiving the statements of accounts, the defendants informed that no amount was due from Shanmugam Chettiar to Laxmanan Chettiar and therefore, the defendants are not liable. The plaintiff has chosen to file a suit after the death of the said Shanmugam Chettiar. The suit is also barred by limitation.
4.On the basis of the above averments, the trial Court framed triable issues including the issue regarding limitation. On the basis of the oral and documentary evidences, the trial Court found that the amount payable under the deposit letters becomes payable on demand and therefore, the suit was filed within three years from the date of demand under Ex.A.10, notice, and therefore not barred by limitation. Aggrieved by which, the defendants have preferred the present appeal on various grounds and more particularly, on the ground that
(i) The learned Judge ought to have noted the fact that the mere demand by the Plaintiff after the expiration of the Limitation period would not confer any right to extend the period of limitation beyond three years under
Article 19 of the Limitation Act.
(ii) The lower Court ought to have appreciated that Exs.A2 to A9 will not bring the transaction under
Article 22 of Part II of the Schedule to the Limitation Act and that the transaction falls only under
Article 19 or 21 of Part II of the Schedule to the limitation Act, even assuming that the transaction between the Lakshmanan Chettiar and Shanmugam Chettiar in a genuine transaction.
5.Therefore, the point for consideration arises in this appeal is whether the suit is barred by limitation?.
6.The learned counsel for the appellant would submit that the alleged transactions were made from the year 1978-82 and the suit was filed only in the year 1998. Therefore, under
Article 19 of the Limitation Act, 1963, the period of limitation is three years. The learned counsel further contended that even assuming the transaction is "money deposits under an agreement" the period of limitation is three years from the date of demand. The learned counsel would submit that the plaintiff made an oral demand in September 1994 and at the request of the defendants, the plaintiff sent a statement of accounts on 24.10.1994 through her driver one Subbiah and again the statement of accounts was sent on 19.11.1994 and therefore, the demands were made as early as 1994 and the suit was filed 1998, therefore the suit is barred by limitation.
7.The learned counsel for the respondent would submit that the deposits were made between the period 1978 to 1982 and the deposit letters are agreements and the amount is payable on demand. Till the probate proceedings are over, the plaintiff, who is the executrix of the 'Will', was not able to make any demand and only thereafter, by a notice dated 29.03.1997, under Ex.A10, the demand was made. The same was received by the defendants and the 3rd defendant sent a reply, dated 16.04.1997, refusing to pay the money. Therefore, the period of limitation starts from 29.03.1997 and the suit was filed on 28.01.1998, within three years of such demand.
8.The learned counsel for the respondent invited the attention of this Court to the judgment of this Court in Murugappa Chetti Vs. Ramanathan Chetti reported in (A.I.R. 1935 Madras 734) wherein, in similar circumstances, this Court has held as follows:-
"Where a person deposited money with a Nattukottai Chetti at 12 months thavanai, with interest at one anna less than the usual rate and the Chetti agreed to repay the said amount to the order of the depositer in 12 months thavanai. That on a construction of the terms the deposit with the Chetti was as a banker for a fixed period of one year and that thereafter the deposit amount was payable on demand to the depositer with interest and that a claim for such money was governed by
Art.60 of the Limitation Act, and not by Art.59."
9.The learned counsel for the respondent would next invite the attention of this Court to the Division Bench judgment of this Court in Ramachandran Vs. Dorai Gounder reported in (1984 L.W.1) and the judgment of this Court in Adappa Chettiar Vs. Meenakshi Achi reported in (72 L.W.669 Part 33) for the same proposition.
10.Exs.A2 to A9 are the deposit letters. The letters are in the form of credit and debit. The defendants' father Shanmugam Chettiar had issued the letters. Ex.A2, is one such letter and it is in the form of credit and debit.
11.The similar terms are shown in the other deposits letters. The custom and usage of Chettinadu of such deposits and execution of such letters are admitted. The decision in 72 L.W. 669 cited supra is directly on the point. The case referred in the above said judgment was also relating to a similar case, which reads as follows:-
"Credit "M' and debit "A Rs..... ; interest Rs.1/100" and stamped with revenue stamps with signatures"
12.Therefore, the suit Ex.A2-9 are money deposited under agreements which shall be payable on demand. Though the words payable on demand is not mentioned it is implied. Therefore,
Article 22 of the Limitation Act, 1963 attracts.
13.Now, the question is when such demand was made? According to the plaintiff, the payment was made under Ex.A10, notice, dated 29.03.1997. Under Exs.A11 and A12, the first and second defendants have returned the notice and under Ex.A13, 3rd defendant sent a reply stating that the suit was barred by limitation. The defendants have filed various letters written by the plaintiff's husband to the defendants' father and they have produced many documents, which are not relevant.
14.The contention of the learned counsel for the appellant is that there were demands in the year 1994 and on request by the defendants, plaintiff sent a statement of accounts on 24.10.1994 and 19.11.1994. Ex.A.74 is the statement of accounts alleged to have been given to the defendants by the plaintiff. The learned counsel pointed out that since there was a demand made in the year 1994, the suit is barred by limitation.
15. In my considered view furnishing a statements of account will not amount to demand of money payable under the agreement. A demand under
Article 22, seems to be a specific demand, either oral or in writing. If it is oral, there must be some proof to show that there was an oral demand. Therefore, Ex.B.74, will not constitute a demand for the purpose of limitation.
16. Therefore, I am unable to agree with the arguments of the learned counsel for the appellants. The demand is made only under Ex.A10 and the limitation starts only from 23.09.1997. Therefore, the suit is filed in time and not barred by limitation. I have no reason to interfere with the judgment and decree of the trial Court.
17.In the result, the appeal is dismissed, confirming the decree and judgment, dated 06.08.1999, passed in O.S.No.43/98 on the file of Sub-Court, Devakottai. No costs.
MPK To The Sub Judge, Devakottai