P L D 1959 (W (PLP)

"Description of suit. Period of limitation.??????????? Time from which period begins to run. For money deposited under an agreement that it shall be payable on de?mand, including money of a customer in the hands of his banker so payable. Three years????? When the de?mand is made." This Article does not apply because the plaintiff has not alleged that the money was payable to him on demand. Moreover, it is clear at this stage of the proceedings that the plaintiff has not been able to establish that the defendant retained the money with himself as a deposit. Moreover, as pointed out in Madhavdas Parmanand v. Jan Muhammad????? Ghulam Hyder (1942 Sind 37) this Article cannot be appropriately applied to a case where the plaintiff is not entitled to the money immediately on its receipt by the defendant. The plaintiff was not entitled to the money at once on paying it, without changing the nature of the transaction and introducing new factors if the cancellation of the proposal of purchase, because the object was that it should be handed over to the seller or his agent. The counsel of defendant contended that Article 62 was applicable. The Article is as follows :‑ "Description of suit. Period of limitation.??????????? Time from which period begins to run. For money payable by? the defendant to the plaintiff for money received by the defendant for the plaintiff's use. Three years.???? When the money is re?ceived." This Article is not applicable because the money was not received by the defendant for the plaintiff's use. It was paid by the plaintiff himself to the defendant for being employed towards a joint venture. The plaintiff has claimed it back on the ground that the venture failed. The counsel of the plaintiff has suggested to more Articles. They are Article 97 and Article

89. Article 97 is as follows :‑ "Description of suit. Period of limitation.??????????? Time from which period begins to run. For money paid upon an Existing consideration which afterwards fails. Three years.???? The date of the failure. There was no "existing consideration". The parties had the common object of purchasing a property. An object is different from consideration. When money is paid by one person to another so that with it he may achieve a certain objective, there may be implied trust or creation of an agency. In either case there may not be any consideration. There was none in this case. Article 89 runs as follows :‑ "Description of suit. Period of limitation.??????????? Time from which period begins to run. By a principal against??? his agent for moveable property received by the latter and not accounted for.?????????????????????????????????????????? Three?? years.?? When the account, is during the continuance of the agency, demand?ed and refused or where no such, or demand is made, when the agency terminates. The counsel of .the plaintiff contended that an agency was created in terms of section 182 of the Contract Act, 1872 by the employ?ment of the defendant by the plaintiff for making a bargain and representing the plaintiff in this deal with the seller of the property. The deal did involve the representation of the plaintiff partly if the defendant was negotiating the transaction partly on behalf of himself and partly on behalf of the plaintiff. There was, however, no representation of the plaintiff if the defendant did not act as an agent and was carrying the negotiations as principal to principal. In this case the negotiations were admittedly carried on by the defendant as an agent because he took a cheque for a lac of rupees drawn by the plaintiff, (Ex. 5) and tried to strike a bargain with the seller on its basis. But this Article does not apply because from its language it is clear and, the learned Judges who decided the case Kesho Prasad v. Sarwan Mal (21 C W N 561) have pointed out that a suit contemplated by this Article is a suit in which accounts have to be rendered. There is no question of rendition of account in this suit. No other article has been suggested as applicable by the learned counsel of the parties. It appears to be that the residuary provision, Article 120, applies to this case and the period of limitation is six years from the cause of action of the suit. The payment was made on the 3rd of April, 1948. According to para 5 of the plaint the plaintiff did not know that the transaction had failed for one year afterwards. The defendant has not denied this fact. It follows therefore and I hold, that the cause of action arose in or about April, 1949.? Demand for the refund was made by the plaintiff through a lawyer's notice (Ex. 12) on 18th September 1951. This date (Actually 19‑9‑51) is stated in para 7 of the plaint as the date of the cause of action. This is not correct. The suit was, however, instituted on 24‑11‑1951 and is within time for purposes of Art. 120 however the time may be computed. The result of the above discussion, in the order of the issues, is as follows :‑ The plaintiff paid Rs. 70,000 to the defendant on 3‑4‑48. (2) (a) The cheque was not given to the defendant in the circumstances stated in para 3 of the written statement. (b) The cheque for Rs. 30,000 dated 3‑4‑48 was not given by the plaintiff to the defendant in repayment of defendant's money as stated in para 3 of the written statement. (c) The defendant had not paid Rs. 30,000 to the plaintiff. (3) The defendant is indebted to the plaintiff in the sum of Rs. 70,

000. I, therefore, decree the suit of the plaintiff for Rs. 70,000 with interest at the rate of 6% per annum from the date of the suit until realisation and costs. There is no question of the defendant getting costs under issue No.

5. A. H.??????????????????????????????????????????????????? ??????????????????????????????????????????????????????????? Suit decreed.