JUDGMENT - PAUNIKAR G.A., J.: - This appeal is directed against the judgment and decree dated 19-11-1975 passed by the Civil Judge, Senior Division, Amravati, decreeing the claim of the plaintiff for Rs. 35,016.20 paise against the defendants and hence the defendants have filed this appeal. 2. The plaintiff filed a suit against the defendants for Rs. 35,016.20 on the basis of the Dharwar Chitti (Deposit note). The defendant No. 1 is a registered partnership firm of which defendants 2 to 11 are its partners and defendant No. 2 amongst them is the Managing Partner. The plaintiff contended that defendant No. 2 on behalf of defendant No. 1 took Rs. 20,000/- in cash on 14-4-59 as deposit for the business of the firm and in that connection he executed a Dharwar Chitti (deposit note). He agreed to pay interest on that amount at the rate of 0.50 n.p.p.c.p.m. and he gave in writing that the said amount would be credited to the account of the plaintiff. As the plaintiff required the amount, he sent notice dated 13-9-1971 demanding the payment within 8 days to the defendants. It was served on defendant No. 2 on 14-9-1971, on defendant No. 3 on 4-10-1971, defendant No. 10 on 15-9-1971, while other defendants refused to accept the notice. Defendant No. 2 replied the notice on 15-9-1971 and defendant No. 3 on 8-10-1971. The plaintiff, therefore, filed his suit for recovery of Rs. 20,000/- + Rs. 15,000/- as interest on the amount from 14-4-1959 to 14-10-1971 at 0.50 paise p.c.p.m. plus Rs. 16.20 as notice charge i.e. for total amount of Rs. 3,5016.20 paise. 3. The defendants 1 and 2 vide written statement Exh. 19 denied that Rs. 20,000/- were taken as deposit. They submitted that it was a loan transaction. The defendant No. 1 Company was in need of money for the picture 'Bahurupiya'. The defendants were dealing in Cinema business. The plaintiff gave the said amount as a loan to the defendant No. 1 through defendant No. 2 on 14-4-1959 and the defendant No. 2 executed a chitti in suit in favour of the plaintiff. They submitted that the word 'Dharwar' in Marathi appearing in the said chitti is inserted subsequently and has not been scribed by defendant No. 2. The plaintiff gave the said amount as a loan to the defendant No. 1 through defendant No. 2 on 14-4-1959 and the defendant No. 2 executed a chitti in suit in favour of the plaintiff. They submitted that the word 'Dharwar' in Marathi appearing in the said chitti is inserted subsequently and has not been scribed by defendant No. 2. The words “Finance for picture Bahurupiya with partnership with “Tapar and Company” were scribed as agreed upon at the time of the said transaction, but it is seen that they were scored out subsequently. They admitted the rate of interest agreed as 0.50 paise p.c.p.m. They submitted that the plaintiff had orally demanded the amount in 1961. They replied the plaintiff's notice. They submitted that the suit is barred by limitation. They also submitted that the plaintiff is a regular money lender by profession and the suit is liable to be dismissed for want of non-compliance of the provisions of the Money Lenders Act. The transaction in question is at any rate advance at interest and is, therefore, a loan. 4. The defendants 3, 4 and 10 vide their written statement at Ex. 27 reiterated the same contentions as those of defendants 1 and 2. In addition they submitted that defendant No. 7 is not a partner in the firm defendant No. 1. The chitti alleged is a pro-note not sufficiently stamped and hence is inadmissible in evidence. 5. On the aforesaid pleas the learned trial Court framed necessary issues. The plaintiff examined himself as P.W. I and the defendants examined Kesardas defendant No. 2 as D.W. 1. After appreciating both oral and documentary evidence on record, the trial Court held that (a) the defendants failed to prove that the suit transaction is a loan; (2) the defendants failed to prove that the suit document is a promissory note; (3) Defendants 1 and 2 failed to prove that the word 'Dharwar' was added by the plaintiff and scoring was also done by the plaintiff without their knowledge and consent and with ulterior motive. (4) The defendant No. 2 has executed Dharwar Chitti (5) the claim of the plaintiff is within time. The trial Court on the basis of these findings decreed the claim of the plaintiff for Rs. 35,016.20 paise with costs and future interest at 2% p.a. on Rs. (4) The defendant No. 2 has executed Dharwar Chitti (5) the claim of the plaintiff is within time. The trial Court on the basis of these findings decreed the claim of the plaintiff for Rs. 35,016.20 paise with costs and future interest at 2% p.a. on Rs. 20,000/- from the date of suit till realisation vide judgment and decree dated 19-11-1976. The defendant have challenged the same in this appeal. 6. The real question that requires consideration in this appeal is whether the transaction dated 14-4-1959 between the parties under the said chitti is a transaction of loan or a transaction of deposit. The period of limitation for suit is the same in both the cases, but the necessity for decision arises because the starting point of limitations are different. In case of a loan it is the date when the loan is made, while in case of deposit it is the date on which the demand for repayment is made. The trial Court held the said chitti as deposit and notice dated 13-9-1971 by the plaintiff as the demand for repayment and held the suit filed on 15-10-1971 within time. He rejected the contention of the defendants that the said chitti is a loan transaction and gave the finding on issue of limitation against them. The learned Counsel for the appellant Shri Chandurkar, reasserted the very same contentions in this appeal. On the contrary, Shri Palshikar for the respondent justified the findings of the trial Court. 7. It is no doubt true that the use of the term “Loan” or “Deposit” cannot alter the substance of the transaction and hence will not itself be conclusive to hold whether the transaction is a loan or deposit. Whether the particular transaction is of a deposit or of a loan transaction has to be decided on the basis of facts of each case, the surrounding circumstances, the relationship and the character of transaction and the manner in which the parties treated the transaction. Loans and deposits are mutually exclusive. Both are debts repayable. The test to determine whether the transaction is one of loan or deposit is to ascertain whether the money was advanced to create relationship of debtor and creditor and whether there is an obligation on the part of the person receiving money to seek out the other party and repay. Loans and deposits are mutually exclusive. Both are debts repayable. The test to determine whether the transaction is one of loan or deposit is to ascertain whether the money was advanced to create relationship of debtor and creditor and whether there is an obligation on the part of the person receiving money to seek out the other party and repay. While the loan is repayable the moment it is incurred, in the case of deposit the payment will depend upon the maturity date fixed therefore or the terms of agreement relating to demand on the making of which the deposit becomes repayable. A deposit is distinct from a loan means the passing of money is not for the convenience of man to whom it is given, but for the benefit of the person who hands it over. The element of benefit of a person handing over the money is the characteristics of deposit. The fact that a person who receives it may have use of it is only a subsidiary consideration. The depositor may keep and use the money till asked for. The depositor is under no duty to seek out the depositor and demand by the depositor is a normal condition of obligation of the depositee to repay. If the intention is that the amount is to be paid by the payee without the payer asking for its return, the transaction is a loan. If, however, intention is that the amount is to be kept and payment is to be made only when it is asked for and not otherwise then it is deposit. Where one person deposits money with another in confidence and not because the latter was in need of money, the transaction is of deposit. The trial Court has relied upon (Anandrao Janbaji v. Kaushalyabai)1, 1969 Mh.L.J. 10 which has distinguished loan from deposit, exactly on the principles aforesaid. 8. We have now to see whether the transaction in this case is a loan or deposit in the light of the principles aforesaid irrespective of use of the word deposit in the document. The plaintiff in para 1 of the plaint have alleged that on 14-4-1959 at peth Amravati on behalf of Tapar and Company, Amravati, the managing partner Shri Kesardas took Rs. The plaintiff in para 1 of the plaint have alleged that on 14-4-1959 at peth Amravati on behalf of Tapar and Company, Amravati, the managing partner Shri Kesardas took Rs. 20,000/- in cash as a deposit for business of the firm and in that connection he executed the Dharwar chitti (deposit chit) filed in the case. He agreed to pay interest on that amount at the rate of eight annas (fifty paise) p.c.p.m. and he gave it in writing that the said amount would be credited to the account of the plaintiff. These averments in the plaint itself reveal that the passing of the amount is for the benefit of the defendants to whom it is given and nor for the benefit of the plaintiff who has given it. The element of benefit of a person handing over the money is the essential characteristic of deposit which is lacking in the case. The amount advanced by the plaintiff is at interest. The plaintiff has not pleaded any agreement about payment, whether the deposit was for a specified period and the repayment was to be made on maturity date thereof or whether repayment was to be made only after demand at any time after the advance. This is a serious flaw in the plaint itself. Further the character of deposit loses significance in view of plaint averment itself that the defendant No. 2 took Rs. 20,000/- in cash for the business of the firm as the person receiving the deposit may use the same or any part thereof is not a necessary but only a subsidiary consideration. In my opinion, in the light of the principles given in preceding paras facts of this case do not satisfy the essential requirements of deposit. 9. The plaintiff in his deposition as P.W. 1 (Ex. 40) has really twisted the fact and stated, “I had given Rs. 20,000/- to the defendant No. 2 as deposit (Dharwar)”. He has also not deposed about any agreement about repayment. In para 8 of his deposition he stated that “Through Indarchand Lunawat, I had given that money to Tapar and Co”. He further stated that, “I had got the message from Indarchandji Lunawat that Tapar and Co. was in need of money, and whether I was willing to give them my money. But then I had not enquired, as to for what purpose Tapar required that money. He further stated that, “I had got the message from Indarchandji Lunawat that Tapar and Co. was in need of money, and whether I was willing to give them my money. But then I had not enquired, as to for what purpose Tapar required that money. Then I did not raise the point of interest with Indarchandji. Then Indarchandji had told me that Tapar would pay the interest as per the custom for the deposit.” The plaintiff it appears has been cautious in his deposition as he did not disclose why the defendants wanted money. In fact he has stated in the plaint itself that the amount was received for the business of the firm. He knew that the defendants wanted loan as they were in need of money obviously for their cinema business i.e. for financing the picture 'Bahurupiya' and the plaintiff advanced Rs. 20,000/- at interest at 6% p.m. on the say of Indarchand and it appears that there was no direct talk of deposit or its terms between the plaintiff and defendant No. 2 and the transaction was brought about through the intermediary of Indarchandji who was already dead when the evidence was recorded in the case. Thus there was created a relationship of creditor or debtor between the plaintiff and the defendants and an obligation on the part of the defendants to find out the plaintiff and repay. The transaction in question is to my mind obviously a loan beyond doubt and the loan was repayable the moment it is incurred. I do not attach any significance and importance to the word 'Dharwar' and controversy between the parties with respect thereto, whether it was initially there or it has been added subsequently as in my opinion its presence or absence cannot alter the substance of transaction between the parties and is not decisive to arrive at a finding whether the suit transaction is a loan or deposit. I also do not attach any importance to the controversy between the parties as regards the initial presence of the writing after the word on account of or its subsequent scoring as the same is not relevant in view of plaint averments and the evidence of the plaintiff aforesaid. The defendant No. 2 as D.W. 1 Kesardas at Ex. 66 deposed that, “I had to finance the picture Bahurupiya, and hence I was in need of money. The defendant No. 2 as D.W. 1 Kesardas at Ex. 66 deposed that, “I had to finance the picture Bahurupiya, and hence I was in need of money. Hence I myself approached the plaintiff and asked for Rs. 20,000/-. Then plaintiff was doing a money lending business. Then the plaintiff had stated that he would decide about it within 2-3 days and then he would tell me. I met him after two three days, and asked for the money. The plaintiff gave me that amount of Rs. 20,000/-. First he had asked for the interest at the rate of 0-12-0 annas p.c.p.m. When I said that it is a big amount, and the interest rate should be less, he agreed for the interest rate and Rs. 0-8-0 annas p.c.p.m. Then I executed that chitti Ex. 41 in English”. These facts are fully corroborated by the recitals in Ex. 41 itself. As far as the rate of interest is concerned it is changed to eight annas, but there appears no initials by either of the parties. He stated that Marathi letter 'Dharwar' at the top and scoring is not his nor has he initialled the same. I have no hesitation to believe the evidence of defendant No. 2, except controversial parts about addition in Marathi as 'Dharwar' and scoring which in my opinion is not at all relevant for the purpose of decision of the real transaction between the parties, as I have held earlier. 10. The trial Court has rightly held that the defendants were in need of money. The trial Court however was obviously wrong in holding that it was the definite case of the plaintiff that there was no time limit for this deposit. One the contrary, the plaintiff has to plead the term about payment in the plaint itself if he relies on his case of deposit. I have already pointed out that there are absolutely no averments in the plaint in this respect and this is a serious infirmity in the case of the plaintiff as one of the essential requisite of deposit to be pleaded is tacking in the plaint. Evidence referred to by the trial Court i.e. para 8 of Ex. 40 is inadmissible in the absence of pleadings and has to be ignored or rejected. Evidence referred to by the trial Court i.e. para 8 of Ex. 40 is inadmissible in the absence of pleadings and has to be ignored or rejected. The trial Court has obviously erred in assuming a case for the plaintiff when the plaint itself is silent. The trial Court further erred in assuming that the defendants who pleaded a loan transaction, has to plead when the loan amount was to be repaid. In fact as I have stated in preceding para that the loan is repayable the moment it is incurred and limitation for its recovery in the event of nonpayment by the debtor is three years from the date of loan. Consequently no specific pleadings are necessary by the defendants in the matter. The normal practice that the debtor has to seek his creditor for payment is of no relevance in this case. The debtor is certainly under obligation to go to the creditor for payment and pay him the amount at his place. However, he cannot insist that the creditor should go to him for recovery. The creditor is not required to knock the doors of the debtor for recovery. However, if the debtor did not at all pay the amount, the plaintiff has to take action against him within a specified period of three years. If the plaintiff sleeps over his right he is disentitled to file a suit at any time long after the prescribed period of limitation of three years from the date of loan taking advantage of nomenclature or use of mere word Dharwar Chitti, assuming but not deciding whether it was really there initially. None of the points mentioned in the case reported in note No. 10 in 1969 Mh.L.J. 10 are in favour of the plaintiff and the finding of the trial Court that the said two points are in favour of the defendants is obviously wrong as he failed to appreciate the pleadings and evidence on record and legal provisions in the matter in their proper perspective. 11. In view of my reasonings and findings above, I hold that the trial Court definitely erred in holding Ex. 41 as a Dharwar Chitti. I hold that it was a chitti evidencing loan transaction. The limitation for filing suit for recovery of loan would be three years from 14-4-1959 i.e. 14-4-1962. 11. In view of my reasonings and findings above, I hold that the trial Court definitely erred in holding Ex. 41 as a Dharwar Chitti. I hold that it was a chitti evidencing loan transaction. The limitation for filing suit for recovery of loan would be three years from 14-4-1959 i.e. 14-4-1962. The suit is filed on 15-10-1971 and hence it is hopelessly barred by limitation and was liable to be dismissed. The judgment and decree of the trial Court, therefore, cannot be sustained. 12. In the result, this appeal is allowed. The judgment and decree of the trial Court dated 19-11-1976 is set aside and instead the claim of the plaintiff stands dismissed. However, in view of peculiar facts and circumstances of this case. I order that the parties shall bear their own costs throughout. Appeal allowed. -----