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Karnataka High Court · body

2010 DIGILAW 913 (KAR)

U. Dharmadas v. B. M. Harishchandra Bangera

2010-08-24

ARAVIND KUMAR

body2010
Judgment :- 1. This is a defendant’s appeal questioning the correctness and legality of the judgment and decree passed by the I Additional Civil Judge (Sr. Dn) Mangalore, in O.S. NO.144/2000 dated 4-4-2007 whereunder plaintiff’s suit for recovery of money came to be decreed with interest and costs. 2. The facts in nutshell are as follows. The parties are referred to as per their ranks in the trail Court. 2.1 Plaintiff obtained on lease a shop premises in a commercial building bearing NO. 22-3-289 situated at Mangalore, for the purposes of running a Bar and Restaurant on monthly rent of Rs. 4,500/- from the defendant. The period of lease agreed was only one month i.e from 6-9-1992 to 5-10-1992. Earlier entering into lease with the plaintiff defendant was running a Bar and Restaurant in the said premises on account of the license granted to the defendant having expired it was agreed to be leased in favour of the plaintiff. Plaintiff deposited a sum of Rs. 75,000/- as security deposit by cheque No.21398 dated 6-9-1992 drawn on M.C.C. Bank Limited Kankanady Brach. Mangalore in favour of the defendant and it has been encashed. It was agreed that security deposit would be refunded at the time of vacating the premises without interest. An agreement dated 6-9-1992 also came to be executed between the parties agreeing on the terms and conditions of lease. 2.2 Plaintiff applied for necessary license to run Bar and Restaurant in the shop premises above referred and after consideration his application came to be rejected by the authorities and on informing the defendant that he was unable to secure the license, plaintiff is said to have vacated the premises. It was contended in the suit that defendant did not repay the advance amount of Rs. 75,000/- paid as security deposit. Though plaintiff could not run the business for a single day he had paid rents for three months and said rents were paid through cheques drawn on Bhagavathy Co-operative Bank, Jeppu, Mangalore drawn in favour of the defendant. It was further contended that after repeated requests the defendant issued a cheque for Rs. 70,000/- dated 22-3-1996 drawn on Mangalore Cahtolic Co-operative Bank drawn in favour of plaintiff. It was further contended that after repeated requests the defendant issued a cheque for Rs. 70,000/- dated 22-3-1996 drawn on Mangalore Cahtolic Co-operative Bank drawn in favour of plaintiff. However, it was not presented at the request of the defendant and date in the cheque came to be changed by the defendant himself after making necessary corrections and affixing the signature at the places where correction was carried out. Plaintiff got issued a lawyer’s notice on 23-5-1998 demanding payment from the defendant by calling upon the defendant to refund the security deposit of Rs. 75,000/- with interest at 15% per month. Since defendant did not repay the amount plaintiff filed the suit in question on 16-4-1999 for recovery of Rs. 75,000/- paid as security deposit. 2.3 Since there were certain office objections raised by the Registry namely nonpayment of deficit Court fee suit came to be adjourned from time to time and on compliance of office objections suit came to be numbered on 25-6-2000 and summons was issued to the defendant. 2.4 On service of summons defendant entered appearance and filed the written statement on 9-10-2002. On the basis of the pleadings, the trail Court framed the following issues for its consideration: “(i) Whether the plaintiff proves that the defendant is liable to pay back the security amount of Rs. 75,000/- deposited by him with the defendant as per the Rent Bond dated 6-9-1992 as alleged? (ii) Whether the plaintiff proves that the defendant is also liable to pay interest at 16% p.a. on the above said security deposit amount? (iii) Whether the plaintiff proves that he is entitled for the judgment and decree as sought for? (iv) To what order or decree? 2.5 Plaintiff got himself examined as P.W.1 and got marked Ex.P.1 to P.5 Defendant also got himself examined as D.W.1 and got marked Ex.D.1 to D-4. No other witnesses were examined on behalf of the either of the parties. On considering the evidence on record and after hearing the learned advocates appearing for the parties, trail Court by its judgment and decree dated 4-4-2007 decreed the suit for Rs. 1,37,175/- with interest at 9% p.a. from the date of suit till date of realization. It is this judgment and decree which is assailed in this appeal. 3. I have heard the learned advocates appearing for the parties. 4. 1,37,175/- with interest at 9% p.a. from the date of suit till date of realization. It is this judgment and decree which is assailed in this appeal. 3. I have heard the learned advocates appearing for the parties. 4. Sri.D.R. Rajashekarappa, learned counsel appearing for the appellant-defendant would contend that admittedly plaintiff vacated the premises on 31-12-1992 and there was no demand for refund of security deposit till 1996 and the alleged cheque issued on 22-3-1996 is to be construed as an acknowledgment of debt as contemplated under Section 18 of the Indian Limitation Act 1963, and hence the suit filed on 16-4-1998 was barred by limitation. He would contend that demand for payment of the money under Ex.P.4 which is dated 6-9-1992 made after lapse of a period of four years was barred by limitation and hence defendant was not liable to pay the amount as demanded by the plaintiff. He would also submit that if the contention of the plaintiff to be accepted that he vacated the premises on 31-12-1992 suit ought to have been filed within three years from the said date namely 31-12-1995 and in view of the suit having been filed on 16-4-1999 he would contend that the suit was barred by limitation. He would also submit that receipt dated 6-9-1992 is to be construed as a bond which would entitle the plaintiff to sue for recovery of the money stated therein, even then the suit ought to have been filed within the day specified in the said document namely Ex.P.4 which according to the learned counsel for the appellant is the date of vacating the premises (31-12-1992) the suit ought to have been filed within three years from the day so specified in the receipt dated 6-9-1992 and would submit that article 28 of the Limitation Act. 1963 would be squarely applicable to such document and it has is to be construed as a bond as defined under Section 2(d) of the Limitation Act and hence suit was barred by Limitation. He would draw the attention of the Court to various averments made in the plaint to contend that it is the case of the plaintiff himself that suit is based on the said receipt dated 6-9-1992 and the plaintiff has to establish from the averment made in the plaint that suit is within the period of limitation. He would draw the attention of the Court to various averments made in the plaint to contend that it is the case of the plaintiff himself that suit is based on the said receipt dated 6-9-1992 and the plaintiff has to establish from the averment made in the plaint that suit is within the period of limitation. He further contends that it is the case of the plaintiff himself that suit is based on the said receipt dated 6-9-1992 and the plaintiff has to establish from the averments made in the plaint that the suit is within the period of limitation. Accordingly he submits that when it is so construed the suit cannot be held to be within the period of limitation and prays for dismissal of the suit and for allowing the appeal. 5. He would also draw the attention of the Court to the cheque issued by the defendant which is at Ex.P.1 to contend that it would not be a valid acknowledgment of debt since it was barred by limitation. Even as on the date of issuance of the said cheque debt had become time barred and as such an acknowledgment of a time barred debt would not ensure to the benefit of the plaintiff since plaintiff has relied on the cheque namely Ex.P.1 to claim the amount in the suit. Mr. Rajasekharappa elaborating his submissions would submit that interest that has been awarded by the Civil Court is contrary to the provisions of Section 34 of the Code of Civil Procedure. He would draw the attention of the Court to the finding given by the trial Court on issue No.2 at paragraph 13 of the judgement and contend that trial Court having not accepted the peal put forward by the plaintiff regarding claim for interest it is deemed to have negative the claim of the plaintiff and at the most plaintiff would be entitled to interest as awarded on the security deposit and not on the suit claim as it would amount to granting interest on interest and hence he prays for allowing the appeal and for setting aside the judgment and decree passed by the trail Court. 6. Per contra Sri. 6. Per contra Sri. Ariga appearing on behalf of the plaintiff would support the judgment and decree passed by the trail Court and submits that contention of the appellants’ counsel that the cheque in question amounts to an admission of a time barred debt by the plaintiff should not be accepted for the reason that Article 22 of the Limitation Act would be applicable and he would submit that period of limitation starts the moment the demand is made on the defendant and all request was made to defendant cannot be construed as a demand and in the instant case request was made to the defendant and defendant had issued the cheque as per Ex.P.1 on 22-3-1996 and thereafterwards requested the plaintiff not to present the cheque and it was revalidated by making necessary endorsement on Ex.P.1 and only when the promise of defendant was not kept up, plaintiff was constrained to get legal notice issued on 23-5-1998 as per Ex.P.2 and it was in the said notice a demand came to be made for the first time demanding refund of security deposit. He would submit that even if the demand is construed as made on 22-3-1996 on account subsequent endorsement made by the defendant on the cheque in question Ex.P.1 by changing the date as 4-3-1997 and thereafterwards as 12-6-1997. The suit filed on 16-4-1999 would be well within the period of limitation as required under Article 22 of the Limitation Act and hence he submits that contention of the learned counsel for the appellant that Section 18 of Limitation Act, 1963 would be applicable cannot be accepted. 7. He would also draw the attention of the Court to I.A. No.1 filed before the trail Court by the defendant whereunder the defendants sought for rejection of the plaint under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure which application was filed for rejection of the plaint on the ground of limitation and the trail Court by order dated 24-9-2005 had dismissed the same and the said order came to be confirmed by this Court in C.R.P.1073/2005 and thus he contends that the appellant cannot urge the same ground once again. 8. Mr. 8. Mr. Ariga would draw the attention of the Court to the averments made in the plaint particularly paragraph 3 to contend that demand was made in the year 1998 i.e., 23-5-1998 and certain admissions made by the defendant during the court of cross-examination about the receipt of Rs. 75,000/-as security deposit to contend that there is no dispute with regard to receipt of security deposits and he would submit that section 18 of the Limitation Act, 1963 which has been pressed into service by the appellant would have not application to the facts of the present case. On these grounds he seeks for dismissal of the appeal and for confirming the judgment and decree passed by the trial Court. 9. In reply Sr. D.R. Rajasekharappa, learned counsel would contend by way of alternate submission that Article 28 of the Limitation Act would be applicable inasmuch as Ex.P.4 has to be construed as a bond and the date has been specified therein namely the date of vacating the premises as such the suit ought to have been filed with three years as per Article 28 of the Limitation Act. However, Sri, Ariga, learned counsel for the respondent would submit that Article 28 would have no application since there is no specific day mentioned in Ex.P.4 and the one mentioned regarding vacating the premises cannot be construed as starting point for limitation envisaged under Article 28 as such he seeks for rejection of the same. 10. In support of his submission Sri, Chandranath Ariga relies upon the following Judgments: (i) AIR1956 S.C. 12 Annamalai Vs. Veerappa. (ii) AIR 1956 M.P. 68 M/S Sharda Talkies (Firm) Vs. Madhulata Vyas (iii) AIR 1956 M.P 77 Theodore Ekka V. Evangelical Church (iv) I.L.R 1990 Kar 1697. V. Roja Srinivasulu Vs. M/s Universal Corporation 11. Having heard the learned Advocates for the parties following points arise for my consideration: (i) Whether the suit was barred by limitation in view of Section 18 of the Limitation Act, 1963 and whether Section 18 is attracted to the facts and circumstances of the case? (ii) Whether Article 28 or Article 22 of the Limitation Act, 1963 would be applicable to the transaction in question? (iii) Whether the trial Court was justified in awarding interest as stated in the judgment and decree? (ii) Whether Article 28 or Article 22 of the Limitation Act, 1963 would be applicable to the transaction in question? (iii) Whether the trial Court was justified in awarding interest as stated in the judgment and decree? (iv) Whether the judgment and decree passed by the trial Court in O.S. NO.144/2000 is required to be reversed or affirmed or modified? (v)To what order or decree? 12. Before delving upon points formulated herein above for being answered, it would be necessary to state in brief the background of the case. BACKGROUND OF THE CASE 13. The defendant was carrying on Bar and Restaurant business in the shop premises bearing No.23-2-289 and on account of his inability to get the license renewed and the license having expired he had decided to let out the said premises and plaintiff approached the defendant for obtaining the lease of the said shop which is situated in a commercial building. The parties namely the plaintiff and defendant agreed that monthly rent of the premises would be Rs. 4,500/- i.e., Rs. 2,000/- as rent and Rs. 2,500/- by way of hire for furniture and fittings and other amenities. It was also agreed that Lease was to commence from 6-9-1992. Pursuant to the said understanding Lease deed dated 6-9-1992 came to be entered into between the parties. The said documents has been produced at Ex.P5 and it is captioned as “rent bond”. 14. Be that as it may, on the day of entering into lease plaintiff paid a sum of Rs. 75,000/- as advance or security deposit. The said amount was paid by plaintiff to defendant through Cheque is not in dispute as also its encashment by the defendant. On receipt of the said Cheque defendant has executed a receipt dated 6-9-1992 which came to be marked as Ex.P4. On these facts there is no dispute between the parties. It is only when plaintiff could not commence the business of bar and restaurant in the premises obtained by him from defendant and after vacating the same when he sought for refund of Security Deposit paid by him the dispute commenced. 15. RE: POINT NO: 1. The plaintiff was to commence the Bar and Restaurant business in the same premises and as such he had applied for obtaining license from the State to run the Bar and Restaurant. 15. RE: POINT NO: 1. The plaintiff was to commence the Bar and Restaurant business in the same premises and as such he had applied for obtaining license from the State to run the Bar and Restaurant. The authorities after considering the application rejected the application of the plaintiff. On account of which plaintiff could not commence the business. It was contended by the plaintiff that on account of the rejection of his application for grant of license he could not commence the business and as such the premises obtained on lease from defendant where the business was proposed to be run was surrendered back to the defendant. It was contended that it was leased to different parties by the defendant and defendant’s wife was also running a STD Booth in a portion of said premises. However, security deposit which was paid by the plaintiff had not been refunded to plaintiff and he had paid 3 months rent by way of cross cheques and after repeated request to the defendant, he issued a cheque dated 22-2-1996 for Rs. 70,000/- drawn on Mangalore Catholic Co-operative Bank Ltd., Kankanady, Mangalore towards refund of security deposit. Admittedly the said cheque was not presented by the plaintiff at the request of defendant. It is the contention of the plaintiff that at the request of the defendant cheque was not presented and defendant had promised to arrange for the money as such the date in the cheque came to be altered/changed by making necessary corrections and also after affixing the signature by the defendant and in spite of sufficient time having been granted defendant had not paid the amount and as such plaintiff got issued a legal notice on 23-5-1998 as per Ex.P2 on account of denial of the claim by defendant suit came to be filed. 16. 16. At this juncture it would be necessary to examine the contention of the learned Counsel for appellant as to whether cheque in question namely Ex.P1 can be held to be the basis on which suit in question has been filed and whether this has to be construed as an acknowledgment of debt and when so construed whether Section 18 of Limitation Act, would be applicable and when the said Section if applied would the claim made in suit would fall within the debt to be within the stipulated period of limitation and can such an acknowledgment be recognized under law. Hence, section 18 of the Limitation Act is extracted herein below which reads as under: “18 Effect of acknowledgment in writing (1)Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed: but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation: For the purposes of this section : (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right. (b) the word “signed” means signed either personally or by any agent duly authorized in this behalf, and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.” 17. In order to examine this contention it would be necessary to find out the nature of the transaction between the parties. In order to examine this contention it would be necessary to find out the nature of the transaction between the parties. It is not the case of the defendant that plaintiff had advanced a loan for being repaid. It is not the case of the defendant that on account of any existing debt the said cheque namely Ex. P1 came to be issued. A perusal of the receipt Ex.P.4 issued by the defendant after having received a sum of Rs. 75,000/- as security deposit would reveal that said amount was received by the defendant from the plaintiff as a refundable security deposit to be paid at the time of vacating the premises without interest. The “rent bond” which is at Ex.P5 is silent on this aspect. Hence, it would be safe to rely upon the pleadings of the parties. Plaintiff has contended at paragraph II(b) that the amount of Rs. 75,000/- was paid to defendant as a security deposit in respect of the premises obtained by him on lease. The defendant in the written statement does not dispute this fact. On the other hand it is stated to the following effect. “There is no provision for interest on security amount”. 18. Now turning towards the evidence parties tendered, it would be of use to extract the examination in-chief of plaintiff dated 4-8-2004 at paragraph 3 which reads as under: “3. I say, the defendant had accepted a cheque bearing No. 21398 dated 6-9-1992 for Rs. 75,000/- drawn on M.C.C Bank Ltd. Kankanady Branch, Mangalore and encashed the same for security deposit with the definite understanding of refund without interest. 19. In the cross-examination of Pw.1 there is not even a suggestion made by the defendant that the defendant is not liable to pay the security deposit. In fact in the cross-examination of Pw.1 dated 29.01.2007 it is stated by PW.1 as follows: 20. Now looking at the evidence of the defendant in examination-in-chief the defendant admits that he received a sum of Rs. 75,000/- as advance from the plaintiff. In paragraph 4 of the cross-examination dated 26-3-2007 defendant admits about receipts of Rs. 75,000/- as Advance deposit which reads as under: 21. Now looking at the exhibits it is seen that as per Ex.P3 namely the reply notice issued on behalf of the defendant at paragraph 2 it is admitted by the defendant that deposit of Rs. In paragraph 4 of the cross-examination dated 26-3-2007 defendant admits about receipts of Rs. 75,000/- as Advance deposit which reads as under: 21. Now looking at the exhibits it is seen that as per Ex.P3 namely the reply notice issued on behalf of the defendant at paragraph 2 it is admitted by the defendant that deposit of Rs. 75,000/- was taken without interest. Thus, both oral and documentary would clearly go to show that it is not a loan transaction but on the other hand it is a transaction between the lessor and lessee whereunder the lessor has agreed to refund the lessee the security deposit received by him at the time of vacating the premises. Section 18 of the Limitation Act prescribes as to what would be the effect of an acknowledgment of debt. Any debt after it had or has become time barred and any acknowledgment after the period of limitation would not revive the cause of action or would not revive the limitation. In the instant case it cannot be held as stated herein above that there was any loan transaction between the parties to hold that Section 18 would be applicable to the facts of the case. Even otherwise if it is to be construed or accepted that it is a debt which had become payable by the defendant to the plaintiff, existence of the said debt was not denied by the defendant and having accepted the debt and paid the cheque on 22-2-1996 under Ex.P1 and the claim putforward by the plaintiff with a request to repay the amount would get subsumed from the last day of the limitation. As such the limitation if any would start or commence from the said date or any other subsequent date which may arise on account of the subsequent events. In view of the above discussion I am of the considered view that the contention of the learned Counsel for appellant that suit was barred by limitation under Section 18 of the Limitation Act cannot be accepted and it is hereby rejected. Accordingly point No.1 is answered against the appellant and in favour of the respondent. 22. Re Point No.(ii): The issue revolves around application of relevant Article of the Limitation Act, 1963 to the claim made in the suit. Accordingly point No.1 is answered against the appellant and in favour of the respondent. 22. Re Point No.(ii): The issue revolves around application of relevant Article of the Limitation Act, 1963 to the claim made in the suit. The contention of the plaintiff is that Article 22 is applicable and the contention of learned Counsel for appellant is Article 28 is applicable. In order to consider these two contentions it would be necessary to extract the two articles pressed into service by the learned Advocates namely Article 22 and 28 and they are extracted herein below which reads as under: Description of suit Period of Time from which limitation period begins to run 22. For money deposited under an When the demand if Agreement that it shall be payable Three years made On demand, including money of a Customer in the hands of his banker So payable. 28. On a single bond, where a day Is specified for payment -do- The day so specified 23. Sri. D.R. Rajashekharappa, learned Counsel appearing for the appellant would contend that the suit of the plaintiff is based on two documents namely receipt dated 06.09.1992 (Ex. P4) and rent bond (Ex.P5). These two documents are contemporaneous documents namely they have come into existence on the same day between the same parties in respect of the same transaction pertaining to the same premises. As such this Court is inclined to hold that these two documents are complementary and supplementary to each other and are contemporaneous in nature having come into existence on the same day. Sri Rajashekarappa would contend that receipt Ex.P4 and the rent bond Ex.P.5 when read in conjunction with each other would reveal that the amount of security deposit received by the defendant would become payable on the day specified in the document. He has also contended that Article 28 of the Limitation Act gets attracted to the rent bond which is marked as Ex.P.5. 24. Per contra Sri.Ariga has contended that it is a money deposited under an agreement and the said agreement would fall within Article 22. A transaction of this nature would fall within Article 22 or Article 28, was the subject matter of consideration by various Courts including the Honorable Apex Court. The earliest judgment on this issue was in the case of Suleman Haji vs. Haji Abdulla reported in AIR 1940 PC 132. A transaction of this nature would fall within Article 22 or Article 28, was the subject matter of consideration by various Courts including the Honorable Apex Court. The earliest judgment on this issue was in the case of Suleman Haji vs. Haji Abdulla reported in AIR 1940 PC 132. It was held in the said judgment that transaction of the nature as stated therein would fall within the category of deposit. It is held by their Lordships as follows: “A loan and a deposit payable on demand are not mutually exclusive. A deposit of money if not confined to a bailment of specified currency to be returned in specie. As in the case of a deposit with a banker it does not necessarily involve the creation of a trust, but may involve only the creation of the relation of debtor and creditor, a loan under conditions. The distinction which is perhaps the most obvious is that the deposit not for a fixed term does not impose an immediate obligation on the depositee to seek out the depositor and repay him. He is to keep the money till asked for it. A demand by the depositor would therefore be a normal condition of the obligation of the depositee to repay.” (Emphasis supplied by me) 25. In the said judgment the question that arose for consideration was whether the transaction in question was a loan transaction or was it a deposit payable on demand and the test enumerated therein would conclude the fact in the said case that the transaction was held to be a one of deposit and not loan transaction. 26. In the case of M/s Sharda Talkies (Firm) and another vs. Smt. Madhulata Vyas and others reported in AIR 1996 MP 68 following the judgment of Privy Council referred to above it has been held that where the plaintiff was not a money lender on the date of initial deposit the transaction in question in the said case was held to be of deposit and not a loan. At para 18 it has been held as follows: “18. Once it is held that the transaction between the parties is a transaction of a loan, then Article 19 of the Limitation Act would be applicable, which say that the limitation would be three years from the date when the loan is taken. At para 18 it has been held as follows: “18. Once it is held that the transaction between the parties is a transaction of a loan, then Article 19 of the Limitation Act would be applicable, which say that the limitation would be three years from the date when the loan is taken. In the instant case, we have held that it is not a transaction of loan. Therefore, Article 22 of the Limitation Act, 1963, would be applicable. For money deposited under an agreement that it shall be payable on demand, limitation is three years from the date when the demand is made. In the instant case, admittedly the demand was made by a registered notice, dated 2-12-1973. Therefore, the suit would be within limitation and by any stretch of imagination it cannot be held that the suit is barred by limitation.” 27. The Court in the case of V. Roja Srinivasulu vs. M/s Universal Corporation reported in ILR 1990 Kar 1697, while considering the starting point of limitation in case of money in deposit came to a conclusion that Article 22 could be application and Limitation would begun to run from the date of demand made. It is held as follows: “Para 3A, if the money is deposited for a period certain it becomes payable only on the expiry of the period and no demand can be made during the period of deposit. On the expiry of the period of maturity the amount in deposit does not case to be one of deposit and become a loan or a debt. If money is paid into a Bank or financial institution as deposit the same could be recovered against demand…. Limitation does not begin to run until the demand is made.” (Emphasis supplied by me) 28. The Honorable Madras High Court in the case of Abdul Hamid Sahib and others vs. Rahma Bi reported in AIR 1965 Madras 427 has held that where the wife paid the amount to the husband to use it as a capital in his business, concluded that it was a transaction of deposit and not a transaction of loan. It has been held to the following effect: “The terms “loans” and “deposits” are not mutually exclusive terms. There are a number of common features between the two. It has been held to the following effect: “The terms “loans” and “deposits” are not mutually exclusive terms. There are a number of common features between the two. In a sense a deposit is also a loan with this difference that it is a loan with something more. Both are debts repayable. But, the question as to when the repayment is to be made furnishes the real point of distinction between the two concepts. A loan is repayable the minute it is incurred. But this is not so with a deposit. Either the repayment will depend upon the maturity date fixed therefor or the terms of the agreement relating to the demand, on making of which the deposit will become repayable. In other words, unlike a loan there is no immediate obligation to repay in the case of a deposit. That is the essence of the distinction between a loan and a deposit.” 29. In view of the principles laid down by Apex Court and other High Courts as enumerated hereinabove and other High Courts as enumerated hereinabove contention of Mr. Rajashekarappa that bond namely Ex.P5 is to be construed as coming within the ambit of Article 28 when examined, it is found that in the instant case the plaintiff has not rested his claim only on the basis of Ex.P5 alone which according to the learned Counsel for appellant is referable as bond since the nomenclature described in the document is as “rent bond”. He has also contended that the receipt is to be taken as bond and Article 28 is to be applied. When the said contention is examined into with reference to Article28 it is found therein the words that are used in Article 28 is “on a single bond” which pre-supposes that there should be one single bond in existence between the parties for a plaintiff to claim the amount from the defendant under the said bond. As referred to supra the plaintiff has not raised his claim only on either Ex.P4 alone or Ex.P5 alone. It is the claim of the plaintiff that under Ex.P4 receipt of the amount has been acknowledged by the defendant and the defendant in the instant case has filed “cryptic” written statement and has not traversed plaint averments in toto. The defendant does not dispute by denying the transaction in question including the receipt of the amount as security deposit. It is the claim of the plaintiff that under Ex.P4 receipt of the amount has been acknowledged by the defendant and the defendant in the instant case has filed “cryptic” written statement and has not traversed plaint averments in toto. The defendant does not dispute by denying the transaction in question including the receipt of the amount as security deposit. But on the other hand as admitted in the written statement which is extracted herein above he admits that the transaction and also admits payment was received towards security deposit. The defendant also admits that these two documents have come into existence on the same day and conjoint reading of two documents would go to show that in Ex.P4 there is reference to Ex.P5 and vice versa. In view of there being two documents in existence and the said documents having come into existence not on account of any loan transaction entered into between the parties and this Court having held while answering point No.1 that the transaction in question is not that of a loan transaction, it cannot be held that Article 28 would be attracted to the facts and circumstances of the case to hold that the limitation would start from the date specified in the bond as contended by Mr. Rajashekarappa. 30. In view of the same this Court is not inclined to accept the submission made by the learned Counsel for appellant. The question in a given case where it is a debt or it is a deposit or a loan will be one on fact which will have to be decided on the facts and circumstances of each case. The use of the term “loan” or “deposit” may not by itself be conclusive proof of the transaction and it is the attendant circumstances in which transaction has taken place and as to how the parties to the said transaction were at ad idem is the one which requires to be considered and which form the basis for Limitation. 31. The facts in the instance case when scrutinized in this background would reveal that defendant contended that Ex.P.1 namely the Cheque in question came to be issued for a different transaction. 31. The facts in the instance case when scrutinized in this background would reveal that defendant contended that Ex.P.1 namely the Cheque in question came to be issued for a different transaction. If it were to be so for what transaction the said cheque Ex.P1 came to be issued and for what purpose it came to be issued is neither disclosed in the written statement nor in the evidence. The defendant having received the amount as security deposit has made an attempt to refuse the legitimate claim of the plaintiff by rising a false plea which the trail court has not rightly countenanced. In fact defendant in the written statement has contended at para 2 that plaintiff was continuing in possession will the year 1996 and at para 3 the defendant claims that possession of the leased premises was handed over during March, 1995. Thus, it can be inferred that the defendant has been taking inconsistent plea and evading to pay legitimate amount which the plaintiff is entitled to. 32. In fact, the defendant in his cross-examination admits that except the transaction of leasing the premises to the plaintiff, there was no other transaction between the defendant and the plaintiff. In the cross examination dated 26.03.2007, it is admitted by the defendant to the following effect: 33. In view of the categorical admission by the defendant that he had received the amount as security deposit in respect of the premises leased by him to the plaintiff. I am of the considered view that Article 22 of the Limitation Act would be applicable and not Article 28 of the Limitation Act. Accordingly, point No.2 is answered holding that Article 22 of the Limitation Act, 1963 is applicable to the suit in question and not Article 28 of the Limitation Act. 34. Re Point No.3: Sri Rajashekarappa, learned counsel appearing for the appellant would contend that the Trail Court having come to a conclusion that the plaintiff was entitled to the suit claim with interest and having given a finding on issue No. (ii) that plaintiff was entitled to interest at the rate of 9% pa, on the security deposit, ought not to have decreed the suit for Rs. 1,37,175/- which also included the interest from 1.1.1993 till 31-7-1998 calculated by plaintiff @ 15% p.a. A perusal of the judgment and decree at paragraph No.13 would reveal that the contention of the learned counsel for the appellant deserves to be accepted. 35. In the suit claim, the plaintiffs have claimed interest from 1.1.1993 till 31.07.1998 at 15% pa. on Rs. 61,875/-. The Trial Court while giving a finding on issue No.2, has held that as against the claim for plaintiff awarding interest at 15% pa., it has granted interest at 9% pa, taking into consideration the interest charged by Nationalised Banks at relevant point of time. In a suit for recovery of money, the interest that can be awarded would be up to the date of the suit as agreed to between the parties (subject to the contract of parties) and from the date of suit till the date of decree and from the date of decree till realization. Admittedly, in the instant case, plaintiff has included the interest from 1.1.1993 till 31.7.1998 at 15% pa, on suit claim of Rs. 75,000/- and ahs claimed interest at Rs. 61,875/-. In fact, Trial Court has not specifically rejected the claim but the claim of the plaintiff has not been accepted and thus it has to be held to have been negatived and as seen from the judgment of the Trial Court. In view of the express finding given by granting interest at 9% p.a. it has to be held that Trial Court has refused to grant interest as claimed by the plaintiff. If it were to be so, it is surprising as to how the Trail Court could have decreed the suit as prayed for in a sum of Rs. 1,37,175/-which included interest @ 15% p.a for the period above referred to . The said grant of interest at Rs. 61,875/- from 1-1-1993 till 31-7-1998 at 15% p.a accordingly cannot be sustained. Hence, it is hereby set aside. 36. However, considering the nature of transaction between the parties and the recalcitrant attitude adopted by the defendant to evade to pay the legitimate amount due to the plaintiff, it would be just and proper to award interest as granted by the Trial Court which is at the rate of 9% pa. for the following period: “On the sum of Rs. However, considering the nature of transaction between the parties and the recalcitrant attitude adopted by the defendant to evade to pay the legitimate amount due to the plaintiff, it would be just and proper to award interest as granted by the Trial Court which is at the rate of 9% pa. for the following period: “On the sum of Rs. 75,000/- from the date of issuance of cheque at Ex.P-1 i.e. from 22.2.1996 till the date of realization.” 37. Though Mr. Rajashekarappa would contend that interest from the date of decree should not, exceed 6% pa. This Court is not inclined to accept the said submission for the following reasons: (i) Under proviso to Sec.34, Courts are empowered to award interest which may exceed 6% pa. but shall not exceed the contractual rate of interest or where there is not contractual rate at which the money advanced by the Nationalized Bank in relation to commercial transaction. The transaction in question is to be termed as commercial in nature. (ii) The defendant in his reply notice at Ex.P-3 while denying the claim of the plaintiff, has sought for payment of amount of Rs. 1,26,000/- with interest at 16% pa. (iii) In the pleadings viz., in the written statement and in the examination in chief, defendant took up a plea that cheque in question was issued in respect of a different transaction, but in the cross examination dated 26-3-2007, very fairly admitted that there was no other transaction between the plaintiff and the defendant, other than the leasing of the premises. When such being the factual matrix, it was incumbent upon the defendant to refund the security deposit immediately on plaintiff vacating the premises or atleast when the demand was raised and honoured his commitment by ensuring the encashment of the cheque in question Ex.P-1. 38. On account of these reasons, this court is not inclined to accept the contention of the learned counsel appearing for the appellant that interest decreed in this appeal should be restricted to 6% p.a. Accordingly, Point No.3 formed hereinabove is held in favour of the appellant and against the respondent partly. 39. Re. Point No.4: In view of the discussions made herein above, judgment and decree passed by the Prl. Civil Judge (Sr. 39. Re. Point No.4: In view of the discussions made herein above, judgment and decree passed by the Prl. Civil Judge (Sr. Dn) Mangalore in OS No.1440/2000 dated 7—6-2004 is required to be modified to the extent of decreeing the suit for the claim of interest at 15% pa., and it is modified by decreeing the suit for Rs.75,000/- with interest at 9% p.a. from the date of issuance of cheque Ex.P-1 dated 22-3-1996 till date of payment or realization. 40. Re. Point No.5: In view of the discussions made hereinabove, following order is passed: ORDER (i) Appeal is allowed in part. (ii) Judgment and decree passed in OS No.144/2000 dated 7-6-2004 passed by the Prl. Civil Judge (Sr. Dn.), Mangalore is modified/substituted by decreeing the suit for Rs. 75,300/- with interest payable at 9% p.a from 22-3-1996 till the date of payment or realization whichever is earlier. (iii) In the peculiar circumstances of the case no order as to costs. (iv) Registry to draw the decree accordingly.