A transaction between parties is a deposit and not a loan if the depositee receives money at the instance of the depositor, without there being a requirement of the person receiving the same, without applying the test of whether the depositee is in need of money.

( 1 ) THE defendants Nos. 1 and 3, being aggrieved by the judgment and decree, dated 6-3-1984 passed in Civil Suit No. 94b of 1976 by the First Additional Judge to the Court of District Judge, Raipur, decreeing the plaintiffs' suit for a sum of Rs. 1,03,413. 88 with costs and interest thereon at 6 per cent per annum from the date of the suit till realisation, have preferred this appeal.

( 2 ) THE original plaintiff Mohanlal Vyas, since deceased, father of plaintiffs Nos. 2 to 6 and husband of plaintiff No. 1, was a businessman and a man of means. Defendant No. 1 is a firm carrying on a cinema business in the name and styles of M/s. Sharda Talkies at Raipur. The firm 'm/s. Sharda Talkies' (hereinafter referred to as the 'firm' for the sake of brevity) was managed by the deceased Shyam Charan, now represented by the legal representatives, respondents Nos. 7 to 9 and appellant No. 2/defendant No. 3, namely, Lalit Kumar Tiwari. As the original plaintiff and defendant No. 2 died during the pendency of the suit, their legal representatives were substitued in their place. The plaintiff Mohanlal Vyas, according to his allegations in the plaint, made deposit with defendant No. 1 in the year 1948-49, of a sum of Rs. 10,000/- under an oral agreement that the defendant shall pay interest at the rate of Rs. 9/- per cent per annum, which was to be credited in the account books of defendant No. 1 with yearly intervals. Accordingly to the plaintiffs, the deceased, Sharda Charan Tiwari had supplied the account of the said talkies from the year 1960-61 till 1965-66 and had acknowledged the balance of Rupees 1,01,054. 96. According to the plaintiffs, defendant No. 3, representing to be a partner of the firm, acknowledge the amount on 17-9-1968 for the Diwali accounting year 1966-67 and also acknowledged the balance for the Diwali accounting year 1967-68. The plaintiff further stated that the defendants applied copies of extracts of the accounts for the Diwali years 1958-59, 1960-61 to 1967-68. The plaintiffs further pleaded that defendant No. 3, being a partner of the firm, acknowledged the balance of Rs. 1,27,979. 88 on 6-7-1970. This acknowledgment was inclusive of the interest accrued amounting to Rs. 10,566. 00. ( 3 ) THE plaintiffs further pleaded that the defendants were maintaining the accounts regularly and the defendants credited the amounts paid by Mohanlal Vyas. As and when the amount was withdrawn by Mohanlal Vyas, the accounts were debited. Any interest accrued on the said deposit was credited in favour of Mohanlal Vyas at the end of the year and after the close of the year, the accounts were settled by adjusting the entries and striking the balance which was carried forward to the next year. According to the plaintiffs, such settlements were made on 1-2-1961, 21-2-1968, 17-9-1968 and 6-7-1970. The statements prepared by the defendants were signed by the deceased Shyam Charan Tiwari for the years 1960-61 to 1965-66. Defendant No. 3 Lalit Kumar signed the statements for the years 1966-67, 1967-68, and 1968-69. All these statements were signed by defendant No. 3 as a partner of the firm M/s. Sharda Talkies. According to the plaintiffs, the statements of accounts were not mere acknowledgments of liability but were accounts stated, which furnished a cause of action in favour of the plaintiffs. The plaintiff Mohanlal Vyas demanded balance amount by his registered notice dated 2-12-1973, but the defendants did not care to reply, nor did they pay the amount. The plaintiffs, therefore, filed the suit for the recovery of Rupees 1,03,413. 88.

( 4 ) THE plaintiffs submitted that the cause of action accrued in his favour on 17-9-1968 and 6-7-1970 when the defendants acknowledged the balance and promised to pay. The plaintiffs also stated that various payments were made to the plaintiffs on 21-1-1970, 13- 4-1970, 22-9-1970 and 21-12-1970, under a cheque. As the last payment was made on 21-12-1970 and some amount was paid in cash o