Skip to content


Vithaldas Bhavadas Vs. Yellosa Laxmansa - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal (B) No. 150 of 1956
Judge
Reported inAIR1960Kant238; AIR1960Mys238
ActsLimitation Act - Schedule - Article 48, 61, 62, 83, 89 and 90, 95, 96
AppellantVithaldas Bhavadas
RespondentYellosa Laxmansa
Excerpt:
limitation - misconduct - articles 61 and 90 of limitation act - whether articles 61 or 90 can be applicable in present case - through facts and circumstances court concluded that article 61 would be applicable - if assuming article 61 not applicable then only article 90 would be applied - even if article 90 applies to suit would not be barred for it cannot be said that plaintiff came to know of misconduct of defendant on date when he received notice - thus it should be held that plaintiff came to know of said misconduct when it was decided by court that he had not returned money back to said firm - appeal allowed. - indian succession act, 1925. section 2(h): [n. kumar,j] proof of will legal requirements duty of the court held, under the act, the will to be valid, should be reduced..........contended on behalf of the appellant that art. 90 was not applicable to the present case but the article applicable would be art. 61 of the limitation act. in support of that contention reliance was placed on a decision of the high court of calcutta in torab ali khan v. nilruttun lal, ilr 13 cal 155, which was subsequently followed in a decision of the lahore high court in des raj v. lachhi ram air 1933 lab 404.it was further contended before me on behalf of the appellant that even if art. 90 applies, even then the plaintiff for the first time came to know of the misconduct of the defendant when it was found as a fact by the trial court that the defendant had not returned the money to the firm of ramnathsa dharmsa shidling.(5) as against the said contentions of the learned advocate for.....
Judgment:

(1) The Appellant before me was the plaintiff in the suit. The suit instituted by him was for the recovery of Rs. 1755-9-6 and costs paid by him for the defendant. In the plaint filed by the plaintiff it is stated that the plaintiff had to file this suit against the defendant to recover the said sum which the plaintiff had to pay on behalf of the defendant. This is the cause of action of which the plaintiff's case in the suit is founded. The facts leading up to the filing of this suit may be shortly stated as follows :

(2) On 16-2-50 a firm known as Ramnathsa Dharmsa sidling filed a civil suit being C. S. No. 80/1950 against the present plaintiff and the defendant alleging that the defendant as plaintiff's clerk had borrowed Rs. 1,000/- on 2-7-1949 for an on behalf of the plaintiff. In that suit the present plaintiff was Defendant No. 1 and the present defendant was defendant No. 2. The case of the present plaintiff in that case was that the defendant had no authority to receive the money on his behalf and the said money was not actually paid to the plaintiff.

The case of the present defendant in the said suit was that he had borrowed the money for and on behalf of the plaintiff, paid it to the plaintiff and the plaintiff returned the money to him and he thereafter returned the money to Ramnathsa Dharmsa Shidling. The Court held that the money was borrowed by the present defendant for and on behalf of the present plaintiff and the defendant was authorised to borrow such money. The Court further held that the money was returned back by the present defendant to Ramnathsa Dharmsa Shidling.

On this view, the trial Court passed a decree against the present plaintiff and dismissed the suit against the present defendant. The appeal filed by the plaintiff against the said decision was also dismissed. On 19-3-51 the plaintiff had to pay the decretal amount with costs amounting to Rs. 1,755-9-6. Thereafter on 14-8-1952 this suit was filed by the plaintiff against the defendant and, as I have mentioned, the cause of action on which it is founded, as is stated in the plaint, was that the suit was against the defendant to recover the said sum which the plaintiff had to pay on behalf of the defendant.

(3) The Courts below held that the defendant was an agent of the plaintiff, but the money which was borrowed for the plaintiff was not paid to him. Both the Courts, however, dismissed the suit on the ground of limitation. The Article which was held to be applicable to the present case by the said Courts was Art. 90 which is as follows :

Article No. Description of suit. Period of limitation. Time from which Period begins to run

90 principals against agents for neglect or misconduct. Three years. When the neglect or misconduct becomes known to the plaintiff.

Both the courts below held that the misconduct of the defendant came to be known to the plaintiff at least on the date when the firm Ramnathsa Dharmsa sidling gave notice to the plaintiff and the defendant claiming the said amount. Both the Courts held that on that date at least which was three years prior to the date of the suit, the plaintiff must have come to know of the misconduct of the defendant. The present appeal has been filed against the said decision of the lower appellate Court.

(4) The only question which has been agitated before me in this appeal is the question of limitation. It was contended on behalf of the Appellant that Art. 90 was not applicable to the present case but the Article applicable would be Art. 61 of the Limitation Act. In support of that contention reliance was placed on a decision of the High Court of Calcutta in Torab Ali Khan v. Nilruttun Lal, ILR 13 Cal 155, which was subsequently followed in a decision of the Lahore High Court in Des Raj v. Lachhi Ram AIR 1933 Lab 404.

It was further contended before me on behalf of the Appellant that even if Art. 90 applies, even then the plaintiff for the first time came to know of the misconduct of the defendant when it was found as a fact by the trial Court that the defendant had not returned the money to the firm of Ramnathsa Dharmsa Shidling.

(5) As against the said contentions of the learned Advocate for the Appellant, the learned Advocate for the Respondent urged before me that the proper Article applicable to present case would be Art. 90 and the lower appellate Court rightly came to the conclusion that the plaintiff must have come to know of the misconduct of the defendant at least on the day when the firm of Ramnathsa Dharmsa sidling gave notice to the plaintiff.

The learned Advocate for the Respondent further contended before me that Art. 61 of the Limitation Act is not at all applicable to present case. The said Article applies only to a case, which is covered by section 69 of the Contract Act. In support of that contention he relied on the decision of the Madras High Court in Rungaswami Aiyangar v. Srinivasa Aiyangar, 21 Mad LJ 453 and on a decision of the Allahabad High Court in Ramlal v. Ghulam Husain, ILR 29 All 579.

In the alternative the learned Advocate contended that either Art. 48 or Art. 89 of the Limitation Act would be applicable to the present case and the plaintiff's claim, under the said Articles, is also barred by the law of limitation. The learned Advocate finally urged before me that Art. 62 would, in any event, apply to the present case and the case is clearly barred by limitation even under the said Article. I shall have to examine these contentions urged on behalf of the respective parties before me.

(6) I shall first take up the question as to whether Art. 90 would apply to the present case. I have already set out the said Article. That Article applies to cases filed by principal against his agent which are not covered by any other Article of the Limitation Act. In other words it is a residuary Article for suits by principal against his agent. If, therefore, there be any specific Article applicable to a suit filed by the principal against his agent, then Art. 90 would not apply to such a case.

It should be also noted that this Article relates to suits by principals against agents for neglect or misconduct. The present suit, in my opinion, cannot be said to be a suit filed against an agent for neglect or misconduct. I have already mentioned that the suit, as framed, was a suit for the recovery of money paid by the plaintiff on behalf of the defendant. Whether or not Art. 61 of the Limitation Act would apply to this case is a question which I shall consider hereafter.

But the suit is not covered by Art. 90 of the Limitation Act. Even if I hold that the present suit is covered by Art. 90 of the Limitation Act. I am unable to hold that the misconduct became known to the plaintiff at least on the date when he received notice from the firm Ramnathsa Dnarmsa Shidling. It should be remembered that the case of the present defendant in that suit was that he had paid the money back to the firm of Ramnathsa Dharmsa Shidling. The case of the present plaintiff was that he had nothing to do with the said money and the defendant was not authorised to borrow on his behalf.

That being the respective cases of the parties in the said earlier suit, it cannot be said that the misconduct of the defendant, which would give the plaintiff a cause of action against him, became known to the plaintiff till it was established in the said suit that the defendant had not in fact paid back the money to the firm Ramnathsa Dharmsa Shidling. If in fact, the defendant had returned the money to the said firm, then the plaintiff would have had no cause of action against the defendant, which would entitle him to file a suit against the defendant.

It, therefore, follows that the misconduct of the defendant, even if Art. 90 be held to be applicable, became known to the plaintiff on 15-2-1951 when the decree in the said suit was passed. This suit being instituted within three years from that date is not barred by limitation.

(7) I shall now take up the question as to whether Art. 48 or Art. 89 of the Limitation Act would be applicable to the present case. Art. 48 provides as follows :

Description of suit. Period of limitation Time from which period begins to run

48. For specific moveable property lost, or acquired by theft, or dishonest misappropriation or conversion, or for compensation for wrong- fully taking or detaining the same. Three years When the person having the right to the possession of the possession it is. property first learns in whose

This Article, in my opinion, cannot be applicable to the present case, because, the suit instituted is not a suit for the recovery of moveable property acquired by dishonest misappropriation or conversion or compensation for wrongfully taking or detaining the same. The basis of the suit is that the plaintiff had to pay the money which the defendant was liable to pay the money which the defendant was liable to pay. Apart from that, the period of limitation, according to this Article would start from the date when the plaintiff first learns in whose possession it is.

This period in the present case, even if this Article applies, cannot be earlier than the date of the decree. Before that date it could not have been known to the plaintiff that the money was still in the possession of the defendant, the defendant's case being that he had returned the money to the firm of Ramnathsa Dharmsa Shidling. That being so, I am of the opinion that Art. 48 of the Limitation Act does not apply to the present case.

(8) As for Art. 89 on which the learned Advocate for the Respondent also relied, I am of the opinion that the same is equally inapplicable to the present case. The said Article reads as follows :

Description of suit. Period of limitation. Time from which period begins to run.

89. By a principal against his agent for moveable property received by the later and not accounted for. Three years When the account is, during the continuance of the agency demanded and refused or where no such demand is made, when The agency terminates.

In my opinion, this Article is not applicable to the present case, because, the present suit is not a suit by the principal against his agent for moveable property received for the latter and not accounted for. The present suit is a suit instituted for the recovery of money which the plaintiff had to pay on behalf of the defendant. That being so, this Article is also not applicable to the present case.

(9) I am left, therefore, with two Articles, that is, Articles 61 and 62 of the Limitation Act. I shall first take up Art. 61 which provides as follows :

Description of suit to run. Period of limitation. Time from which period begins

61. For money payable to the plaintiff for money paid for the defendant. Three years When the money is paid.

The learned advocate for the Appellant strongly relied on this article and contended, that the present case is covered by the said Article. In support of that contention he relied on two decisions, one of the Calcutta High Court and another of the Lahore High Court, to which I have already referred.

It should be mentioned that the plaintiff, as it appears from the allegations made in the plaint, founded his cause of action on the fact that the money which he claimed was the money which the plaintiff had to pay on behalf of the defendant. The decision in the Calcutta case and the decision in the Lahore case, which followed it, seem to support the present contention of the learned Advocate for the Appellate.

(10) In the Calcutta case, ILR 13 Cal 155, the facts were as follows: On the 26th of January 1871, the defendant Torab Ali opened a banking account with the plaintiffs firm in the name of our Asgar Hossein; that on the 29th of May 1873. Torab Ali drew out the amount of the balance at the credit of Asgar Ali, and made it over to the defendant Mussamut Bhikhan; and that, on the 30th January 1878, a decree was made against the plaintiffs for refund of this amount at the suit of the heirs of Asgar Hossein.

Having had to pay the decretal amount the plaintiffs sued for the sum which it had to pay with interest. This suit was instituted on 5th February 1884, the plaintiffs alleging that their causes of action accrued on the day when they had to pay the sum of Rs. 930-0-6. The question arose as to whether or not the suit was barred by limitation. In dealing with that question their Lordships observed as follows :

'There does not appear to be any article which applies precisely to this case; the article which appears most applicable is, we think, Art. 61, which provides, a period of three years' limitation from the date when the money is paid, for a suit to recover money payable to the plaintiff's for money paid for the defendant. We do not think that either Art. 95 or Art. 96 apply. The suit is not to obtain relief on the ground of fraud or mistake but to recover a specified sum of money which the plaintiffs have had to pay in consequence of the act of the defendant, Torab Ali. Until that money was paid, the plaintiffs did not suffer any loss.

The mere demand by the heirs of Asgar Hossein did not give the plaintiffs a cause of action against the defendants, nor did the institution of the suit. The demand might have been abandoned, or the suit might have been dismissed. And even supposing that the plaintiffs had admitted their liability to the heirs, they would not have suffered any loss until they actually paid the amount claimed.'

The position in the present case, in my opinion, is similar to that of the said case. Article 61 which was held to be applicable to the said case, should also be held to be applicable to the present case. There is no other Article which, as I can think of, would apply to the present case. In this case also the suit of the plaintiff was to recover a specified sum of money which the plaintiff had to pay in consequence of the act of the defendant, and as held in that Calcutta decision until that money was paid the plaintiff did not suffer any loss and could not institute the present suit.

(11) This decision has been followed by the High Court of Lahore in the case reported in AIR 1933 Lab 404. In this case a firm named Charanji Lal Kishori Lal had brought a suit against the plaintiffs and defendants on the allegation that a 'kotha' of wheat was sold to the plaintiff's and that the defendants had stood surely for the price. The suit was decreed against the plaintiffs only on the finding that Charanji Lal Kishori Lal had sold the kotha to the said plaintiffs and that the said defendants were not sureties.

The learned Subordinate Judge who decided the previous suit while granting the decree against the plaintiffs remarked that they could file a separate suit against the defendants if the kotha was sold to these defendants. The plaintiffs thereafter instituted the present suit for recovery of Rs. 4,817-12-3, as the price of the kotha from them, together with interest.

The plea of limitation was also raised in this suit. Art. 83 was put forth as the Article which governed the said case and it was contended that the suit was time-barred. Their Lordships repelled the contention that Article 83 is applicable to the said case and held that the said Article was in applicable as the suit was not based on any contract of indemnity whether express or implied. Their Lordships produced to observe as follows :

'Probably the article applicable to a suit of the present type will be Art. 61, Sch. 1 Limitation Act. But it seems to me that the suit is premature and must fail on this ground. The plaintiffs case their claim merely on the liability incurred by them as a consequence of the decree passed in the previous suit.

But the first question for consideration is whether the mere passing of a decree gives them any course of action at all. In Putti Narayanamurti v. Marimuthu, ILR 26 Mad 322, it was held in somewhat similar circumstances that no cause of action arose until actual payment. To the same effect are the decisions in ILR 13 Cal 155 and Fitzgerald v. Musa, 31 Pun Re 1904.'

This case also in my opinion helps the appellant in his present contention.

(12) I shall now deal with the two decisions cited by the learned Advocate for the Respondent in support of his contention that Art. 61 of the Limitation Act cannot apply to the present case. The case reported in 21 Mad LJ 453, on which the learned Advocate for the Respondent relies, does not support the view urged by him.

In that case, the plaintiff gave a certain sum of money to the defendant and asked him to make a payment of Rs. 50/- to one Abu Baker to whom the plaintiff owned money. The defendant whose position was that of an agent defaulted to make the payment. Abu Baker sued the plaintiff and obtained a decree. Their Lordships held that :

'It is perfectly clear that on the date of the decree, at all events, the plaintiff knew that his agent, the defendant, was guilty of misconduct in not making the payment which he had required him to make. The Subordinate Judge calculates the period of limitation from the date of payment by the plaintiff to Abu Kaber. I cannot see how that furnishes the starting point for limitation.'

It would appear from the above observations that the plaintiff's cause of action was held to arise when he came to know that the defendant was guilty of misconduct. As I have already mentioned, until it was established by the decree passed that the defendant had not returned the money back to the firm of Ramnathsa Dharmsa Shidling, the plaintiff would have no cause of action to proceed against the defendant on the ground on the ground of defendant's misconduct.

(13) The other decision in ILR 29 All 579 on which the learned Advocate for the Respondent relied, in my opinion, is distinguishable from the present case. What happened in that case was as follows : A gave Rs. 300/- in order that it might be delivered to C who had, a few days previously, executed a bond guaranteeing the repayment of the loan by C. On suit by A against B and c which was decided on 15th January 1901 it was discovered that B had never paid any money to C.

On the 1st of December 1904 A sued B to recover the Rs. 300/- paid to him as above described. Held that the rule of limitation applicable was that provided by Art. 48 if not by Art. 90 and the suit was time-barred. It is to be seen from the facts stated above that the suit filed was one for the recovery of money which had been entrusted by the plaintiff with the defendant for a certain purpose but which had been misappropriated by the defendant.

That is not the position in this case. It should, however, be mentioned that their Lordships expressed a doubt in that case as to whether Art. 48 at all applies to a suit to recover money as well.

It should also be noted that their Lordships further held that if Art. 48 does not apply, the present suit might be held to fall within Art. 90 which covers a case of suits by principals against agents for neglect or misconduct becomes known to the plaintiff. I do not think that this case in any way helps the learned Advocate for the Respondent in his present contention. In my opinion, the Article applicable to the present case would be Art. 61 of the Limitation Act and time would run from the date when the money was actually paid.

(14) The only other Article which has to be considered is Art. 62 of the Limitation Act which reads as follows :

Description of suit. to run. Period of limitation. Time from which period begins

62. 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 received.

The learned Advocates for the Respondent contended before me that this Article is clearly applicable to the present case. I am unable to accept this contention. The suit, as already mentioned by me, was not instituted by the plaintiff for the recovery of money which was received by the defendant for the plaintiff's use. The suit was for the recovery of the money which the plaintiff had to pay owing to the misconduct of the defendant. This Article, in my opinion, is not applicable to the present case.

(15) On a proper analysis of all the Articles which may be considered on the present question I have come to the conclusion that Art. 61 of the Limitation Act would be applicable to the present case. In my opinion, no other Article can be held to be applicable to the present case. If, assuming Art. 61 is held to be inapplicable to the present case, then the only Article which can apply would be the residuary Article, that is, Art. 90.

Even if Art. 90 applies the suit would not be barred, for, it cannot be said that the plaintiff came to know of the misconduct of the defendant on the date when he received notice from Ramnathasa Dharmsa Shidling. On the facts and circumstances of this case it should be held that he came to know of the said misconduct when it was decided by the court that he had not returned the money back to the said firm.

(16) The result, therefore, is that this appeal is allowed. The decrees passed by the lower Courts are set aside and on the findings reached by the said Courts there will be a decree in favour of the plaintiff with costs only of this appeal.

(17) Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //