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Tota Ram Vs. Kunwar Zalim Singh - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1940All69
AppellantTota Ram
RespondentKunwar Zalim Singh
Excerpt:
- - the first item challenged by learned counsel is an item described in the commissioner's report, as well as in the judgment of the court below, as item 18 'about miscellaneous deposit of tenants, rs. there being no explanation forthcoming on behalf of the defendant, the decision of the court below on this point is clearly right. 3. the next item questioned is what is described as item 8 in the commissioner's report as well as in the judgment of the court below. the decision of the court below is thus clearly right. 35 of our paper book). the point raised by learned counsel is that the commissioner as well as the learned civil judge have erred in not deducting the occupancy rent from what has been described as 'sub-tenancy rent. 4. the third item that has been dealt with by the..........appeal against the final decree and has raised four points, three being with regard to specific items allowed by the court below against the recommendation of the commissioner and the fourth being with regard to the interest allowed. the first item challenged by learned counsel is an item described in the commissioner's report, as well as in the judgment of the court below, as item 18 'about miscellaneous deposit of tenants, rs. 2265-8-0.' the commissioner had reported against the plaintiff's claim under this head, but the court below accepting the objection of the plaintiff, has allowed a portion of this amount, namely rs. 2056-8-0. the claim was based on a document described as ex. 274. the appellant has not had this paper translated and printed, but the contents of this document.....
Judgment:

Verma, J.

1. The suit which has given rise to these appeals by the defendant was one for accounts by a principal against his agent and for the recovery of the amount found due on the accounts being rendered. The preliminary decree was passed on 19th January 1933 and the appellant was ordered to render accounts to the plaintiff-respondent from 11th September 1915 to 14th August 1930. A commissioner was appointed and, after going through the accounts and hearing the parties at length, he reported to the Court that a certain sum of money was recoverable by the plaintiff from the defendant. He further expressed the view that the defendant was liable to pay interest at the rate of 12 per cent. per annum. Both parties took objections to this report. The learned Civil Judge has accepted some of the objections of the plaintiff and has rejected all the objections of the defendant except in certain minor matters. The result has been that the decree passed by the learned Civil Judge is for an amount larger than the amount found by the commissioner. The defendant has filed two appeals, F.A. No. 455 of 1933 being against the preliminary decree and F.A. No. 530 of 1933 being against the final decree.

2. Learned counsel appearing for the defendant-appellant has confined himself to the appeal against the final decree and has raised four points, three being with regard to specific items allowed by the Court below against the recommendation of the commissioner and the fourth being with regard to the interest allowed. The first item challenged by learned Counsel is an item described in the commissioner's report, as well as in the judgment of the Court below, as item 18 'about miscellaneous deposit of tenants, Rs. 2265-8-0.' The commissioner had reported against the plaintiff's claim under this head, but the Court below accepting the objection of the plaintiff, has allowed a portion of this amount, namely Rs. 2056-8-0. The claim was based on a document described as Ex. 274. The appellant has not had this paper translated and printed, but the contents of this document are to be found in the commissioner's report at page 45 of the paper book. We have also examined the original. When the defendant was confronted with this document he made this statement: 'I do not know whether Ex.... 274... is in my handwriting.' The writing on the face of it appears to be that of the defendant and it was for the defendant to explain this document and the entries to be found in it. Instead of offering any explanation, the defendant chose to take shelter behind the evasive reply that he did not know whether the document was in his handwriting. In our opinion, the Court below was right in inferring that the document was in the defendant's handwriting and in holding that it was for the defendant to explain it. There being no explanation forthcoming on behalf of the defendant, the decision of the Court below on this point is clearly right.

3. The next item questioned is what is described as item 8 in the commissioner's report as well as in the judgment of the Court below. The item is one of Rupees 3385-14-0 and is said to consist of certain sums which were payable by the defendant to the plaintiff on account of certain transactions of leases and sub-leases. Learned counsel has questioned two of the sub-items which go to make up the total of Rupees 3385-14-0. The first one that he has questioned is in connexion with a tenant called Tika Motia and amounts to Rs. 397-8-0. The commissioner had reduced the claim under this head to Rs. 277-8-0 on the ground that the defendant was dismissed in 1337-F and the rent of Rabi 1337 must therefore be deducted 'because it may or may not have been realized.' The Court below has pointed out that the commissioner was wrong in thinking that the defendant was dismissed in 1337. It is common ground that the dismissal took place on 14th August 1930. The fasli year 1337 came to an end on 30th June 1930. The position thus was that either the defendant had realized the rent as it fell due and became payable during the currency of the agricultural year, or by his neglect allowed it to fall into arrear. As soon as the fasli year 1338 began on 1st July 1930, the rent of Rabi 1337 became an arrear. In either case the defendant was liable to pay the amount to the plaintiff. The decision of the Court below is thus clearly right. The second sub-item with regard to which the learned Counsel for the appellant has addressed us is the one which is dealt with by the commissioner under the heading 'No. 3 Beda C. Rs. 876-2-3' (p. 35 of our paper book). The point raised by learned Counsel is that the commissioner as well as the learned Civil Judge have erred in not deducting the occupancy rent from what has been described as 'sub-tenancy rent.' But the commissioner has pointed out that 'the occupancy rent of this khata has been regularly credited up to the end of the lease,' and the learned Judge has agreed 'with that finding of the commissioner. We see no reason to differ from the finding of the Court below on this point.

4. The third item that has been dealt with by the learned Counsel for the defendant appellant is item 9 in the commissioner's report as well as in the judgment of the learned Judge. It is stated to be one of Rs. 2232 'as rent of non-occupancy tenants.' It appears that the appellant in his account books had two columns showing the rents of the tenants, viz. col. 6 and col. 7. The case of the plaintiff was that the rent entered in col. 6 was the real rent and that receipts were issued, suits were filed and siyahas were entered in accordance with the entries in this column, and that the amounts entered by the defendant in col. 7 were fictitious which the defendant had been fraudulently entering in the books to defraud the plaintiff. The defendant, on the other hand, contended that the amounts entered in col. 7 represented the real rent and that those entered in column 6 were fictitious. The explanation given by the defendant as to why he had a column containing fictitious entries at all was that the plaintiff wanted to exchange his villages with another zamindar and with that end in view he got fictitious and exaggerated rents entered and kabuliyats executed in order to show that his property was of larger value than it really was. This explanation was not accepted by the commissioner. But the commissioner adverted to certain circumstances and stated that he was inclined 'to the contention of the defendant.' The learned Judge dealt with the point involved in this item when discussing item 7 and also in his judgment under item 9. Having considered the matter carefully, we have come to the conclusion that the decision of the learned Judge on this point is correct and that the commissioner had erred.

5. The last point urged is as to interest. The first argument is that no interest should have been allowed and reliance has been placed on the decision of their Lordships of the Privy Council in B.N. Ry. Co. Ltd. v. Ruttanji Ramji and on the decision of this Court in Lalman v. Chintamani (1919) 6 AIR All 214. It seems to us however that the contention of the learned Counsel is not well founded. The case before their Lordships of the Privy Council was one in which there was a contract between the parties to the effect that the plaintiffs would execute certain work for the defendants and the defendants would pay for that work. Certain rates for calculating the price of the work had originally been mentioned, but subsequently by consent of parties those rates had been abandoned. No fresh rates were fixed, but the plaintiffs were allowed to carry on the work and to complete it. In these circumstances, their Lordships held in agreement with the Courts below that the amount should be determined on the basis of fair and reasonable rates, and the amount arrived at by the High Court not having been challenged, was accepted by their Lordships. The Courts in India had allowed interest to the plaintiffs on the amount thus arrived at. Their Lordships held that no interest should have been allowed. On the facts found, it was clear that there had been no wrongful detention by the defendant of the amount payable to the plaintiffs. The defendant company had not been guilty of any tortuous act and the case rested entirely on contract. Similarly, in Lalman v. Chintamani (1919) 6 AIR All 214 it was found that the defendant had not been guilty of any improper detention and had actually been acquitted in the criminal proceedings launched by the plaintiff against him. In these circumstances it was held that the plaintiff was not entitled to interest either under Section 73, Contract Act, or under the Interest Act (No. 32 of 1839). The case before us however is entirely different. The defendant has not only been guilty of improper and dishonest detention of the plaintiff's money but has also been guilty of fraud. The law applicable to cases of this character is, in our opinion, correctly summarized in paragraph 423 of Vol. 1 of Edn. 2 of Halsbury's Laws of England. It is as follows:

No interest is payable by an agent in respect of money received by him on his principal's behalf, except under some contract express or implied, or where there has been some default on his part, Such as a dealing with the money in breach of duty, or a failure to pay it over at the principal's request, in which cases interest is payable from the date of default. The agent must also pay interest in all cases of fraud, and on all bribes and secret profits received by him during his agency.

6. In the case before us, several of the circumstances mentioned in this paragraph are present. The Court below was therefore right in allowing interest to the plaintiff. The second point raised by learned Counsel for the appellant with regard to interest is that the rate, namely 12 per cent. per annum, is excessive. The majority of the items involved in the claim however were on account of realizations made from the tenants of the plaintiff's zamindari. If these sums had not been paid by the tenants and had fallen into arrears, the plaintiff would under the revenue law have been entitled to interest at the rate of 12 per cent. per annum. We are therefore not prepared to accept the argument of the learned Counsel with regard to the rate of interest in respect of such items. But there are two items, namely items 1 and 2, which are on account of bricks and lime and the construction of some building. We have come to the conclusion that the interest on the two sums of money found due under these two heads should be reduced to 6 per cent. per annum. The total interest allowed by the Court below on these two items is Rs. 3946-5-0. Calculating the interest at the rate of 6 per cent. per annum, the interest allowable to the plaintiff will come to Rs. 1973-2-6 only. Thus the amount decreed by the Court below on account of interest should be reduced by Rs. 1973-2-6.

7. The result is that we allow First Appeal No. 530 of 1933 in part and in modification of the decree of the Court below grant to the plaintiff a decree for Rs. 22,489-14-9. Future interest on this amount from the date of the decree of the Court below, namely 31st August 1933, shall, as directed by the Court below, be allowed to the plaintiff at the rate of 6 per cent. per annum. Parties shall pay and receive costs through-out in proportion to success and failure. First Appeal No. 455 of 1933 is dismissed with costs.


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