1. This is a second appeal by the plaintiff. Ho brought a suit for that recovery of a sum of Rs. 200 which he said he had deposited with the defendant and added to that a claim that the defendant may be ordered to render the entire account to the plaintiff in respect of the laser's business carried on in shellac by the defendant, and on rendition of amount a further decree for that amount which may be found due to the plaintiff by the defendant may be passed in favour of the plaintiff. The case of the plaintiff as developed in the plaint and in the Court below was that the sum of Rs, 200 was deposited with the defendant on June 10, 1928, and shortly after the plaintiff in structed that defendant to purchase and sell shellac on behalf of the plaintiff keeping Rs. 200 as a sort of margin money. The defence was that the defendant was never the agent of the plaintiff and that Rs. 200 were never deposited by the plaintiff in the defendant's shop. It was said that the aforementioned sum was deposited by one Mata Prasad and certain transactions,-in shellac were entered by the defendant on behalf of Mata Prasad and that accounts were subsequently settled and whatever was due to Mata Prasad was paid by the defendant to Mata Prasad.
2. It appears that during the tendency of the suit the parties were examined by the trial Court and it was admitted by them that on account of the transactions of shellac to which reference has already been made a sum of Rs. 467-12-6 was found due from the defendant and the defendant further said that this sumhacl been paid by him to Mata Prasad. There was a plea of limitation also by the defendant, but the trial Court was of the opinion that the plaintiff's suit was not barred by time, and the payment, if any, made by the defendant to Mata Prasad, in the view which the trial Court took, did not absolve the defendant, because it was the plaintiff with whom the defendant entered into a contract and the payment ought to have been made by the defendant to the plaintiff. On appeal by the defendant the lower Appellate Court did not go into the merits of the case but held that the plaintiff's suit was barred by time. The learned Civil Judge observes :
It appears from the evidence oie Hingu La Plaintiff himself, that sometimes about the end of 1928 he asked the defendant Sarju Prasad not to enter into any further transactions as he was going out of the station. In other words, he clearly gave intimation to Sarju Prasad, respondent, that the agency was terminated, and that no further transaction should be made. If that is so, it is obvious that the right to recover the money due from the defendant, who was the agent of the plaintiff, accrued in the end of 1928. Under Article 89, Limitation Act, the plaintiff had only three years within which to file a suit, but it was filed about five years later in 1933. The suit is thus clearly barred by limitation.
3. Learned Counsel for the plaintiff contends that the view of law taken by the lower Appellate Court 13 erroneous and reliance is placed on the case in Babu Ram v. Ram Dayal 12 A. 541 : A.W.N. 1890, 99, and on the casein Fink v. Buldeo Dass 26 C. 715 : 3 C.W.N. 524. In these two cases it was held that the agency does not terminate immediately on' the sale of the goods inasmuch as there is a subsequent obligation to account for the sums and to pay to them. It was said that where an agent for the sale-of goods receives the price thereof, the agency does not terminate with reference to Sections 201 and 218, Contract Act, until he has paid the price to the principal and a suit by the principal to recover the price is within time if brought within three years from the date of demand. The argument before me therefore is that in the present ease a formal demand was made on May 17, 1933, by means of a registered notice and the suit instituted on May 31, 1933, was, therefore, not barred by time. In the plaint it, is stated that the cause of action for the suit in the month of February 1933 on the day on which the money in deposit was demanded It appears that formerly it was alleged that limitation began to run form February 1933 connection with the sum of Rs. 200 which was deposited as, what I said a sort of margin money, but later by a statement dated July 30, 1934, recorded on paper No. 68-C, the case was confined to the recovery of Rs. 467 12 6 due on Recount of the profits on the shellac transaction and learned Counsel for the appellant asks that for this limitation should run from May 17, 1933. when registered notice was given.
4. There can be no doubt that the appropriate article which governs facts like the present is Article 89 and this was settled by their Lordships of the Privy Council in Ashghar Ali Khan v. Khurshed Ali Khan 24 A. 27 : 28 I.A. 227 : 8 Sar. 142 (P.C.). The only question that remains is as to whether limitation should run from the date of the demand (which is May 17, 1933, in the present, case) or from any earlier date. It is provided in Article 89 that a suit by a principal against his agent for movable property received by the latter and not accounted for should be brought within three years from the time when the account is during the continuance of the agency, demanded and refused, or, where no such demand is made, when the agency terminates. The view taken by the Allahabad High Court and the Calcutta High Court in the cases on which reliance is placed by learned Counsel for the appellant was dissented from the Madras High Court in Vewkata-chalam Chetty v. Narayanan Chetty 39 M. 376 : 26 Ind. Cas. 740 : A.I.R. 1916 Mad. 281 : 28 M L.T 140. The contending views were considered by the Additional Judicial Commissioner of Bind in Gurdhandas v. Firm Gokal Khatan A.I.R. 1926 Sind 264 : 96 Ind. Cas 79 : 21 S.L.R. 336 The learned Judge after pointing out the conflicts says that the Madras case referred to above was approved of by another Isench of the same High Court in Kuppusamy Aiyar v. Veerappa Chettiar A.I.R. 1918 Mad. 1325 : 37 Ind. Cas. 875 : 5 L.W. 375. He then referring to the case before him observed :
The Allahabad and Calcutta ceases, which I have referred to above, would appear to me clearly distinguishable on the facts from the present case. It van laid down in these two cases that the agency did continue till the agent paid the price of goods entrusted to him for sales but it cannot be overlooked that when an agent is appointed to sell certain goods on behalf of his principal, it is of the essence of his duties as an agent to pay to the principal the amount realized by his sale. But the same principle is not necessarily applicable in the case of a commission agent such as in the present case who is instructed to buy and sell goods on behalf of his principal and on carrying out his instructions the business of his agency terminates. The liability to account must not be confounded with the nature of the agency business. It is important to remember in this case that no goods were consigned to the defendants for sale by the plaintiffs and I wish, therefore, to confine my decision not as laying down a general principle, but as to the actual facts of this case. For the question of the termination of the agency must depend upon the circumstances of each individual case.
5. I wish to make it clear that I am not laying down any general principle, but I am confining my observations to the facts of the present case. If the contention of the learned Counsel for the appellant were accepted it would appear that where an agent is appointed, say even for one particular transaction and that particular transaction has been completed by the agent, that is to say, the profits due to the principal have come into the hands of the agent and no demand is made, there would be no limitation and limitation would begin to run only from the date of the demand even, if such demand is made fifty years afterwards. In the present case, however, it is not necessary to emphasize the anomaly of such a contention because to my mind it is only the second Clause of the third column in Article 89 which applies to the facts of the present case. Limitation also begins to run where no demand is made from the time when the agency terminates. This is irrespective of the date of demand and this has got to be decided on a consideration of the termination of agency. In the Allahabad and the Calcutta cases mentioned above, there were no circumstances from which the termination of the agency could be gathered except the one fact that the price came into the hands of the agent in connection with a certain transaction. It was, therefore, held that fact alone did not terminate the agency. In the present case we know that several transactions were entered into by the defendant on behalf of the plaintiff from June 1928 up-till about December 1928 and then the plaintiff distinctly asked the defendant not to enter into any further transaction as the plaintiff was gang out of the station. On this statement of the plaintiff the lower Appellate Court came to a finding of fact that the agency terminated by the end of December 1928, and in second appeal it is not possible for me to come to a different conclusion on the question as to when the agency terminated.
6. That being so, T am of the opinion that the decision of the Court below is right, and I dismiss this appeal with costs. Leave to file an appeal by way of Letters Patent is allowed.