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Khub Chand and ors. Vs. Chittar Mal - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad
Decided On
Reported inAIR1931All372
AppellantKhub Chand and ors.
RespondentChittar Mal
Cases ReferredNobin Chandra Barua v. Chandra Madhab Barua A.I.R.
Excerpt:
.....in his favour. there is a clear denial of the advance of any loan through the defendant to any person like mahommad ali nawaz khan deputy sahib, pandit pahlad singh, mian talib ali of naurangabad or mian hatim ali of naurangabad. we are therefore satisfied that the plaintiff's case that money was sent to the defendant from time to time which was invested by him on his behalf is true and that the transactions in question are evidenced by the defendants' own letter dated 18th january 1908 (ex. we are therefore clearly of opinion that the claim is in no way barred by time......appeal arising out of a suit for rendition of accounts against them on the allegation that khub chand defendant 1, for himself and as the managing member of the defendants' family was the agent of the plaintiff. according to the plaint the plaintiff's ancestors were residents of shikarpur although they were carrying, on business at haldwani and chiter mal plaintiff was a connexion by marriage of khub chand. about the year 1904 the defendant suggested to the plaintiff that he might, through him, start money-lending business and make investments in properties in the district of bulandshahr, to which the plaintiff agreed. he sent about rs. 20,000 to the defendant who obtained documents mostly in his own name except one for rs. 10,000 which was taken jointly in the name of the.....
Judgment:

Sulaiman, J.

1. This is a defendant's appeal arising out of a suit for rendition of accounts against them on the allegation that Khub Chand defendant 1, for himself and as the managing member of the defendants' family was the agent of the plaintiff. According to the plaint the plaintiff's ancestors were residents of Shikarpur although they were carrying, on business at Haldwani and Chiter Mal plaintiff was a connexion by marriage of Khub Chand. About the year 1904 the defendant suggested to the plaintiff that he might, through him, start money-lending business and make investments in properties in the district of Bulandshahr, to which the plaintiff agreed. He sent about Rs. 20,000 to the defendant who obtained documents mostly in his own name except one for Rs. 10,000 which was taken jointly in the name of the plaintiff and his uncle, as well as the defendant Khub Chand. According to the plaintiff the defendant did not render account to him but put him off.

2. In the written statement the defendant denied the allegation that he ever became the agent of the plaintiff or even that he ever received any money belonging to the plaintiff. He suggested that the plaintiff or his uncle Basdeo personally carried on some business and obtained documents in their own favour directly. The defendant however admitted that he was a joint creditor so far as the bond for Rs. 10,000 was concerned. In the written statement, apart from the absolute denial of the agency and the receipt of any money belonging to the plaintiff, there was no specific plea that the suit was brought more than three years after the termination of the agency. Nor was. there any suggestion that more than three years before the suit accounts had been demanded and refused by the defendant. There was however a general plea that the claim was barred by time.

3. The learned Subordinate Judge has found in favour of the plaintiff both on the merits as well as on the question of limitation and has passed a preliminary decree in his favour. The defendants have accordingly appealed.

4. Although full details of the money said to have been paid by the plaintiff to the defendants were not given in the plaint five specific transactions were put forward at the trial as those in which the plaintiff's money was invested through the agency of the defendant. The plaintiff served certain interrogatories on the defendant before the documentary evidence filed by him was allowed to be, taken out of the sealed cover and shown to the defendants. The answers of the defendant Khub Chand are to be found at pp. 8 and 9 on the lines of the pelas taken by him in the written statement. They contain an absolute denial of any receipt of money belonging to the plaintiff and of any realization of any bond by him. There is a clear denial of the advance of any loan through the defendant to any person like Mahommad Ali Nawaz Khan Deputy Sahib, Pandit Pahlad Singh, Mian Talib Ali of Naurangabad or Mian Hatim Ali of Naurangabad. The defendant admitted that he had instituted a suit against Pahlad Singh to recover the amount due on a promissory note executed by him about six years ago but claimed that related to his own personal money. Contrary to the statement in the plaint he admitted that he had realized Rs. 1,200 due to the plaintiff in different sums under instructions from him and pleaded that this sum was paid to the plaintiff through Lachhman Das though no receipt was obtained for it. (His Lordship after dealing with several transactions and considering the evidence, proceeded). The defendant Khub Chand . did not produce any account books of his own and stated that he only kept a note-book or memorandum. Even such memorandum has not been produced. We are therefore satisfied that the plaintiff's case that money was sent to the defendant from time to time which was invested by him on his behalf is true and that the transactions in question are evidenced by the defendants' own letter dated 18th January 1908 (Ex. 1, p. 43).

5. The next question is as to the legal position of the parties and the plea of limitation. The defendants deny that Khub Chand was acting as the agent of the plaintiff. Now under Section 182, Contract Act, an agent is defined to be a person employed to do any act for another or to represent another in dealing with third persons. On our finding it is quite clear that Khub Chand was employed by the plaintiff to invest money on his behalf and to represent him in dealings with the debtors. The case therefore comes directly within the definition of 'agent' as given in Section 182. We have already pointed out that the mortgage deed of 10th January 1904, expressly showed that money had been advanced to the mortgagor through Lala Khub Chand and in that transaction he undoubtedly acted as the agent of the plaintiff. The fact that he made realizations himself hand made endorsements on the back of the deed also shows that he did realize the money on behalf of the mortgagees. His admissions contained in Ex. 1 also go to show that he was receiving interest on behalf of the plaintiff and was holding his money in his hands and was expressing his readiness to send the money wherever directed. He also sent an account showing the amounts due to the plaintiff from the various debtors and admitted that he had the ruqqas and bonds in his possession which he could send to the plaintiff if so instructed. We have therefore not the least doubt in our minds that the position of Khub Chand was that of an agent of the plaintiff in this business. Agency need not be created expressly by any written document and can be inferred from the circumstances and the conduct of the parties. In this case we have both: see Jetha Ram v. Mehnga Ram [1916] 33 I.C. 438. We therefore affirm the finding of the Court below on this point.

6. The next question is whether the present claim is within limitation. As pointed out above the defendants did not plead in their written statement that the agency had terminated more than three years before the suit nor did they plead that they had refused to render accounts on a demand by the plaintiff more than three years before the suit. If therefore the defendants are to be pinned to their pleadings no question of limitation would arise as the burden undoubtedly lies on the defendants to establish that the claim is beyond time.

7. The learned advocate for the defendants, however relies on certain admissions made by the plaintiff in the witness box and urges that they amount to an admission that there was a demand for rendition of accounts and a refusal. The plaintiff stated that six years ago he had demanded money from Khub Chand and that another demand was made by him four years before he gave evidence. He further admitted that 15, 16 or 14 years ago he asked for accounts and that he also asked for accounts five or six years ago. He was not asked whether the defendant promised to render accounts and pay him off or whether he refused to render any account, but the plaintiff did admit that seven or eight years ago he asked the defendant to show him the bond and the ruqqas but the defendant refused to show them. On these admissions it is argued that there was a refusal on the part of the defendant to render accounts seven or eight years before the plaintiff gave his evidence. The admissions, however fall short of showing that there was any refusal on the part of the defendant to render accounts. Any doubt that there may remain is removed by the statement of Khub Chand himself in which he positively asserted that the plaintiff never asked him to give an account of money-lending nor did he refuse to give such an account. The reason given by him was of course, that no money-lending was done through him and he had no such account. Taking these two statements of the parties together it is impossible to hold that there was a refusal to render an account some-years before the suit.

8. The claim is undoubtedly governed by Article 89, Lim. Act which relates to a suit by a principal against his agent for property received by the latter and not accounted for and for which the period of three years runs from the date when the account is?during the continuance of the agency, demanded and refused, or where no such demand is made when the agency terminates: see Nobin Chandra Barua v. Chandra Madhab Barua A.I.R. 1916 P.C. 148 In the present case we have already pointed out that there was no refusal to render accounts.

9. There is also no proof that there was. any termination of the agency. Under Section 201, Contract Act, an agency terminates by the principal revoking the authority or by the agent renouncing the business of the agency or by the business of the agency being completed or by either party dying or becoming of unsound mind or by the principal becoming an insolvent. In the present case there is no proof of any revocation of authority or any renunciation of the business of the agency by the agent. The business also may be said to have been completed when no accounts were actually rendered and the amounts outstanding were never paid to the plaintiff. We are therefore clearly of opinion that the claim is in no way barred by time.

10. It is not necessary to consider at this stage whether the defendant has made any payment to the plaintiff so as to reduce his liability. The suit was no doubt brought after a long interval of time and it is extraordinary that the plaintiff would have allowed himself to put off and not insist on complete accounts being submitted to him long ago. The question whether any or what amount is actually due from the defendant to the plaintiff is a matter which will have to-be gone into thoroughly when the time for the preparation of the final decree arrives.

11. We accordingly dismiss this appeal with costs including in this Court-fees on the higher scale.


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