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Harender Kishore Singh Vs. the Administrator-general of Bengal on Behalf of the Estate of Mr. J.S. Rochfort, Deceased - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal357
AppellantHarender Kishore Singh
RespondentThe Administrator-general of Bengal on Behalf of the Estate of Mr. J.S. Rochfort, Deceased
Cases ReferredKhunni v. Nasir
Excerpt:
limitation - principal and agent--breach of contract--account--registered agreement--limitation act (xv of 1877), schedule ii, articles 89, 90, article 90: 116 article 116: benq. act viii of 1869, section 30--costs--administrator-general's act (ii of 1874), section 35. - prinsep, j.1. by a registered agreement, dated the 17th april 1875, rochfort was taken into the service of the maharajah of bettiah, and his eldest son, as manager of their estates, on certain terms and conditions therein expressed. among these, the term of three years was agreed on as the term of the service. it was further stipulated that that service might be terminated at the end of that period, after certain notice; that rochfort should at the end of each fusli year account for, and transmit in the usual manner all moneys that may have been collected or may have been received by him as manager; that he should keep proper books of account, etc.2. on the expiry of this stipulated period of three years, rochfort gave notice to the maharajah requesting his discharge, with the intention.....
Judgment:

Prinsep, J.

1. By a registered agreement, dated the 17th April 1875, Rochfort was taken into the service of the Maharajah of Bettiah, and his eldest son, as manager of their estates, on certain terms and conditions therein expressed. Among these, the term of three years was agreed on as the term of the service. It was further stipulated that that service might be terminated at the end of that period, after certain notice; that Rochfort should at the end of each Fusli year account for, and transmit in the usual manner all moneys that may have been collected or may have been received by him as manager; that he should keep proper books of account, etc.

2. On the expiry of this stipulated period of three years, Rochfort gave notice to the Maharajah requesting his discharge, with the intention of proceeding to England for urgent family reasons. Eventually Rochfort was permitted to go in December 1878. He returned to Calcutta in the following June, and died in that city during July 1879.

3. After Rochfort's departure, Mr. T.M. Gibbon was appointed manager of the Maharajah's estate, and directed to examine Rochfort's accounts. Finding that there was a considerable sum unaccounted for, Mr. Gibbon, on behalf of the Maharajah on the 23rd July 1879, called upon Mr. Rochfort to explain certain items furnishing him with a memorandum of account. This letter probably arrived immediately after Rochfort's death, or it may have reached him on his deathbed, for he died on the 26th of that month.

4. The Maharajah has brought the present suit against Rochfort's estate, represented by the Administrator-General, claiming Rs. 67,661-1 anna and 10 dams, as the amount of the sums of money not accounted for by Rochfort, together with interest thereon, amounting in all to over a lac of rupees.

5. With the exception of very small items, which have not been made the subject of appeal before us, the entire claim has been dismissed by the Subordinate Judge as barred by limitation under Articles 89 and 90, Schedule II of the Limitation Act of 1877.

6. It has been contended before us on appeal that, inasmuch as the contract, the breach of which has entitled the plaintiff to bring the present suit, is a registered document, the suit is governed by Article 116, rather than by Articles 89 and 90, which would otherwise govern the case. As authority for this, the case of Nobocoomar Mookhopadhya v. Siru Mullick I.L.R. 6 Cal. 94 decided by a Division Bench of this Court, as well as the case of Husain Ali Khan v. Hafiz Ali Khan I.L.R. 3 All. 600 decided by a Full Bench of the Allahabad High Court, have been quoted, as well as two cases decided by Division Benches of the same Court.[1]

7. In the construction of Article 116, we follow the rule laid down in Nobocoomar Mookhopadhya v. Siru Mullick I.L.R. 6 Cal. 94. The term 'compensation' used in Article 116 seems to have been used in the sense in which it appears in Section 73 [2] of the Contract Act, and, therefore, wherever a suit for such compensation is brought for a breach of contract in writing and registered, whether such compensation be for liquidated or unliquidated damages, the limitation applicable is six years, as prescribed by that article. We are, consequently, of opinion that, so far as it is founded on that agreement, the present suit which has been brought within that period is not barred.

8. The plaintiff sues to recover certain sums of money set forth in detail in the schedule of the plaint, as hating been received by Rochfort, and not accounted for, stating that they have been misappropriated. This cannot, therefore, be regarded as a case for an account, and to recover any sums that may be found to be due as the result of taking such an account. We have rather been asked to determine whether Rochfort did not receive the sums of money specified in the schedule of the plaint, whether he is not bound to account for these, and whether, in the absence of a proper account, he is not liable to repay them to the plaintiffs.

9. We find necessary to mention this, because at the termination of his argument, the learned Counsel for the plaintiff asked us to direct that an account may be taken, if we are not satisfied that the sums claimed were due from the defendant. To this we cannot accede. The learned Counsel for the appellant has pressed us to accept and act upon the opinion of Mr. Gibbon who examined Rochfort's account, to require the defendant to explain the items mentioned by Gibbon, and if any of these items are not satisfactorily accounted for, to make Rochfort's estate liable.

10. It would be impossible for us to accept the result of Gibbon's enquiry into Rochfort's affairs in connection with the Bettiah estate as evidence against the defendant. Gibbon succeeded Rochfort in plaintiff's service. It would be impossible to receive the result of his enquiry as evidence, for this would amount to regarding him as a Commissioner specially appointed by the Court under authority of law, whereas no such appointment has been made. We are entitled to require from the plaintiff the same evidence which has satisfied Gibbon.

11. But on the general question, whether the suit, so far as it relates to Rochfort's employment on the registered agreement, is not barred by limitation, the character of the transactions under which several of the items are claimed requires that we should consider and determine the nature of the service entered into under that agreement, and whether some of Rochfort's transactions with the plaintiff, such, for instance, as his borrowing money for his employers from native mahajuns, and drawing on those mahajuns, would not be beyond the terms of that agreement so as to make him liable to account, not on that agreement, but merely as the general agent of the plaintiff. The fact that this agreement is a registered document entitles the plaintiff in a suit founded thereon to a special term of limitation exceeding the term allowed for suits arising out of the ordinary relations of agency.

12. The document, which is in the English language, has the appearance of having been drawn with some care by one having some knowledge of drafting. In some respects its terms are very precise. We think that it should be construed with respect to the employment entered into under it, as expressing the deliberate and complete intention of the parties to it. The intention of the parties is set forth to be the employment of Rochfort 'to act as manager of the estates of the Maharajah and Maharaj Koer upon the terms and conditions hereafter specified.'

13. The document then sets out: 'Rochfort shall and will act as the manager of estates consisting of zamindaries, talooks, etc., known as the Bettiah Estate pertaining to the Raj of Bettiah, and do all acts that are necessary as a manager for the proper preservation, security, welfare and improvement of the said estates, and that his duty as such manager shall consist in taking the conduct and management of all collections of the zamindaries, etc., of the said estate, in paying Government revenue, making ordinary settlements, in liquidating all liabilities by which the said estates are or may be encumbered, in carrying on, instituting and defending law suits, and doing such other acts for the management, preservation and benefit of the said estates as may be necessary or advisable.'

14. So far as we understand these terms, Rochfort was to be employed simply in matters connected with the management of the zamindaries and other landed properties. It was next set out that Rochfort was to conduct himself with 'all due diligence, honesty and propriety, and in conducting the said business' to act in accordance with the orders of his employers, and in the absence of such orders to 'act in such manner as may be most conducive to the advantage of the estate.'

15. He is next required to 'account for and transmit all moneys that may be collected, or that may be obtained, or that he may receive as such manager for the estate or raj.'

16. It is contended that the words 'that may be obtained' are general, and were intended to include monyes obtained by Rochfort in any capacity. But we cannot accept this interpretation. It seems to us rather that the passage should be read thus, 'that may be collected as such manager,' or 'that may be obtained as such manager,' or 'that he may receive as such manager,' and that it is his acts as manager that are contemplated and thus provided for.

17. Nor are we able to attach any importance to the use of the expression 'estate' sometimes in the singular and sometimes in the plural. We do not understand that from this it was intended that Rochfort should be a general servant of the raj, that he should be employed under the terms of the instrument in any and every matter connected with his master's affairs that might suggest itself to them. The next clause relates to the manner in which accounts shall be kept and rendered. The term raj or estate is used. He is styled 'manager of the said estate or raj,' and it is provided that 'all expenses incident to the performance of the duty shall be borne and paid by the estate.' We do not understand that these expressions affect the character of the service entered into, and already specifically described.

18. The next clause relates to Rochfort's salary.

19. The next clause to the providing of certain perquisites, such as a furnished dwelling-house, conveyance, and horses for the purpose of the business of the estate, and repayment of all travelling expenses incurred on 'account of the business of the estate,' and he is allowed to attend to legal business 'provided the demands of the said estate on his time are first satisfied,' etc., etc.

20. A stipulation is then introduced providing for the case of neglect or refusal on the part of Rochfort 'to perform the duties hereby required by him,' and for the termination of his service after certain notice.

21. There is, therefore, nothing on the face of this agreement for the performance of any duties other than those connected with zamindari management. No doubt, very soon after his entering the plaintiff's service, Rochfort was employed on other matters unconnected with such management, such as satisfying debts against the plaintiff, contracting loans, and other transactions of a more private character, as shown by some of the items specified in the schedule to the plaint. We cannot, however, from this assume that such duties fell within the terms of the written agreement. It may be that a refusal to perform such services would have led to his dismissal, but that would not have justified such a course, and we cannot hold that acts of this nature (done perhaps to ingratiate himself with his masters) were, because they were done by him, to be taken to have been performed by him under the terms of this agreement, which, as we construe it, does not contemplate or stipulate for them. We must, therefore, hold that all acts not within the ordinary management of a zamindari are not within the terms of the written agreement, but of some understanding or private arrangement, tacit or express, between the parties. Another point has been taken by the respondent, that the suit was one under the Bengal Rent Act of 1869, Section 30, and that, as it was not brought within three years from the termination of the service, it is barred. We think that the suit is not of that nature, and that the service entered into by Rochfort by the written agreement was something beyond that of a zamindari agent under the terms of that section, whose duty is only to collect money from the tenants and deliver accounts and papers thereof.

22. Although the case was not so laid before us by the appellant's counsel, we propose to deal with the several items in the order in which they are stated in the schedule of the plaint.

23. The first item relates to a sum of Rs. 50, being the balance of a sum of Rs. 500 taken by Rochfort, in October 1875, for the wages of syces. It was no part of Rochfort's service under the written agreement to perform this duty, and, therefore, any liability to account for this money would be in respect to his position as an agent for that purpose. This item relates to a time more than three years before the institution of this suit, and is, therefore, barred.

24. The second and third items have not been pressed before us in appeal, and therefore we need not consider them.

25. Item No. 4 relates to a sum of Rs. 1,000 taken by Rochfort on the 25th October 1876, for the purpose of paying the wages of the servants. It is barred on the same grounds as item No. 1.

26. Items Nos. 5, 6 and 7 have been abandoned by the appellant.

27. Item No. 8 amounts to Rs. 16,515, which may be briefly described as the balance in excess of a sum of Rs. 38,000 odd received by the Maharajah for his own private expenses, the amount debited by Rochfort on this account having been wrongly entered as Rs. 55,000.

28. It appears that in the course of 1876-77, Rochfort, under the authority of the plaintiff and as his general manager, in which capacity, however appointed, he seems habitually to have acted, borrowed Rs. 3,00,000 from Madho Das on a bond. The accountant of the Rajah's office, in December 1876, represented the necessity of getting the account from the mahajun, so as to adjust his own account. Eventually this was obtained. And after this was examined in the office, it seemed to Rochfort, from entries in his own English account, that Rs. 55,000 had been paid on account of allowance of the Maharajah and his son, and he directed a similar entry to be made in the corresponding Persian account, where it appears 'as on account of the has expense of the Maharajah and the Koer.'

29. Out of the mahajun's account of Rs. 3,00,000, four items amounting to Rs. 55,000 have been selected as representing the lump sum thus exhibited in Rochfort's accounts. These items also appear in the account furnished to Rochfort and signed by him as correctly representing, so far as can be tested here (that is to say, at Benares) the amount received and acknowledged by him. Some stress has been laid on the terms of this endorsement, but we think that it cannot properly be accepted as anything beyond an acknowledgment by Rochfort, that from the information then in his possession he believed that it was a correct account of the disbursements made. From the terms of the account itself and the evidence of Madho Das, the mahajun, of the manner in which payments have been made, it seems that Rochfort did not have sole control over the sum of Rs. 3,00,000 covered by this bond, so as to direct to whom and in what manner disbursements should be made. It seems rather that payments were made at various times to various persons, including Rochfort, in the service of the Maharajah. The payments relied upon as representing the sum of Rs. 55,000, are the following:

Rs. 10,000 paid on the 3rd Jeyt Budi, corresponding with the 11th May, to Rochfort, 'your managed.'

30. Rs. 24,000 paid to the Oriental Bank through Shah Koer Sen and Gya Pershad of Calcutta.

31. Rs. 15,000 paid on the 15th Kartick Budi (17th October 1876) on a cheque drawn by Rochfort, the manager of the Bettiah Raj, on Madho Das and Bisseswar Das, in favour of Haniram and Sriram, payable at sight after the 17th October 1876, value whereof is paid to the Benares Bank.

32. Rs. 6,000 paid on the 4th Kartick Budi (21st October 1876) on a chitti drawn upon Madho Das and Bisseswar Das, by Rochfort, manager of the Bettiah Raj, in favour of Haniram and Sriram, payable at sight, after 21st October 1876, the amount credited to Shah Koer Sen and Gya Pershad.

33. The payment of the first sum of Rs. 10,000, made on a receipt granted by the Maharajah and Rochfort, is shown to have been made to the Bank of Bengal at Benares. But on whose account such payment was made, whether on behalf of Rochfort himself, or on account of the Bettiah Raj, is not shown.

33. The payment of the next item of Rs. 24,000 was made to the Oriental Bank to the credit of the Maharajah and Maharaj Koer of Bettiah, in the name of their manager. This appears from the receipt itself, and is in accordance with the instructions communicated by Rochfort to the Manager of that Bank. Out of the sum of Rs. 24,000 it is proved that Rs. 14,000 was paid on a draft accepted by the Maharajah, and the balance Rs. 10,000 was drawn out by Rochfort himself.

34. The next item of Rs. 15,000 is shown to have been paid to the Bank of Bengal at Benares. But on whose credit this payment was made, does not appear. We are, therefore, in the same difficulty, as on the previous item of Rs. 10,000, in determining whether this money came into the hands of Rochfort, or was paid to the credit of the Maharajah with the Bank of Benares. This is a matter which the plaintiff should have cleared up before he could properly have attacked Rochfort for having misappropriated a portion of this particular payment.

35. But we think that this does not arise out of the employment created by the registered agreement. The three years' limitation applies to it, and the claim is consequently barred. The claim is asserted as having arisen out of Rochfort's dealing with money raised on behalf of the Maharajah to pay the Maharajah's personal debts. There is nothing to show that the loan was raised for the purposes of the estates, or management of them, or in any manner strictly within the terms of Rochfort's employment under the written agreement, or that any of the money drawn by Rochfort were intrusted to him, or came into his hands for such purposes. It seems rather that he acted with regard to this matter as a general servant or man of all work of the Maharajah, and not within the terms of his written engagement, which cannot be used to make the six years' limit applicable to this item.

36. Item No. 9, which has been allowed by the lower Court, has not been questioned in appeal before us.

37. Item No. 10 is a sum of Rs. 5,453-8 stated to be due from Rochfort as being the balance on account of sales of saltpetre through Gillanders, Arbuthnot and Co., and drawn from that firm, but not credited to the Maharajah.

38. The account rendered by Gillanders, Arbuthnot and Co. shows that Rs. 9,755-1 was the amount of the net proceeds of saltpetre sold on behalf of the Maharajah, and that of this sum Rs. 5,100 wasjpaid to Sriram mahajun on the 9th May 1878. It is admitted by the plaintiff that he has received credit for this payment. The account next shows that on the 27th May, Rs. 5,000 was paid to Rochfort on account of saltpetre consignment, and a further sum of Rs. 450 was paid on his order of the same date in favour of J.J. Ross. These two sums, however, exceed the amount standing to the credit of the Maharajah, and it has not been stated by the plaintiff that he has accepted any liability to Gillanders, Arbuthnot and Co., so as to entitle him to claim from Rochfort the excess sum drawn from that firm. The most, therefore, the plaintiff could claim on this account would be the difference between the amount due on the account sale, viz., Rs. 9,755-1 and Rs. 5,100, the amount for which he received credit from Rochfort, that is to say, Rs. 4,655-1.

39. The learned pleader for the defendant endeavours to show that the plaintiff has received credit from Rochfort for the sum entered as having been paid by Gillanders, Arbuthnot and Co., on the 27th May, namely, Rs. 5,000. But after giving full consideration to his arguments, it seems that they are formed on a mistaken view of the evidence, and that the evidence, on which he relies, relates to the payment of Rs. 5,100, and not to the subsequent payment of Rs.5,000. The mahajun's books, as well as the evidence of the mahajun's servant, seem to us to be conclusive on this point. The remark made by Mr. Gibbon in the memorandum of account sent to Rochfort with his letter of the 23rd July 1879, as against this particular claim, does not bear the construction contended for by the learned pleader. It seems that Rochfort obtained credit with Sriram for Rs. 5,000, and in exchange gave him a draft of Gillanders, Arbuthnot for Rs. 5,100. The sum of Rs. 5,000, therefore referred to by Mr. Gibbon as entered 'by G.A. and Co. as paid to you' (that is to say Rochfort), 'but as Sriram and Co, say they have received it, it is not entered against you'--does not refer to the payment made by Messrs. Gillanders, Arbuthnot and Co., on the 27th July, but to the payment of Rs. 5,100 made under the circumstances above stated to Sriram on Rochfort's draft. We are accordingly of opinion that Rochfort's estate must be held liable for the sum of Rs. 4,655-1, being the balance due on account of Gillanders, Arbuthnot and Co. and not accounted for by Rochfort. We think that this claim does come specifically within the description of moneys relating to the zamindari, of which the sale of saltpetre, their produce, undoubtedly forms a part. It is therefore not barred and must be allowed.

40. Items Nos. 11 and 12 are not pressed before us on appeal.

41. Item No. 13 was disallowed on grounds not material to this report.

42. Item No. 14 is a sum of Rs. 18,702-12. It is stated that the Maharajah borrowed rs. 1,50,000 from Madho Das; that of this sum Rochfort, on the 15th Assar (14th July) drew Rs. 500, on the 4th Bhador Rs. 15,000, on the same date Es. 500, and on the 13th Bhador Rs. 5,500, of which last sum Rs. 1,500 was paid to Dalumul Wabi, Rs. 566-4 to Sheo Gobind Singh, and Rs, 231 to Jagan Pershad, leaving a balance of Rs. 3,202-12 as actually paid to Rochfort through his messenger Somnath, and a further sum of Rs. 2,500 similarly paid to Rochfort on the 14th Bhador Sudi. These amount to Rs. 21,702-12, out of which only two sums, Rs. 500 and Rs. 2,500, that is Rs. 3.000, have been credited by Rochfort, leaving a balance unadjusted of Rs. 18,702-12. The sums claimed, therefore, appear to be items Nos. 1, 2 and 4 of the above account.

43. At the time that these transactions took place, Rochfort obtained his employer's consent to his resignation, and was in correspondence with the Maharajah regarding the submission and settlement of accounts and his discharge. On the 14th May 1878, the Maharajah of Bettiah directed him to submit the maskabar and saltamam papers with a view to a settlement of account. On this it would seem that Rochfort called upon his subordinates to send in the papers forthwith in order that they might be submitted to the Maharajah. What followed is not very clear. But it would seem from subsequent correspondence that Rochfort was very anxious to get relieved from his duties, while, on the other hand, the Maharajah declined to release him until he had come to a final settlement of his accounts. On the 23rd August, the Maharajah wrote that 'the manager has written to me several times, and also told me verbally that the period of his ikrarnama has expired, that he should get his salary which is due, and that he should get his discharge. Accordingly the prayer of the manager is granted in this way, that he should explain the jumma kharuch account in detail, etc., and that after seeing the papers and proceedings and taking accounts, his salary should be paid to him; and that until the examination of papers and proceedings, no order could be passed.'

44. The evidence shows that at this time the Maharajah was heavily pressed by his creditors, that his affairs were in great confusion, and required immediate attention. We learn from Rochfort's reply to the Maharajah's robakari of the 23rd August, that he wrote on the following day, that he had submitted all his papers, that he was prepared to furnish any explanation regarding any unintelligible item, and that he insisted upon getting his discharge on an early date. He further states: 'As I think it my first duty to give explanation of any matter which may be required of me, I do not intend to go to Chupra and Benares, nor am I bound to go there.' He further states that he gives this information to the Maharajah that he may send some person whom he likes to look after his affairs at Chupra and Benares.

45. The robakari of the Maharajah of the same date shows that he at once acceded to all Rochfort's demands, admitted that Rochfort had submitted all his accounts, and at the same time agreed to pay his salary, travelling allowance and the fees of the manager in cases on the same terms as are contained in the ikrarnama with reference to acts done under it, adding, 'it is necessary for the manager to go to Chupra and Benares to look after cases.'

46. The evidence and the account show that Rochfort acted in accordance with these conditions, and proceeded to Chupra and Benares on behalf of the Maharajah, and, so far as we can judge from the evidence, with full instructions to act on his behalf in such manner as might appear best calculated to afford immediate relief.

47. It is necessary to bear all these facts in mind in considering the claims made in item No. 14.

48. The first payment of Rs. 500 is proved to have been made to Rochfort himself. It nowhere appears in his account, which, although it shows a credit for a sum of Rs. 500, also shows that the amount was received by Rochfort during June, that is to say, before this sum was drawn by him from the mahajun, Madho Das. This amount has not been accounted for, and therefore Rochfort would be, held liable, if, as will presently be shown, the claim were not barred by limitation.

49. The next sum of Rs. 15,000 is stated by the mahajun to have been paid to 'you,' that is, to the Maharajah, on a chitti drawn by the mahajun upon Shah Koer Sen and Gya Pershad in favour of Rochfort. The money was duly paid to Rochfort, and by him paid into the Bank of Bengal at Benares.

50. The learned pleader for the defendant contends that, inasmuch as Rochfort's account tiled by the plaintiff shows that the money was paid by a, robakari, that is to say, under a written order of the Maharajah, which is corroborated by the terms of the entry in the mahajun's books, and as Rochfort's services under the written agreement had terminated by the acceptance of his resignation, it cannot be held that he acted under that written agreement, but that rather having regard to the claim made by Rochfort on account of money due to him for salary, it may fairly be contended that the money was paid to him to satisfy these claims or not in such a manner as to render him accountable for it, and further that, as the robakari authorizing the mahajun to make this payment has not been produced to clear up this point, the defendant is entitled to claim that he may be absolved from all liability.

51. We observe that in the account book of the mahajun of this loan, the transactions with Rochfort are represented very differently from the entries of the earlier loan of Rs. 3,00,000. When this loan of Rs. 3,00,000 was contracted and disbursements were made by the mahajun on this account, Rochfort was the accredited manager of the Maharajah; whereas at a subsequent period, when the loan for Rs. 1,50,000 was contracted and disbursements made on that account, Rochfort had put an end to his service under the written agreement, and was acting under a re-engagement apparently on the same terms as previously, but on a verbal agreement which the necessities of the Maharajah's embarrassed position and his confidence in Rochfort's ability to estimate him induced him to offer on Rochfort's own terms.

52. This state of affairs seems to us to afford some explanation for the difference in the entries in the account. In the earlier transactions, payments were made to Rochfort on his own authority, whereas all the later payments on the second loan were on express authority conveyed by robakari.

53. The claims made under item 14 do not depend on the written agreement, but on a verbal agreement and therefore the ordinary law of limitation is applicable. This suit has not been brought within three years from the receipt of these moneys, or within three years from the final termination of Rochfort's employment by the Maharajah, that is, from December 1878, when Rochfort left for England and therefore this claim is barred.

54. Item No. 15, p. 167 (Paper-book) relates to a charge of Rs. 5,000 on account of 'fees of mahajuns and others, and amlas and other persons being given according to permission'. No detail is given of this account, but we find (p. 318, Paper-book) that the Maharajah by a robakari, dated 12th July 1878, authorized the payment of this sum for the purposes stated. Under such circumstances, it is impossible to hold that Rochfort is liable for this amount. We should be disposed to think that the obvious purpose for which the money was to be expended would preclude the idea that the rendering of an account of their application was contemplated, and as the object of Rochfort's mission was accomplished, it might reasonably be inferred that those moneys were expended for the assigned purpose. But in any case the claim falls within the three years' limit and is barred.

55. Item No. 16 relates to Rs. 800 entered in Rochfort's accounts for the purchase of knives and forks for table, etc., to provide for the visit of the Lieutenant-Governor. This is a matter unconnected with the duties undertaken by the written agreement, and as more than three years have passed between the furnishing of this account and the institution of this suit the claim is barred.

56. Items Nos. 17, 18 and 19 were disallowed on grounds not material to this report.

57. The result, therefore, is that in addition to the sum allowed by the lower Court the plaintiff Will receive a decree for item No. 10, viz., Rs. 4,655, with interest at 12 per cent., calculated from the date on which this sum was received by Rochfort up to the date of this order, and thereafter at 6 per cent, to the date of realization. Under the special terms of the Administrator-General's Act, plaintiff will be entitled to no costs from Rochfort's estate (see Act II of 1874, Section 34), but will be liable to pay costs calculated on the amount disallowed.

[1] Kishen Lal v. Kinlock I.L.R. 3 All. 712 and Gauri Shankar v. Surju I.L.R.

3 All : 276; see also the case of Khunni v. Nasir-ud-din Ahmad I.L.R. 4

All 255.

[2] Section 73: When a contract has been broken, the party, who suffers by

Compensation for such breach, is entitled to receive from the party, who

loss or damage, has broken the contract, compensation for any loss or

breach of contr- damage caused to him thereby, which naturally arose in

act. the usual course of things from such breach, or which

the parties knew, when they made the contract, to be

likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or

damage sustained by reason of the breach.

When an obligation resembling those created by contract has been

incurred and has not been discharged, any person,

injured by the failure to discharge

Compensation for it, is entitled to receive the same compensation from

failure to disch- the party in default as if such person had contracted to

arge obligation discharge it and had broken his created by contract.

resembling those

contract. Explanation: In estimating the loss or damage arising

from the breach of contract, the means which existed

of remedying the inconvenience caused by the non-

performance of the contract, must be taken into account.


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