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Mohant Srt. Banwari Mukunda Das Nandi Vs. Promothanath Bhattacharji - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata
Decided On
Reported inAIR1938Cal12,173Ind.Cas.530
AppellantMohant Srt. Banwari Mukunda Das Nandi
RespondentPromothanath Bhattacharji
Excerpt:
- .....is responsible for his acts to the agent, but not to the principal, except in case of fraud or wilful wrongs.2. a half-hearted attempt was made by mr. das appearing on behalf of the appellant before us to suggest that the defendant herein is not really in the position of a sub-agent but was a substituted agent. in other words, by some metaphysical process he had put himself into the place of the maharajah who had originally been appointed an agent for the plaintiff. as far as we can see, there is no justification for that suggestion and it was not seriously pursued. we are therefore left to deal with this position that the defendant was lawfully appointed a sub-agent by reason of an appropriate provision in the document originally appointing the maharajah an agent for the plaintiff.....
Judgment:

1. This appeal is from a decision of the Subordinate Judge of Birbhum dated 5th July 1934 whereby he reversed a decision of the Munsif of Suri dated 30th November 1933. The suit was one for accounts. The plaintiff's case was that he had executed an ammukhtearnama in favour of the late Maharajah of Cossimbazar whereby he appointed the Maharaja as his agent for the management of certain debuttar properties. It is stated that the Maharajah took possession of the properties for the purpose of management. In the instrument conferring agency upon the Maharajah, there was a provision set out in Clause 4 of that document authorizing the agent to engage pleaders, mukhtears and sub-agents. The Maharajah in pursuance of the power given in the document in that behalf, had appointed the defendant Pramatha Nath Bhattachary a, his gomasta, for the purpose of collecting rents of the debuttar properties and doing other work of like character. The Maharajah died on 26th Kartick, 1336 B. S. which corresponds to 11th November 1929. The plaintiff urged that the defendant had continued to function as a sub-agent until the end of Kartick 1336, that is to say until 15th November 1929, i.e. four days after the death of the principal agent. The plaint contained an allegation of a somewhat nebulous character to the effect that the defendant had misappropriated money which he had realized from the properties, that he had remitted interest to tenants on his own responsibility, that he had allowed rents to be barred by lapse of time, that he had out down and misappropriated to himself trees from the khas lands belonging to the plaintiff and that he had also misappropriated amounts collected by him as selamis from various tenants. The plaintiff accordingly sued the defendant on the basis that the defendant had rendered himself liable to account to the plaintiff. Now it is clear law that a person who is a sub-agent is not liable to account to the principal except in very limited circumstances. The matter comes within the provisions of Section 192, Contract Act, which states:

Where a sub-agent is properly appointed, the principal is, so far as regards third persons, represented by the sub-agent, and is bound by and responsible for his acts, as if he were an agent originally appointed by the principal. The agent is responsible to the principal for the acts of the sub-agent: The sub-agent is responsible for his acts to the agent, but not to the principal, except in case of fraud or wilful wrongs.

2. A half-hearted attempt was made by Mr. Das appearing on behalf of the appellant before us to suggest that the defendant herein is not really in the position of a sub-agent but was a substituted agent. In other words, by some metaphysical process he had put himself into the place of the Maharajah who had originally been appointed an agent for the plaintiff. As far as we can see, there is no justification for that suggestion and it was not seriously pursued. We are therefore left to deal with this position that the defendant was lawfully appointed a sub-agent by reason of an appropriate provision in the document originally appointing the Maharajah an agent for the plaintiff in regard to these debuttar properties. It follows therefore that the defendant can only be made liable to the plaintiff on the basis of the provisions of Section 192, Contract Act, which means that he can only be made liable if it can be shown that this was a case of fraud or wilful wrong. The learned Judge in the Court of Appeal below has stated that there was no specific allegation of fraud or wilful wrong in the plaint. Only an allegation of misappropriation in a general way was made in the plaint. It is not disputed that where a person seeks to rely upon an averment of fraud or anything akin to fraud, he must give proof of fraud or wrong-doing of his agent. In this particular case, the learned Subordinate Judge points out that there was no such specific allegation. There were merely general allegations. Then having considered such evidence as there was, the learned Subordinate Judge says : 'There is practically no evidence also on the record to prove any specific case of fraud 'or wilful wrong''. We must regard that as a definite finding of fact. There being no proof of any Instance of fraud or wilful wrong, the matter cannot be brought within the four corners of Section 192. Therefore the general principles hold good that a sub-agent should not be made liable direct to the principal. It follows therefore that the decision of the lower Appellate Court is correct and this appeal must be dismissed with costs.


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