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Debendra Nath Ghosh Vs. Sheikh Esha Huq Mistri - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.58
AppellantDebendra Nath Ghosh
RespondentSheikh Esha Huq Mistri
Cases ReferredHem Chandra Boy v. Chandra Narain Muherjee
Excerpt:
limitation act (xv of 1877), schedule ii, articles 89 and 115 - account suit against collection agents--no express contract that account should be rendered at end of each year. - .....parties which should take away the case from the operation of the three years' rule of limitation as prescribed by article 89. the agency having terminated within three years from the institution of the suit and there having been no plea or finding that there was any demand at any time within the period of the agency, no portion of the suit can be held to be barred by limitation. the decision of the lower appellate court, so far as this question is concerned, is set aside and the case remanded to that court to be dealt with in accordance with law. if it be found necessary by the lower appellate court to send the case back to the court of first instance for any finding, it may do so.4. costs will abide the result.
Judgment:

1. This is an appeal in a suit for accounts brought by the principal against his agent. The plaintiff was the seputnidar of a village called Bijra. The defendant was his collection agent and served as such from the beginning of the year 1301 to 3rd Aughran 1309. On the latter date, he was dismissed. The account was sought for the entire period from 1301 to 1309.

2. One of the pleas raised in the defence was whether the suit so far as it covered the period beyond three years from the institution, was barred by limitation. Both the lower Courts gave effect to the plea. As regards the period within the three years, the Munsif held that the defendant was not liable to pay any money on account of that period.

3. The only question before us relates to the period from 1301 to 1308. It was contended in the lower Court that the article in the Second Schedule of the Limitation Act applicable to the case was 115 and not 89. The lower appellate Court relied on a decision of this Court Moti Lal Bose v. Amin Chand Chattopadhay 1 C.L.J. 211. That case, however, is distinguishable from the present case. There the contention was whether Article 116 applied, if there was a contract that account should be rendered at the end of each year and whether the six years prescribed by that article should not be counted with reference to the end of each year. In the present case there was no express contract to that effect. But the defendant was the collection agent of the plaintiff, and, as held in Jogendra Nath Roy v. Deb Nath Chater 8 C.W.N. 113 and in Hem Chandra Boy v. Chandra Narain Muherjee 32 C. 719 : 1 C.L.J. 232, the case is one in which article 89 applies. There is nothing in the contract between the parties which should take away the case from the operation of the three years' rule of limitation as prescribed by Article 89. The agency having terminated within three years from the institution of the Suit and there having been no plea or finding that there was any demand at any time within the period of the agency, no portion of the suit can be held to be barred by limitation. The decision of the lower appellate Court, so far as this question is concerned, is set aside and the case remanded to that Court to be dealt with in accordance with law. If it be found necessary by the lower Appellate Court to send the case back to the Court of first instance for any finding, it may do so.

4. Costs will abide the result.


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