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Kesho Prosad Singh Vs. Sarwan Lal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.359
AppellantKesho Prosad Singh
RespondentSarwan Lal
Cases ReferredJalim Singh v. Choonee Lal
Excerpt:
principal and agent - agent's obligation to render accounts, scope of--limitation act (ix of 1908), schedule i, articles 64, 89, 115--suit for recovery of money found due on accounts taken and adjusted--limitation--'moveable property', whether includes money. - .....found due on adjustment of accounts, article 64 or article 115 applies. article 61 applies to a suit for money payable to the plaintiff as money found to be due from the defendant to the plaintiff on accounts settled between them. such a suit has to be instituted within three years from the date when the accounts are stated in writing, signed by the defendant or his agent duly authorised in this behalf. there is, however, an important exception to this rule, namely, in the case where the debt is, by a simultaneous agreement in writing signed by the defendant or his duly authorised agent, made payable at a future time, the period runs from the date when such time arrives. in the case before us, it has not been suggested that when the accounts of 1311 were adjusted, there was a.....
Judgment:

1. This is an appeal in a suit by a principal for recovery of a sum of money from his agent. The plaintiff claims three sums from the defendant, namely, Rs. 785-14 found due on adjustment of the accounts of 311, Rs. 1867-2-9 alleged to be due on the unadjusted accounts of 1314, and Rs. 661-5-6 said to have been advanced to the defendant. The agency ceased on the 15th October i907 and the suit was instituted on the 4th November 1910; but in this connection, it is to be borne in mind that the Court was closed on account of the annual vacation from the 2nd October to the 3rd November 1910, The District Judge has found, with regard to the sum of Rs. 661-5-6, that as the defendant has already accounted for it, the plaintiff is not entitled to relief in respect thereof. As regards the sum of Rs. 1,8 57-2-9, the District Judge has found that the plaintiff is entitled to succeed, and that no questions of limitation arises, as the suit was brought within three years from the date of termination of the agency as required by Article 89 of the Schedule to the Indian Limitation Act. The only question in controversy, consequently, is, whether the claim for Rs. 785-14 found due on adjustment of the accounts of the year 1311 is barred by limitation. The cas9 for the plaintiff is that the suit in respect of this claim is governed by Article 89, while the contention of the defendant is that Article, 64 applies to this matter. In oar opinion, Article 89 has no possible application in so far as thi3 portion of the claim is concerned.

2. Article 89 provides that a suit by a principal against his agent for moveable property received by the latter and not accounted for must be instituted within three years 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. If attention is confined only to the first column of this Article, the contention of the appellant may seem plausible; for the argument is that this is a suit by a principal against his agent; it is for recovery of moveable property, because it has been ruled that the expression 'moveable property' includes money; and it is further a suit for recovery of money which has been received by the agent and has not been accounted for, because the agent has not paid to the principal the sum claimed. Now, it need not be disputed, as was explained by Sir Barnes Peacock, C.J., in Kalee Kishen Paul Chowdhry v. Musmmat Juggut Tara 11 W.R. 76 : 2 B.L.R.A.C. 139 that the obligation of an agent to render an account of his agency and to account for money receivad by him, is not confined merely to rendering of accounts of what has been done with the moneys, but includes also the payment of any balance which might be found due from him upon taking accounts. But when the first column of Article 89 is read along, with the third column, it becomes plain that the suit contemplated by Article 89 is a suit in which accounts have to be taken. The first alternative mentioned in the third column refers to a case where the principal has demanded an aocount during the continuance of the agency and has mat with a refusal; the second alternative refers to a case where an account has not been demanded and presumably has not been rendered. Where an account has been rendered, Article 89 has thus no application. In our opinion, it is plain that where accounts have been taken and adjusted, and a specific sum has been found due from the agent to the principal, the principal becomes entitled to sue forthwith for recovery of that money: Nobin Ghunder Sahoo v. Surnop Chunder Dass 6 W.R. 328; Bissessur Gir v. Sree Kishen Shaha Chowdhry 24 W.R. 840 : Umedchand Hukamchand v. Sha Bulakidas Lalchand 5 B.H.C.R.O.C.J. 16 and Dukhi Sahu v. Mahomed Bikhu 10 C. 284 : 13 C.L.R. 445 : 5 Ind. Dec. (N.S.) 190; and the position is not altered, even if the agent continues thereafter to hold his office as agent of that principal. To a suit for the enforcement of a claim of this description, for the recovery of a specific sum found due on adjustment of accounts, Article 64 or Article 115 applies. Article 61 applies to a suit for money payable to the plaintiff as money found to be due from the defendant to the plaintiff on accounts settled between them. Such a suit has to be instituted within three years from the date when the accounts are stated in writing, signed by the defendant or his agent duly authorised in this behalf. There is, however, an important exception to this rule, namely, in the case where the debt is, by a simultaneous agreement in writing signed by the defendant or his duly authorised agent, made payable at a future time, the period runs from the date when such time arrives. In the case before us, it has not been suggested that when the accounts of 1311 were adjusted, there was a simultaneous agreement, in writing and signed as required by the Statute, for payment of the sum due at a future time. Consequently, time ran against the plaintiff from the date when the accounts were adjusted and the statement signed, and as the suit has been brought mere than three years after such date, the claim is clearly barred by limitation. On the other hand, if we hold, as has been done in some cases Laycock v. Pickles (1883) 4 B. & S. 497 : 33 L.J.Q.B. 43 : 9 L.T. 378 : 10 Jur. (N.S.) 336 : 12 W.R. 76 : 122 E.R. 546 : 129 R.R 827; Nahanibai v. Nathu Bhau 7 B. 414 : 8 Ind. Jur. 64 : 4 Ind. Dec. (N.S.) 278; Tribhosan Gangaram v. Amina 9 B. 516 : 5 Ind. Dec. (N.S.) 343; Zulfikar Husain v. Munna Lal 3 A. 148 : 2 Ind. Dec. (N.S.) 77; Amuthu v. Muthayya 16 M 339 : 5 Ind. Dec. (N.S.) 943 that the expression 'account stated' applies only where there are reciprocal demands, though a more popular signification was accepted in Bukhi Sahu v. Mahomed Bikini 10 C. 284 : 13 C.L.R. 445 : Ind. Dec. (N.S.) 190 and Manjunatha Kanti v. Devamma 26 M. 186 it is plain that Article 115 is applicable, and in that view also, the claim is barred by limitation: Jalim Singh v. Choonee Lal 11 Ind. Cas. 540 : 15 C.W.N. 882.

3. An ingenious attempt has been made to induce us to hold that the principal appropriated the sum due from the collection of subsequent years. There is no foundation for, this contention. If the sum found due on adjustment had, as a matter of fact, been paid by the agent to the principal, the plaintiff would not have included a claim for that sum in his plaint. On the other hand, it is plain that the accounts for the different years were separately adjusted and no claim has been instituted for the years 1312 and 1313, because, presumably, upon accounts taken for those years, nothing was found due from the agent to the principal. The suit is, in substance, for recovery of money found due on adjustment of accounts of the year 1311 and alleged to be due for the year 1314. In respect of the latter claim, the suit is governed by Article 89, as the accounts have to be taken; in respect of the former claim, the suit is for recovery of a debt found due on adjustment of accounts and is governed by Article 64 or Article 115. We hold, accordingly, that the view taken by the District Judge is correct and that his decree must be affirmed. The appeal is dismissed with costs.


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