1. The Courts below have dismissed the suit which the plaintiff instituted for what has been considered by them as a suit for accounts. The main ground of their decision is that the plaintiff's right is based upon an assignment which he obtained from the proforma defendants of what has been held to be a bare right to sue within the meaning of Section 6(e), T.P. Act. The plaintiff purchased from the pro forma defendants certain immovable properties together with certain rights which were described in these words:
Sheikh Deanat Hossein of Lakshmipur and Sheikh Yadali of Nayadanga have both been working under us as Tahsildars in respect of the properties described in Sch. 1-10; you will take from them to your satisfaction, either amicably or by suit, all papers relating to the collection of the properties sold, and the accounts for the period of their service, and the moneys that may be found due from them on the basis thereof.
2. The question which arises for consideration which arises for consideration in this case presents some difficulties in view of the fact that there are two decisions of this Court, Khetra Mohan Das v. Biswanath Bera : AIR1924Cal1047 and Churamani Mandal v. Rajendra Kumar (1917) 42 IC 390, which are in conflict with each other. With the utmost respect for the learned Judges who decided the case of Khetra Mohan Das v. Biswanath Bera : AIR1924Cal1047 , I must say I am unable to agree with the decision. That case makss no distinction between a right to recover damages for the negligence of an agent in failing to collect rents or in other ways and the right to recover moneys belonging to the principal which the agent may have collected as rents and which should be presumed to be in the hands of the agent until accounted for. Indeed, referring to the case of Varaha Swami v. Ram Chandra Raja (1915) 38 Mad 138 which was mainly relied upon in that case, the learned Judges observed:
It was held that a mere right to recover damages for the negligence of an agent in not collecting rent is not assignable. There does not seem to be much difference between failure to collect rent and failure to pay rent collected.
3. I am unable to assent to the proposition thus laid down. The distinction, in my opinion, is well marked; one is an action for damages and the other for recovery of moneys had and received. The distinction is clearly pointed out in the of Madho Das v. Ramji Patak (1894) 16 All 286. In that case it was observed thus:
There can, in our opinion, be no doubt that money or a balance in the hands of an agent, which he has received from or holds for his principal to be applied to certain purposes can be recovered from that agent as money had and received to the use of the principal, if the agent fails to apply it, or if the agent having applied part of it, a balance remains in the hands of the agent: and the fact that when the principal brings his suit to recover such balance he may, until the agent's accounts are produced, be unable to specify the particular amount of the balance remaining in the agent's hands and due to him does not prevent such balance being a debt due to the principal. Such balance is a sum of money which the agent is bound on principles of justice and equity to pay over on demand to his principal, although there may have been no actual but only an implied agreement to repay such balance.
4. It has been argued before me that in the present case the amount was not ascertained at the date of the transfer. But I do not think that makes any difference, so long as it is ascertainable. So long as the transfer is limited to the right to sue for the money which may be found to be in the hands of the agent and is not meant to include a right to sue for damages on account of negligence or in the sense of moneys which ought to have been in his hands were he diligent, I do not think the transfer can be said to be in respect of a mere right to sue. I therefore prefer to follow the decision of this Court in the case of Churamani Mandal v. Rajendra Kumar Sinha (1917) 42 IC 390. The appeal is therefore allowed and the decisions of the Courts below being set aside the case is remanded to the trial for further trial. Costs of all the Courts will abide the final result of the suit.
5. Care must be taken in the trial of the suit to keep the aforesaid distinction in view. As regards the account books and papers there can possibly be no objection to a decree for their recovery, should a case for such decree be made out on the facts. If it is found that they are with the defendant, he should be called upon to produce them and the plaintiff will be allowed inspection thereof to make out his Case and to allege and prove specifically what money is still in the hands of the defendant. Should they be not produced by the defendant, the plaintiff will have to prove by independent evidence and with the aid of the presumption contained in Section 114, Evidence Act, what is the amount likely to be in the hands of the defendant on account of collections which he made and it would then be for the defendant to claim and prove any deductions which he may be entitled to. The attention of the Court, which will have to try the suit, is invited to the principles laid down by this Court in the case of Bharat Chandra v. Kiran Chandra : AIR1925Cal1069 . The findings of the Subordinate Judge on the question of the period during which the defendant was in service as agent will stand and will not be allowed to be re-opened at the trial. Leave is granted to the appellants to prefer an appeal under the Letters Patent.