1. This appeal has arisen out of a suit for recovery of certain amounts-alleged to have been realized by the defendant as the plaintiff's dewan and misappropriated by him. We are concerned with four items. The trial Court-decreed these items in favour of the plaintiff. The lower appellate Court has allowed the appeal in part and decreed the suit for Rs. 60 only in place of Rs. 600 decreed by the trial Court. The four items in question are: first of all, Rs. 240 alleged to have been realized by the defendant as the price of mangoes on 6th Jaistha 1326, and Rs. 60 on 29th Jaistha 1326, on account of which he-only paid Rs. 150; then (second item) Rs. 100 said to have been realized by the defendant as the price of mangoes on 10th Jaistha 1328; third item Rs. 250; said to have been realized by the defendant as the price of fish in Baisakh 1326;: and fourth item Rs. 100 said to have been realized from Gangagobinda Chakrabarty on 10th Jaistha 1328, as kharij dakhil. As regards items 2 and 3, the lower appellate Court found that the plaintiff had failed to prove his case that the defendant realized these amounts The learned Judge has gone into the evidence including the receipts said to have been issued by the defendant in the name of the plaintiff and says:
On a careful consideration of the evidence, I hold that the plaintiff fails to prove his case that the defendant realized these items.
He comes to this conclusion partly on the ground that the plaintiff withheld some evidence which could have satisfactorily proved his case. It is contended that the receipts having been signed by the defendant the learned Judge was wrong in coming to this conclusion. But these are findings of fact and the Judge has given reasons for his conclusions and was perfectly entitled to make a presumption against the plaintiff under Section 114, Evidence Act, if he considered that evidence which might have been given, had been withheld. I think therefore that we should not be justified in interfering with the decision of the lower appellate Court as regards these items. The same reasoning applies to item 4 also. The only question left is as regards item 1. The learned Judge found that this amount had been realized by the defendant, but held that the plaintiff's claim as regards Rs. 90, out of Rs. 150 due, was barred by limitation. He finds that Article 62, Limitation Act, is applicable and that limitation was extended because of the fraud of the defendant. It is contended on behalf of the appellant that Article 89, Limitation Act, is applicable. The article is as follows:
By a principal against his agent lor moveable property received by the latter and, not accounted for, and the period from which the limitation starts is when the account is, during the continuance of the agency, demanded and refused, or where no such demand is made, when the agency terminates.
2. It is established that the term movable property in this article includes money. Therefore on the plain wording of Article 89, this article applies in the present case as this money was received by the agent on behalf of the principal and was not accounted' for. That being so, the period of limitation is to run from the time when the account was demanded and refused or from the time the agency terminated. In this case, there was apparently no previous demand and therefore the limitation of three years would run from the time the agency terminated, which was was in 1330 B. S. It was neither the case of the plaintiff nor the defendant that any account was demanded and refused. On the other hand, the plaintiff's case was that he was unaware of the realization of these sums owing to the fraud of the defendant inasmuch as he did not submit any account.
3. Certain rulings were referred to in support of the respondent's contention that Article 89 is only applicable when the suit is for accounts: Jogendra Nath v. Deb Nath (1903) 8 C W N 113, Kesho Prosad Singh v. Sarwan Lal AIR 1917 Cal 156 and Puran Mal v. Ford MacDonald and Co. Ltd. AIR 1919 All 440. None of these authorities directly applies to the case in point. There are no doubt statements contained in them in support of the proposition that Article 89 is applicable only to cases for accounts. On the other hand, reference has been made by the appellant to the case of Jhapajannessa Bibi v. Bama Sundari Choudhrani (1912) 16 I C 414, in which we find it stated that clearly a suit for the recovery of specific sums misappropriated would be in closer accordance with the wording of Article 89 than a suit for an account. This is obvious and of course Article 89 also applies to a claim for a balance of account, but there is no reason to suppose that it is limited only to suits for accounts. The word 'account' in the third column can apply of course when any property is received and not accounted for. As Article 89 is applicable in this case, the plaintiff's claim as regards Rs. 90 is not barred by limitation. In these circumustances, it is not necessary to consider whether Section 18, Limitation Act, would apply or not. The claim of the plaintiff as regards Rs. 90 therefore succeeds.
4. This appeal is therefore allowed in part as regards Rs. 90 out of the claim of Rs. 150 in item 1 which was disallowed by the lower appellate Court. The appellant will recover one-half the costs incurred by him in this Court and in the lower appellate Court, also interests on the decretal amount at 6 percent from the date of the institution of the suit till realization. The order as to costs passed by the trial Court will stand in proportion to the success and failure of the parties as determined by this Court. Save and except as aforesaid the judgment of the Court below is affirmed.
5. I agree.