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Sures Kanta Banerjee Chowdhury Vs. Nawab Ali Sikdar and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.848
AppellantSures Kanta Banerjee Chowdhury
RespondentNawab Ali Sikdar and anr.
Cases ReferredHafizuddin Mandal v. Jadu Nath Saha
Excerpt:
principal and ageent - suit for accounts--agreement--immovable property, hypothecation of--transfer to wife--re-transfer--agent manager of properties--no demand--suit within three years--limitation act (ix of 1908), schedule i, article 89-- principal, right of. - .....not quite consistently with his view as to the effect of the transfer, that as under the original agreement accounts were to be rendered at the end of each year, the plaintiff was entitled to accounts only in respect of the three years antecedent to the suit. on the present appeal, it has been argued that the judgment is inconsistent and that if the transfer by the husband in favour of the wife was a real transaction which terminated the agency and if a new agency was created in 1899 on the re-transfer by the wife to the husband, no reference can legitimately be made to the terms of the original agreement. the argument in substance is that article 89 is applicable to the suit and that as it has been instituted within three years from the date of the termination of the agency, the.....
Judgment:

1. This is an appeal by the plaintiff in a suit by a principal against his agent for accounts. The agency was created on the 24th May 1896, for management of immoveable property. In 1897 the principal transferred the property to his wife and two years later the wife re-transferred the property to her husband. The agent, however, continued to manage the properties as if no transfer had been effected. The agency was finally terminated in 1910, and the present suit was commenced on the 22nd March 1911 for accounts in respect of the years 1306 to 1317. The Court of first instance held that the terms of the agreement were enforceable and made a decree accordingly. By the agreement, which was embodied in a registered document, immoveable property had been hypothecated and the Court of first instance held that the suit was in essence a suit to enforce a charge against immoveable property within the meaning of Article 132 of the first Schedule to the Indian Limitation Act. On appeal, the Subordinate Judge has held that effect or the transfer of the property, for management whereof the agent was appointed, was to terminate the agency, and, that when the property was re-transfered by the wife to the husband, a new agency was created independently of the terms of the original contract: Behari Lal v. Hara Kumar 29 Ind. Cas. 748 : 21 C.L.J. 458. In this view, he has held that Article 132 was not applicable : he has thus treated the suit as one for accounts by a principal against his agent. At the same time, he has held not quite consistently with his view as to the effect of the transfer, that as under the original agreement accounts were to be rendered at the end of each year, the plaintiff was entitled to accounts only in respect of the three years antecedent to the suit. On the present appeal, it has been argued that the judgment is inconsistent and that if the transfer by the husband in favour of the wife was a real transaction which terminated the agency and if a new agency was created in 1899 on the re-transfer by the wife to the husband, no reference can legitimately be made to the terms of the original agreement. The argument in substance is that Article 89 is applicable to the suit and that as it has been instituted within three years from the date of the termination of the agency, the plaintiff is entitled to the accounts claimed. In our opinion this contention is well founded and must prevail.

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 agency terminates or from the date when there has been a refusal to render accounts during the continuance of the agency. As in this case there was no demand and refusal during the continuance of the agency, and as the suit has been instituted within three years of the date when the agency terminated, the plaintiff is clearly entitled to the accounts claimed. On behalf of the respondent it has been contended, however, that the accounts should be limited to the three years antecedent to the suit. For this proposition no authority has been cited and the terms of Article 89 do not support the contention : on the other hand, the view we take is supported by the decisions of this Court in the cases of Shib Chandra Roy Chow-dhury v. Chandra Narain Muketyee 1 C.L.J. 232 : 32 C. 719 and Hafezuddin Mandal v. Jadu Nath Saha 7 C.L.J. 279 : 35 C. 298 : 12 C.W.N. 820. Reference has been made to the fact that a different view was taken in Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 : 14 C.W.N. 122. 1 C.L.J. 211, where the decision in Mati Lal Bose v. Amin Chand Chattopadhay 24 Ind. Cas. 18 : 21 C.L.J. 459 was accepted as good law. As pointed out, however, in the case of Troilukhyanath Mandal v. Abanish Chandra Roy 24 Ind. Cas. 18 : 21 C.L.J. 459 the attention of the learned Judges who decided the case of Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 : 14 C.W.N. 122 was not drawn to the earlier decision in Hafizuddin Mandal v. Jadu Nath Saha 7 C.L.J. 279 : 35 C. 298 : 12 C.W.N. 820, and we are not prepared to accept it as good law.

3. The result is that this appeal is allowed and the decree of the Court below discharged. A preliminary decree is made in favour of the plaintiff for the accounts claimed in the suit. This decree is made on the assumption that a new agency was created in 1899 irrespective of the agreement of 1896. The case will now be remitted to the Court of first instance in order that the accounts may be taken. The appellant is entitled to his costs both in this Court and in the Court of the Subordinate Judge.


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