Ashutosh Roy and Others vs Arun Sankar Das Gupta and Others

Goha, J.—This appeal by the Plaintiffs is against the decision of the Subordinate Judge of Jeasore dated 24th December 1943 in a suit for recovery of a sum of Rs. 2225-15-9 from the Defendants and in the heading of the plaint it has been stated to be Account Suit No. 16 of 1942 but from the prayer in the plaint it is clear that it is a simple suit for recovery of the sum mentioned above.

The Plaintiffs'' case is a simple one. According to them, late Babu Jnanada Sankar Das Gupta, predecessor of the Defendants, was appointed as law agent of the Plaintiffs at Gopalganj in the district of Faridpur on 2nd January 1926. Jnanada Babu was also the pleader for the Plaintiffs'' estate at Gopalganj. Jnanada Babu acted as law agent till his death on 10th Magh 1345 B.S., corresponding to 26th January 1939. The duties of Jnanada Babu included the looking after all litigations on behalf of the Plaintiffs'' estate, sending the money realised to Sadar at Hatbaria, despatching a copy of the Rokor every month and submitting accounts from'' time to time. Jnanada Babu rendered accounts partially for the year 1839 B.S., but did not render any accounts from the year 1310 B.S. After his death, the Plaintiffs could not get all the papers, but from the papers received by them, they laid the claim in the present suit at Rs. 2225-15-9 after deducting the amount that was due to Jnanada Babu, on account of his bills, The Plaintiffs allege that Jnanada Babu by his neglect of duty, mal-feasance and non-feasance, has caused loss to the Plaintiffs'' estate and the Defendants, who are his heirs, are bound to compensate for the loss to the extent of the assets left by Jnanada Babu in their hands. This suit has been instituted on 26th January 1942 as 25th January 1942 was a Sunday.

Defendant 2 filed a written-statement in the suit but did not appear at the trial. The other Defendants 1 and 3 to 7 contested the Suit by filing a written statement. The Defendants contend that the suit is not maintainable as it is virtually a suit for accounts and that it is barred by limitation. The Defendants further contend that the Plaintiffs have withheld necessary papers and so the suit was not maintainable. The Defendants denied that Jnanada Babu was guilty of neglect of duty, misappropriation, etc., and contended that if all the papers were produced, it would be found that the Plaintiff''s estate was indebted to Jnanada Babu.

The learned Munsif, Sadar Jessere, held that it was not an account suit at all but a suit for recovery of a specified sum of money and so the suit was maintainable and that the suit was brought within 3 years of the death of Jnanada Babu, so was within time and Article 115, Limitation Act applied to the case; and that the Plaintiffs would be entitled to recover a sum of Rs. 1069-8-5 and corresponding costs from out of the assets of Jnanada Sankar Das Gupta in the hands of the Defendants and the Plaintiffs suit was decreed in part. There was an appeal by the Defendants and cross-objection by the Plaintiffs in the Court of the District Judge of Jessore and the Learned Subordinate Judge of, Jessore, who has heard the same, in a judgment which is remarkable for its lucidity, had held that the Plaintiffs will be entitled to a decree for Rs. 762-4-5 only, but the learned Subordinate Judge has held that Article 62, Limitation Act, applies to the case and as regards the claim under "Muktear Sherista" it is governed by that article and is barred because it is the common ground of both parties that all those moneys were received prior to 7th Aswin 1345 B.S. corresponding to 24th September 1938, which was clearly beyond 3 years of the institution of the suit. The learned Subordinate Judge has further hold that as regards the claim of the Plaintiff under "account Sherista" that is also barred by limitation on the facts because the date of demand for account and refusal is beyond three years of the suit and is, therefore, barred by limitation, either under Article 62 or 89, Limitation Act and Article 115, Limitation Act is not at all applicable. The learned Subordinate Judge has found also that there is no substance in the cross objection of the Plaintiffs because in his view it is also barred by limitation under Article 62, Limitation Act, and in the result he has dismissed the Plaintiffs'' suit in entirety.

The Plaintiffs are the Appellants here and their learned advocate Mr. B.K. De made it quite clear at the opening that his clients would be satisfied with a decree for Rs. 752-4-5 only as found by the learned Subordinate Judge and he contended that the learned Subordinate Judge was wrong in his decision on the question of limitation and according to Mr. De the article applicable to the case was either Article 115 or Article 120, Limitation Act. Mr. De in support of his argument referred to the case of Kumeda Charan Bala v. Ashutosh Chattopadhya 17 C.W.N. 5 : (16 I.C. 742) and incidentally to the case of Bindraban Behari v. Jamuna Kunwar 25 ALL. 55: (1902 A.W.N. 191). Mr. Tapendra Kumar Pal for Defendants-Respondents raised two contentions in supporting the decree of the learned Subordinate Judge, firstly, that the present suit was not maintainable and secondly, that the suit was barred by limitation either under Article 62 or 89, Limitation Act, and he cited before me the cases of Ramhari Kapali v. Rohini Kanta 35 C.L.J. 330 : AIR 1922 Cal. 499 and Rameswar Singh v. Narendranath Das AIR 1923 Pat. 259 : 71 I.C. 916.

Let me first consider the second contention of the learned advocate for the Respondent as to the maintainability of the suit. The learned advocate says that the suit has been described in the cause title as an account suit and is in essence a suit for accounts against the legal representatives of a deceased agent, hence it is not maintainable.

It is not disputed that Jnanada was an agent and he was liable for accounts. Section 213, Contract Act, provides that an agent is bound to render account to his principal on demand and this duty will be enforced by following in the hands of the agent the properties representing the money for which he ought to have accounted, and the liability to account is irrespective of any express contract to that effect. It is well settled on principle that the liability of an agent is personal and the deceased agent''s legal representatives cannot be required to render accounts in the same sense in which the agent himself might have been called upon to do. The reason seems to me that the legal representatives of the deceased cannot be required to discharge the duty to explain matters of which they have no personal knowledge and they cannot assist the principal in the investigation of the management of his estate of which they are wholly ignorant and they cannot be asked to do that which does not lie within their power and they should not be required to do something which is impossible. The rights and remedies of the principal against the agent and on the death of the agent against his representatives are not identical and this is supported by the view taken by Wilson J. in Lawless v. Calcutta L. and S. Co., 7 Cal. 627. A suit for account will lie if the Defendant is under an obligation to account and an obligation to account arises only (i) if the person upon whom the obligation is sought to be imposed must have received some kind of property not belonging to himself, (ii) that the person seeking to impose the liability must be the owner or must have some title to that property as would enable him to recover it, (iii) that the Defendant must have received the property in his possession and control and (iv) there must be fiduciary relationship between the Plaintiff and the Defendant. Now the legal representative of an agent does not stand in a fiduciary relationship. So a suit for account is not maintainable. Monmothanath Bose v. Basanta Kumar Bose Mullick 22 ALL. 332 : (1900 A. w. N. 98) is a case by a ward for accounts against his guardian during his guardianship. Kumeda Charan Bala v. Ashutosh Chattopadhya 17 C.W.N. 5 : 16 C.L.J. 282 : 16 I.C. 742, is a suit by principal against legal representatives of an agent, Nobin Chandra v. Chandra Madhab 11 Cal. 1 : (A.I.R. 1916 P.C. 148) and Bikram Kishore Manikya Bahadur Vs. Jadab Chandra Choudhury and Others, . are suits by principal''s legal representative against the agent, and Srish Chandra v. Supprovat Chandra, 44 C.W.N. 304 , and Amiya Krishna v. Debendra Lal 46 C.W.N. 865, the former is a suit against a trustee and the latter by a co-trustee against legal representative of his co-trustee.

Then the question arises what is the remedy of the principal against the representatives of the agent. It is not at all tenable that the estate of the agent, who has not tendered accounts to his principal, escapes all liability in the hands of his representatives. It is equally well-settled that the remedy of principal in a case of this description is to sue the representatives of the agent for any losses he may have suffered by reason of the negligence, misconduct, misfeasance or mal feasance of his agent; in other words, the suit is not one for accounts strictly so-called but a suit for money payable by the representatives of the agent out of his assets in their hands, The contention that the liability is personal and has expired, on the death of the agent is not well founded. A suit for recovery of the money misappropriated by a trustee or agent will lie against the legal representatives of the agent and in such a suit the decree will be against the assets of the deceased agent or trustee. A suit for recovery of a specified sum of money, however, does not assume the character of a suit for accounts merely because in the determination of the question in controversy accounts may have to be examined. The sole foundation for a suit for account is the obligation to account and where that does not exist, the suit for money cannot be regarded as a suit for accounts. K(sic)hetranath Banerjee v. Kalidasi Dasi 27 C.L.J. 96 : (A.I.R. 1918 Cal. 1037). The law is well settled now that a case of this description is maintainable by the principal against the agent''s legal representatives. Bindraban Bahari v. Jamuna Kumar 25 ALL. 55 : (1902 A.W.N. 191); Kumeda Charan Bala v. Ashutosh Chattopadhya 17 C.W.N. 6:16 C.L.J. 282, Sashi Sekhareswar Roy v. Hajirunnessa-Bibi 28 C.L.J. 492 : (A.I.R. 1918 Cal. 276);. Rameswar Singh Bahadur v. Narendra Nath Das AIR 1923 pat. 259 : 71 I.C. 916 and Sree Amiya Krishna Khan Vs. Sree Debendra Lal Khan .

In the light of these principles the plaint in this case has to be examined. I may say at the outset that both the Courts below have come to the right conclusion that the present suit is not a suit for accounts but one for recovery of money against the legal representatives of the agent Jnanada Babu. The plaint consists of 10 paras and the first prayer is for a decree for a sum of Rs. 2225-15-9 only with costs and the second prayer is for general or other relief. The plaint states bow the sum claimed in the suit has been arrived at. So on a reading of the plaint one comes to the only conclusion that it is a suit for recovery of money and not for accounts. It is true that the suit has been described at the heading as an account suit and this appears to me, as has been pointed out by the trial Court, that it is a mistake which has been committed by the office of that Court. In construing the plaint, I must look to the substance and not to the form. I hold that this is not are account suit at all but a suit for recovery (sic): money. So the first branch of argument of Mr. Pal on his second contention fails. As regards(sic) the second branch of the argument of Mr. Pal on his second contention, I have already pointed out the law on the subject and the principle governing a case like the present one instituted by the principal against the legal representative of his agent and I hold that this suit for recovery of a specified sum of money against the representatives of the deceased agent and for a decree to recover the said sum from out the assets of the agent Jnanada Babu in if hands of the Defendants is maintainable. So the second branch of the second contention of Mr. Pal is not well-founded and is without any substance.

The main question, which has been seriously argued by the learned advocates of both parties, is the question of limitation. In the facts of this case and in view of the findings, I am clearly of opinion, that the learned Subordinate Judge has arrived at a right conclusion, and I am unable to give effect to the contention of Mr. B.K. De for Appellants and I hold that Mr. Tapendra Kumar Pal, advocate for the Respondent, is right in his contention that the suit is governed by Article 62, Limitation Act. may point out at the beginning that there has been divergence of judicial opinion in different and same High Courts on the point whether in a case like the present. Article 62 or 89 will apply or as contended by Mr. De Article 116 or 120, Limitation Act will apply. In determining this question of limitation, one will have to keep in view the definition of "Defendant" in the Limitation Act which is in Section 2(4) and it is in the following terms:" ''Defendant'' includes any person from or through whom a Defendant derives his liability to be sued." I shall have to keep in view also the language in Articles 62, 89, 115 and 120, Limitation Act, which are as follows:

Article 62: For money payable Three When the money is by the Defendant to years, received. the Plaintiff for money received by the Defendant for the Plaintiff''s use. Article 89: By a principal Three When the account is against his agent for years, during the continuance movable property of the agency, demanded received by the latter and refused or, and not accounted for. where no such demand is made, when the agency terminates. Article 115: For compensation Three When the contract for the breach of any years, is broken, or (where contract, express or there are successive implied, not in writing b reaches) when the registered and herein breach in respect of Specially provided for. which the suit is instituted occurs, or (whore the breach is continuing) when it ceases. Article 120 : Suit for which no Six When the right to a period of limitation is years, sue accrues. provided elsewhere in this schedule.

To decide the point of limitation, I shall have to recapitulate certain facts. Jnanada Babu, predecessor of the Defendants, was the saw agent of the Plaintiffs from 2nd January 1926 till his death on 12th Magh 1345 B.S. corresponding to 26th January 1939. It is also an admitted fact that Jnanada Babu rendered accounts to the Plaintiff partially for the year 1339 B.S., and the present suit was for recovery of a sum of us. 2,220-15.9 from the Defendants, the heirs and legal representatives of Jnanada Babu. The present suit has been filed on 26th January 1942 as 26th January 1942 was a Sunday. It is common ground between the parties and also found by the learned Subordinate Judge that all the money that is claimed by the Plaintiffs under the Mukhtear Sherista was received by Janada Babu prior to 7th Aswin 1345 B.S. corresponding to 24th September 1938. The learned Subordinate Judge says as follows :

It is in evidence in this case that demands were made from Jnanada Babu during his life-time for a sum of Rs. 2,226 entered in the rokar Ex. 2Z (17). There can, therefore, be no doubt that the cause of action arose with effect from the date of this demand, which was made prior to the death of Jnanada Babu. Even if it was made one day before the death of Jnanada Babu, the suit would be barred. I found that the disregard made by Jnanada Babu of the demand amounted to his refusal. I find therefore, that the Plaintiffs'' claim under the account Sherista is also barred by limitation. In this case the breach occurred at the time when the demand was made and the demand was not satisfied.

The contention of Mr. De for the Appellant is that Article 115 applies as held in the case of Kumeda Charan v. Ashutosh Chattopadhya 17 C.W.N. 5 : 16 Cr. L.J. 282 or Article 120 applies as held in Brindraban Behari v. Jamuna Kunwar 25 ALL. 55 : (1902 A.W.N. 191). The reason, of Mr. De is that the cause of action arose on the death of Jnanada Babu on 26th January 1939 and this is a suit within 3 years from that date, so Article 115 applies and the Plaintiffs'' claim is not barred by limitation. In that respect Mr. De is in a serious difficulty because it has been found by the Court of fact that there was demand and refusal during the lifetime of Jnanada Babu and so Plaintiffs'' suit is barred by limitation. It is correct on principle as has been pointed out by their Lordships of the Judicial Committee in Sarinath Chatterjee v. Mothoor Mohun 20 I.A. 183 : (21 Cal. 8 P.C.) and Khuntlal v. Gobind Krishna 38 I.A. 87: (33 ALL. 356 P.C. that the intention of the law of limitation is not to give a right where there is not one, but to interpose a bar, after a certain period, to a suit to enforce on existing right It is equally settled that when a cause of action accrues and limitation once commences to flow it will not cease to flow. Here, in the present case, the finding is that there has been a demand on 24th September 1938 and there was refusal during the lifetime of Jnanada Babu and if that refusal was even one day before his death the suit would be barred even under Article 115, Limitation Act. The only other argument of Mr. De is that Article 120, Limitation Act, applies. But I do not find any reason how this article is applicable when there are other articles governing a case like this. Mr. De''s other branch of argument is that Article 89 does not apply as the suit is not against the agent but against his representative. But I cannot uphold this contention. The cause of action here began not on the death of the agent on 26th January 1939 but on 24th September 1938 when there was demand and refusal, as found by the lower appellate Court and that finding is binding on me in second appeal, hence in any view the suit is beyond three years. The case of Bindraban Bahari v. Jamuna Kunwar 25 ALL. 55 : 1902 A.W.N. 191, is cited. That was a suit by the Plaintiff against the sons of a pleader, who collected Plaintiff''s money. There it was argued that Article 62 or Article 89 applied but that contention of the Plaintiff was overruled on the ground that the suit was not against the pleader but as against the pleader''s representative, and the right to sue did not accrue when the money was received by the pleader but when it was received by the son and on the death of the pleader, and as the suit was within six years of the receipt of money by the father it was in time. This case in my opinion has not been correctly decided and in no way can Act. 120 be applicable as there are other articles in the Act, applicable to that class of cases. In that case the definition of ''Defendant'' in Section 2(4), Limitation Act, has been overlooked. According to the definition the Defendant includes any parson from or through whom a Defendant derives his liability to be sued. To the similar effect is also the decision of Rao Girraj Singh v. Rani Raghubir Kunwar 31 ALL. 429 : (2 I.C. 118), and that was a suit against the sons and grandsons of the agent and it was held that Article 120 applied. There also the definition of Defendant in Section 2(4), Limitation Act, was overlooked. The case of Bindraban Bahari v. Jamuna Kunwar 25 ALL. 53 : (1902 A.W.N. 191), has been dissented from in Parthasarthi Appa Rao v. Subba Rao 50 Mad. 249 : (A.I.R. 1927 Mad. 157) and in Ramhari Kapali v. Rohini Kanta 35 C.L.J. 330:(A.I.R. 1922 Cal. 499) and the case of Rao Girraj Singh v. Rani Raghubir Kunwar 31 ALL. 429 : (2 I.C. 118), has been dissented from in the case of AIR 1943 227 (Nagpur) and I respectfully agree with the aforesaid decisions of the Calcutta, Madras and Nagpur High Courts. The decision of the Calcutta, Madras and Nagpur High Courts seems to be in accordance with well-established principles.

Now if the principal sues his agent during letters'' life-time after the termination of the agency, or when the accounts are demanded and refused and the Defendant agent dies during the pendency of that litigation, then the suit could be continued against the legal representatives. The next position is where the agent dies after the termination of the agency or where there is a demand and refusal in the agent''s life-time. In that event the cause of action will accrue during agent''s life-time and limitation once having commenced to run will not cease to run by reason of the death of the agent. In that event, the agent''s representatives can be sued after his death because the cause of action cannot alter Joy reason of the agent having died. The ''third position is where the agency terminates on the death of the agent. I find no reason why the rule should be different in this case. Again when the case is looked at the other way round, there is no doubt as to what the law is because as has been pointed out by their Lordships of the Privy Council in the case of Nobin Chandra v. Chandra Maihab 44 Cal. 1 : (A.I.R. 1916 P.C. 148) and Bikram Kishore Manikya Bahadur Vs. Jadab Chandra Choudhury and Others, , where it has been held that the suit by the principal''s legal representatives is governed by Article 89, Limitation Act. Though it is a converse case, to the present one, the principle appears to ma to apply. The cases where Article 89 has been applied as against the legal representatives of the agent are numerous and I may mention Parthasarathi Appa Rao v. Subba Rao 50 Mad. 249 : (A.I.R. 1927 Mad. 157), where reasons given in the case of Kumeda Charan v. Ashutosh Chattopadhya 17 C.W.N. 5:16 C.L.J. 282, have been considered and have not been followed. The decision in the case of Parthasarathi Appa Rao v. Subba Rao 50 Mad. 249 : (A.I.R. 1927 Mac.. 157), has been followed in the case of Bikram Kishore Manikya Bahadur Vs. Jadab Chandra Choudhury and Others, , where it has been held that Article 89, Limitation Act, applies to a suit for accounts brought by the principal against his agent as also to a suit brought by the legal representative of the principal against his agent. That Article 89 applies to suit by a principal against the legal representatives of the agent has also been held in the case of Deorao Zolba v. Laxmansingh Bania ILR (1948) Nag. 470 : (A.I.R. 1948 Nag. 227), Mt. Piari v. Kashi Prasad 23 Luck. 65 : (A.I.R. 1949 Oudh 61) and Rameswar Singh v. Narendrnath Das A.I. R- 1923 pat. 259 : 71 I.C. 916.I respectfully agree with the aforesaid decision and do not agree with the decision in Kumeda Chandra Bala v. Ashutosh Chattopadhya 17 C.W.N. 6 :16 C.L.J. 282 for the reason that case overlooks the definition of ''Defendant'' in S. a (4), Limitation Act. Moreover, as I have said that in the present suit the cause of action arose before the death of Jnanada Babu and so the present sail filed on 26th January 1942 is clearly barred by three years rule of limitation in Article 89, Limitation Act. In this connection I may refer to a passage in Brindaban Behari v. Jamuna Kunwar 25 ALL. 55 at p. 56 : (1902 A. w. N. 191), where it has been held that a fresh cause of action arose upon the death of the father, that the suit against the sons would not fall, under Article 89, Limitation Act, because the suit was not against the agent but against his legal representative. With all respect, I must dissent from the view and it can be pointed out that the Limitation Act classifies suits according to their ''description'' and that: a suit of the description referred to in Article 89 may be brought against the legal representative of the agent as well as against the agent himself. The case of Kumeda Charan Bala v. Ashutosh 17 C.W.N. 5 : (16 I.C. 742), is baaed on the case reported in Bindraban v. Jamuna Kunwar 28 ALL. 55 : (1902 A, W.N. 191), and as I dissent from that decision, I respectfully also disagree with the decision in Kumeda Charan Bala v. Ashutosh 17 C.W.N. 5 : (16 I.C.742), cited above.

Then only one other question remains, namely, whether Article 89 applies to this case or Article 62 applies. My answer is that Article 62 applies because the suit here is one for recovery of money only from the legal representatives and in this view I am supported by the decision of Ramhari Kapali v. Rohini Kanta 35 C.L.J. 830 : (A.I.R. 1922 Cal. 499) and the case of Rameswar Singh v. Narendra Nath Das AIR 1923 pat. 259 : 71 I.C. 916 and respectfully following the said decisions I hold that the present suit is governed by Article 62, Limitation Act, and in that view I find that the present suit of the Plaintiffs is clearly barred by limitation.

As the only contention of Mr. De for the Appellants fails, the result is that this appeal is dismissed. In the circumstances of this case I direct that the parties will bear their own costs upto this Court. Leave asked for and is refused.