Jogindra Narayan Chaudhuri vs Chinai Muhammad Sircar

Dawson Miller, C.J.—This is an appeal on be half of the plaintiff from a decision of the Subordinate Judge of Purnea, dated the 27th April 1921 dismissing the plaintiff''s claim on the ground that it was time-barred under Article 115 of the Limitation Act. The plaintiff has appealed and contends that the case is governed not by Article 115 but by Arts 88 and 89 of the Limitation Act.

The facts shortly stated are that the plaintiff engaged the defendant as his agent to look after two villages and collect the rents rendering an account to the plaintiff. There were two written agreements in the case one relating to each of the mauzas. The first was executed in the year 1901 and the other one in the following year. The claim is for an account of the collections made between the years 1312 and 1313 B. Section respectively for the two villages and the year 1323 B. Section which later year would cover the period between the middle of April 1916 and the middle of April 1917. The defendant was dismissed sometime in about Assin 1323 that is, in September or October 1917. He has rendered no accounts and the present suit was instituted on the 26th May 1920.

The learned Subordinate Judge before whom the case came for trial took the view that as the relations between the plaintiff and the defendant depended on a contract the case was governed by Article 115. That Article provides for compensation for the breach of any contract, express or implied not in writing registered, and not herein specifically provided for. The period of limitation is three years and the time from which the period begins to run~ is the date when the contract is broken or where there are successive breaches when the breach in respect of which the suit is instituted occurs or when the breach is continuing when it ceases. The learned Judge in arriving at the conclusion that Article 115 applied rather than the earlier Article relied upon the cases of Jogesh Chandra v. Benode Lal Roy 5 Ind. Cas. 59 : 14 C.W.N. 122, and Easin Sarkar v. Barada Kishore Acharyya Chowdhury 5 lnd. Cas. 186 : 11 C.L.J. 43. With regard to the former case a registered contract was relied upon, as bringing the case not within Article 115 of the Limitation Act but within Article 116. Now Article 116 is not an Article which like the one immediately preceding applies only to cases not specially provided for in other parts of the Schedule. It applies to compensation for the breach of a contract in writing registered and it may well be that in a case of a registered contract that Article which gives six years as the period of limitation is to be preferred to Article 89 which limits the period to three years only. Whether that interpretation of the Act is right or wrong we are not concerned with it in the present appeal. The question for determination here is whether Article 115 which relates to a contract not in writing registered, not specially provided for in other parts of the Schedule is to be given preference to Article 88 and Article 89 where the suit clearly falls within those Articles. The first of the cases, therefore, relied upon by '' the learned Subordinate Judge does not appear to me to be any authority for the view which he appears to have taken in this case. It is true that in that case there is a dictum to the effect that where there is a definite contract to account at the end of the year the proper Article would be Article 115 as the contract would be broken by the failure of the agent to account at the end of each year but it must be noted that in that case the contract was in writing and registered, and the Article which was applicable was Article 116. the aictum to which I have referred was based apparently upon the case of Mati Lal Boat v. Amin Chand Chattopadhay 1 C.L.J. 211, a case in which again there was a dictum to the effect that Article 115 would override the provisions of Article 89 where both were applicable. This, however, was merely a dictum because the question in dispute in that case related to the effect of Article 116 upon the earlier Article, namely, Article 89 and it was not necessary for the Court in that case to consider what the effect would be in a case coming under the Article.

In the other case relied upon by the learned Judge, namely, Easin Sarkar v. Barada Kishore Acharyya ChoWdhury 5 Ind. Cas. 186 : 11 C.L.J. 43. again it was proved that there had been a demand and-a refusal to render an account more than three years before the suit was brought and, therefore, it was of no moment whether Art 89 or Article 115 was applied. It has not necessary, therefore, in that case to consider the question tinder which of these Articles the suit came The matter, however, has been considered by other decisions in the Calcutta High Court and I need only refer to that of Shib Chandra Roy v. Chandra Narain Mukerjee 32 C. 719 : 1 C.L.J. 232. That was a suit by a principal against his agent for an account and for recovery of money from him that might be found due. It was held there that it was a suit for moveable property received by the "gent on behalf of the principal and not accounted for and was. Governed by Article 89 of the Schedule to the Limitation Act, The learned Judges there pointed Out that the castes to which I have already referred dealt merely with Article 116 and were no authority for the proposition that Article 115 would override Article 89 and in the result they found the Article 89 was the proper Article to apply "in such cases. If that is the proper Article to apply in the present case and, in my opinion, it undoubtedly is, then it would appear that the present suit is not barred by limitation. The learned Judge seemed to think that it was barred upon the allegations in the plaint and without taking any evidence he decided the suit against the plaintiff. He seems to have relied upon certain allegations in para. 4 of the plaint which states that "Notwithstanding the fact that he was repeatedly asked to submit collection and nikas (adjustment) papers he did not do so nor is he inclined to submit them. There fore in Asin 1321 of the Bangla year, the plaintiff dispensed with his services in connection with the collection and realisation of the said mauzas." The learned Judge seems to have assumed that these repeated applications were applications made at the end of each financial year or that they were at all events at some period anterior to the time when the last collections were made and certainly anterior to three years from the time when the plaintiff brought his sift. There is nothing, however, in the plaint to indicate that any demand was made more than three years before the beginning of this suit. The suit was brought within three years from the date when the defendant''s services terminated. Therefore the suit is prima facie in time unless it can be shown that some demand was made before that date with regard to all or some of the sums due for the years in question and that that demand was refused. That is a question of fact which will have to be gone into at the trial and, in my opinion, there is nothing in the plaint from which any such inference can be drawn. The appeal is allowed, the decision of the preliminary point arrived at by the Trial Court is set aside and the case is remanded under Order XLI, Ruler 23 of the C.P.C. to the Trial Court for decision of the other issues in the case.

Foster, J.

I agree.