N.S.K.L. Kulandayan Chettiar vs AR, RM. Omayal Achi and Another

(1) This second appeal arises out of a suit by a principal against his agent for rendition of accounts. The defendant is the appellant, against whom a

preliminary decree for rendition of accounts has been passed.

(2) The plaintiff, S. RM. AR. RM. Ramanathan Chettiar in O. S. No. 157 of 1953 on the file of the subordinate Judge''s Court, Devakottai, sued

the defendant, the appellant herein for rendition of accounts in respect of the agency of the defendant of the plaintiff''s money lending firm at

Rangoon run under the vilasam S. RM. AR. RM. with branches at Dedaye, Kungayangon and Paungde. The defendant was employed as an agent

on a monthly salary of Rs. 160 as per the salary chit dated 7-9-1947. He returned to India on 24-11-1950 and handed over some kurippu

chittais, accounts and some correspondence between him and the plaintiff. The suit was filed on 24-11-1953.

(3) The defendant resisted the suit on various grounds. He contended that the suit was barred by limitation, and he also contended that the suit was

not maintainable as the plaintiff had failed to make a demand upon him for rendition of accounts prior to the instruction of the suit. He denied that

he executed a varthamanam dated 24-11-1950 voluntarily but pleaded that it came into existence as a result of coercion and pressure exercised

upon him by the plaintiff.

(4) During the pendency of the suit the plaintiff died and his legal representatives were brought on record as plaintiffs 2 and 3. The learned

Subordinate Judge on Devakottai dismissed the suit on his finding on issue 5 that there was no demand prior to the suit and that the absence of

such a demand was fatal to the maintainability of the suit. He however negatived the defendant''s contention that Ex.B-8 was not executed by him

voluntarily, and he also negatived the plea of the defendant that the suit was barred by limitation.

(5) The aggrieved plaintiffs, the legal representatives of the deceased Ramanathan Chettiar, preferred an appeal before the District Court of

Ramnad at Mathurai. The learned District Judge while concurring with the findings of the Courts below on the question of limitation and on the

question of the validity of the varthamanaam letter executed by the defendant in favour of the late Ramanathan Chettiar disagreed with the finding

on the question of the maintainability. In the result the learned District Judge allowed the appeal, set aside the decree and judgment of the lower

Court and granted a preliminary decree for rendition of accounts in favour of the plaintiffs. This second appeal has been preferred by the

defendant.

(6) Ex. B-8 dated 24-11-1950 is the varthamanam letter by the defendant in favour of the late Ramanathan Chettiar. Both the Courts below have

found that Ex. B-8 was executed voluntarily by the defendant on the very day he arrived at India when according to the custom of Nattukottai

Chettiar agents, he visited the principal at his residence at Kanadukathan. There is also the evidence to show that on that very date the defendant

executed another letter, Ex. B-7 in favour of the late Ramanathan Chettiar. P.W. 1, Thirumalai Aiyangar, the scribe of Ex. B-8 has been examined

and his evidence has been accepted by the Courts below. There are no grounds for interfering with the concurrent findings of fact holding that Ex.

B-8 was executed by the defendant in acknowledgment of his liability to render accounts to the late Ramanathan Chettiar freely and voluntarily

without any coercion or pressure exercised upon him by Ramanathan Chettiar. Ex. B-8 is as follows :

On 24th November 1950 Varthamanam letter executed and delivered to S. RM. AR. RM. Ramanathan Chettiar avergal residing at

Kanadukathan, Ramanathapuram Dt. by N. S. K. L. Kulandiayan Chettiar, residing at the aforesaid village and district is as follows :

I was doing business as power agent for your firms at Burma. I prepared balance sheets as per accounts for all firms handed over the same to the

substituted Palaniappa Chettiar and came today to this place considering my convenience. Later on, when you send for me at anytime, I shall given

all particulars in respect of my aforesaid work to your satisfaction and settle. If you have sustained any loss on account of my faults, leniency and

mistakes. I shall make good the same. If I fail to give particulars in person and make good the loss as aforesaid, I agree to pay the loss that may be

demanded by you and execute this letter..........

It is unmistakably clear that the defendant acknowledged his liability to render accounts in terms of the Varthamanam letter. Ex. B-8. The

defendant''s contention was that the agency was terminated on 16-11-1950 at Burma itself, and that he handed over charge to his successor,

Palaniappa on 22-11-1950. Ex. B-8 amounts to a valid acknowledgment of the defendant''s liability to render accounts and that was within 3

years after the termination of the agency. Even accepting the case of the defendant regarding termination of the agency of the suit having been

instituted on 24-11-1953 is clearly within the time prescribed under Article 89 of the Indian Limitation Act.

(7) Mr. K. S. Desikan, the learned counsel for the appellant, contended that the suit was nor maintainable as there was no evidence of the

principal, Ramanathan Chettiar, having made any demand upon the defendant to render accounts, and in this connection relied upon the

observations of the Calcutta High in Bharat Chandra Chakrabarty Vs. Kiran Chandra Rai, . The observation of the Calcutta High Court is as

follows :-

On the finding that all the papers have been submitted, the plaintiffs were bound to call upon the defendant to explain the accounts which

apparently they never did; and if the defendant had expressed his willingness to explain the accounts if called upon to do so, and averred that he

had never been so called upon, we would have been bound to dismiss the plaintiff''s suit as being one without a cause of action.

Learned counsel also drew my attention to the unreported decision of this Court in A. S. No. 662 of 1948. This Court observed in that decision

that it was not necessary to consider the correctness of the observation of the Calcutta High Court extracted above. It seems to me to be plain that

where the agency is terminated and the agent fails to render any account to the principal, the principal can maintain a suit against the agent for

rendition of account without being obliged to call upon him to render accounts prior to the institution of the suit. If one might refer to the language of

Art. 89 of the Indian Limitation Act, this position is made clear. The third column of Article 89 provides for two categories of cases; the first

category is in respect of a continuing agent where if the plaintiff wants the agent to render account there must be a demand and refusal by the agent

to furnish the principal with a cause of action to sue. But where the agency itself is terminated no such demand is necessary, as the starting point of

the limitation as provided for under Article 89 is the date of the termination of the agency. In the absence of any evidence of demand and refusal

limitation runs from the termination of agency. Nobin Chandra v. Chandra Madhab, ILR 44 Cal 1 : AIR 1916 PC 148. It is now settled law that

rendition of accounts does not mean physical handing over of the accounts books by the agent to the principal. The defendant has not rendered

accounts to the plaintiff as it is indeed clear by the execution of his own Vardhamanam letter, Ex. B-8, in the case. The finding of the learned

District Judge holding that the suit is maintainable is correct.

(8) The second appeal fails and is dismissed. There will be no order as to costs in this Court. No leave.

(9) Appeal dismissed.