1. This is a second appeal by the plaintiff. He brought a suit for the recovery of a sum of Rs. 200 which he said he had deposited with the defendant and added to that a claim that the defendant may be ordered to render the entire account to the plaintiff in respect of the latter's business carried on in shellac by the defendant, and on rendition of account a further decree for that amount which may be found due to the plaintiff by the defendant may be passed in favour of the plaintiff. The case of the plaintiff, as developed in the plaint and in the Court below, was that the sum of Rs. 200 was deposited with the defendant on 10th June 1928 and shortly after, the plaintiff instructed the defendant to purchase and sell shellac on behalf of the plaintiff keeping Rs. 200 as a sort of margin money. The defence was that the defendant was never the agent of the plaintiff and that Rs. 200 were never deposited by the plaintiff in the defendant's shop. It was said that the aforementioned sum was deposited by one Mata Prasad and certain transactions in shellac were entered by the defendant on behalf of Mata Prasad and that accounts were subsequently settled and whatever was due to Mata Prasad was paid by the defendant to Mata Prasad.
2. It appears that during the pendency of the suit the parties were examined by the trial Court and it was admitted by them that on account of the transactions of shellac to which reference has already been made a sum of Rs. 467-12-6 was found due from the defendant and the defendant further said that this sum had been paid by him to Mata Prasad.
3. There was a plea of limitation also by the defendant, but the trial Court was of the opinion that the plaintiff's suit was not barred by time, and the payment, if any, made by the defendant to Mata Prasad, in the view which the trial Court took, did not absolve the defendant, because it was the plaintiff with whom the defendant entered into a contract and the payment ought to have been made by the defendant to the plaintiff. On appeal by the defendant the lower appellate Court did not go into the merits of the case but held that the plaintiff's suit was barred by time. The learned Civil Judge observes:
It appears from the evidence of Hingu Lal, plaintiff himself, that some time about the end of 1928 he asked the defendant Sarju Prasad not to enter into any further transactions as he was going out of the station. In other words, he clearly gave intimation to Sarju Prasad, respondent, that the agency was terminated, and that no further transaction should be made. If that is so, it is obvious that the right to recover the money due from the defendant, who was the agent of the plaintiff, accrued in the end of 1928. Under Article 89, Lim. Act, the plaintifi had only three years within which to file a suit, but it was filed about five years later in 1933. The suit is thus clearly barred by limitation.
4. Learned counsel for the plaintiff contends that the view of law taken by the lower appellate Court is erroneous and reliance is placed on the case in 12 All 5411 and on the case in 26 Cal 715.2 In these two cases it was held that the agency does not terminate immediately on the sale of the goods inasmuch as there is a subsequent obligation to account for the sums and to pay them. It was said that where an agent for the sale of goods receives the price thereof, the agency does not terminate with reference to Sections 201 and 218 of the Contract Act, until he has paid the price to the principal and a suit by the principal to recover the price is within time if brought within three years from the date of demand. The argument before me therefore is that in the present case a formal demand was made on 17th May 1933 by means of a registered notice and the suit instituted on 31st May 1933 was therefore not barred by time. In the plaint it is stated that the cause of action for the suit arose in the month of February 1933 on the day on which the money in deposit was demanded. It appears that formerly it was alleged that limitation began to run from February 1933 in connection with the sum of Rs. 200 which was deposited as, what I said, a sort of margin money, but later by a statement dated 30th July 1934, recorded on paper No. 68 C, the case was confined to the recovery of Rs. 467-12-6 due on account of the profits on the shellac transaction, and learned counsel for the appellant asks that for this limitation should run from 17th May 1933 when registered notice was given.
5. There can be no doubt that the appropriate article which governs facts like the present is Article 89 and this was settled by their Lordships of the Privy Council in 24 All 27.3 The only question that remains is as to whether limitation should run from the date of the demand (which is 17th May 1933 in the present case) or from any earlier date. It is provided in Article 89 that a suit by a principal against his agent for moveable property received by the latter and not accounted for should be brought within three years from the time when the account is during the continuance of the agency, demanded and refused, or, where no such demand is made, when the agency terminates. The view taken by the Allahabad High Court and the Calcutta High Court in the cases on which reliance is placed by learned counsel for the appellant was dissented from by the Madras High Court in 39 Mad 376.4 The contending views were considered by the Additional Judicial Commissioner of Sind in AIR 1926 Sind 264.5 The learned Judge after pointing out the conflict says that the Madras case referred to above was approved of by another Bench of the same High Court in AIR 1918 Mad 1325.6 He then refer, ring to the case before him observed:
The Allahabad and Calcutta cases, which I have referred to above, would appear to me clearly distinguishable on the facts from the present case. It was laid down in these two cases that the agency did continue till the agent paid the price of goods entrusted to him for sale but it cannot be overlooked that when an agent is appointed to sell certain goods on behalf of his principal, it is of the essence of his duties as an agent to pay to the principal the amount realized by his sale. But the same principle is not necessarily applicable in the case of a commission agent such as in the present case who is instructed to buy and sell goods on behalf of his principal and on carrying out his instructions the business of his agency terminates. The liability to account must not be confounded with the nature of the agency business. It is important to remember in this case that no goods were con-signed to the defendants for sale by the plaintiffs and I wish, therefore, to confine my decision not as laying down a general principle, but as to the-1 actual facts of this case. For the question of the termination of the agency must depend upon the circumstances of each individual case.
6. I wish to make it clear that I am not laying down any general principle, but I am confining my observations to the facts of the present case. If the contention of the learned counsel for the appellant were accepted it would appear that where an agent is appointed, say even for one particular transaction and that particular transaction has been completed by the agent, that is to say, the profits due to the principal have come into the hands of the agent and no demand is made, there would be no limitation and limitation would begin to run only from the date of the demand even if such demand is made fifty years afterwards. In the present case, however, it is not necessary to emphasize the anomaly of such a contention because my mind it is only the second clause of a third column in Article 89 which applies the facts of the present case. Limitation also begins to run where no demand made from the time when the agency ??? This is irrespective of the ??? of demand and this has got to be ??? on a consideration of the ??? of agency. In the Allahabad and the ??? cases mentioned above, there are no circumstances from which the ??? of the agency could be ??? except the one fact that the ice came into the hands of the agent in ??? with a certain transaction. It as therefore held that fact alone did it terminate the agency. In the present ??? we know that several transactions are entered into by the defendant on behalf of the plaintiff from June 1928 ??? about December 1928 and then the plaintiff distinctly asked the defendant ??? to enter into any further transactions the plaintiff was going out of the ??? On this statement of the plaintiff ??? lower appellate Court came to a ??? of fact that the agency terminated by ??? end of December 1928, and in second ??? it is not possible for me to come ??? a different conclusion on the question ??? to when the agency terminated.
7. That being so, I am of the opinion that he decision of the Court below is right, ??? I dismiss this appeal with costs, leave to file an appeal by way of Letters ??? is allowed.
W.D/A.L
8. Appeal dismissed.