1. This appeal arises out of a suit for accounts by a zamindar against his Tahsildar. It is found that the defendant acted as plaintiff's Tahsildar from 1309 to 1317 B.S, when he left service. He did not render accounts nor did he submit the account papers. The suit was instituted in April 1913. The Court of first instance passed a preliminary decree directing the defendant to render accounts for the entire period. On appeal the learned Subordinate Judge held that the claim for the period 1309 to 1916 B.S was barred by limitation and the defendant was liable to render accounts for Baisakh 1317 only. A suit for accounts against an agent is governed by Article 89, Lim. Act. That article provides that the period of limitation for a suit by
“a principal against his agent for moveable property received by the latter and not accounted for,”
2. Is 3 years from the date when the account is during the continuance of the agency demanded and refused, or where no such demand is made when the agency terminates. It has been held by the Judicial Committee that “moveable property” in Article 89 includes money: see Asghar Ali v. Khurshed Ali Khan (1). The plaintiff therefore was entitled to bring the suit within 3 years of the termination of the agency, unless there was demand and refusal during the continuance of the agency.
3. The learned Subordinate Judge found that the contract was to submit accounts on the expiry of each year, and as accounts were demanded every year and the defendant neglected to render the accounts, such neglect is tantamount to refusal. So limitation of 3 years runs from every breach and as such plaintiff's claim for accounts from 1309 to the end of 1316 is time-barred. The question for consideration therefore is whether a mere failure to render accounts amounts to a refusal within the meaning of Article 89. The question has been considered in several cases in this Court. In Hori Narain Ghose…Defendant; v. The Administrator-General Of Bengal…Plaintiff. (2) the agent, on account being demanded from him, at first promised to render it in Assin 1279 but never fulfilled the promise, and the learned Judges were of opinion that he “virtually refused to render the account at that time.” The suit however was brought in Assar 1282 and was therefore not barred, and the learned Judges in holding that the suit was not barred made that observation. The observation was relied upon in the case of Easin Sarkar v. Barada Kishore Acharyya Chowdhury (3). In the case of Madhusudan Sen v. Rakhal Chandra Das (4) it was held that if there has been a demand, failure to respond to the demand is refusal within the meaning of Article 89. The learned Judge (Mookerjee, J.), however observed:
“there may however be cases where omission to render accounts may not be a refusal within the meaning of Article 89.”
4. On the other hand in the case of Jhapajhanessa Bibee v. Rama Sundari (5) Coxe J., observed:
“I must confess speaking with the greatest respect that I feel some difficulty in holding that the mere neglect to render accounts which the defendant has agreed to render can be deemed to be a refusal within the meaning of Article 89.”
5. Although an express refusal may not be necessary to bring a case under Article 89 (although Dr. Whitley Stokes is of opinion that “refusal” in the Article means an “express refusal:” see Anglo Indian Codes, Vol. 2 p. 987) because the agent may never expressly refuse to render accounts, we are of opinion that the question whether the failure of the agent to render accounts amounts to a refusal within the meaning of Article 89 depends upon the circumstances of each case. The failure to render accounts every year may be due to a variety of reasons, such as illness of the agent or the account papers not being ready. Sometimes the accounts cannot be prepared within a short time after the expiry of the year, and once they fall into arrears there is sometimes considerable delay in rendering accounts. Cases of gomastas not being ready with accounts every year are very common. Sometimes it is due to mere procrastinations. It cannot be affirmed in such a case that the failure to render accounts necessarily amounts to a refusal. In the present case the plaintiff's Naib stated (as pointed out by the lower appellate Court):
“every year we made demand of accounts and he (the defendant) was all along saying that he would render accounts.”
6. The defendant was retained in service and evidently so long as the gomasta was in service, his promise was relied upon. In the absence of any other circumstances, the mere failure to render accounts in the present case did not constitute a “refusal” within the meaning of Article 89, when the defendant all along said that he would render accounts and this distinguishes the present case from the cases mentioned above. The defendant agreed to submit account papers yearly. It is contended that Article 115 applied to the case and as there was a breach of obligation on the part of the defendant at the end of each year, the claim for more than 3 years is barred. It seems to us, however that a suit for accounts and for money due on taking accounts is not a suit for compensation for loss caused by breach of the contract to render accounts. There are no doubt some decisions in support of the view that Article 115 is applicable to such cases: see Mati Lal Bose v. Amin Chand Chattopadhaya (6), Easin Sarkar v. Barada Kishore Acharyya Chowdhury , Jogesh Chandra v. Benode Lal Roy (7) and Jhapajhanessa Bibee v. Rama Sundari , though in the last case Coxe, J., felt some difficulty in
“regarding a suit for accounts or for the sum found due thereon as a suit for compensation for the breach of a contract”
7. On the other hand in the case of Sib Chandra Roy v. Chandra Narain Mukerjee (8) it was held on a review of the earlier authorities, including the decision of the Judicial Committee'in Asghar Ali v. Khurshed Ali Khan , that Article 89 is applicable to a suit for accounts by a principal against his agent. This case of Shib Chandra Roy v. Chandra Narain Mukerjee does not appear to have been considered in the cases of Easin Sarkar v. Barada Kishore Acharyya Chowdhury and Jogesh Chandra v. Benode Lal Roy . Then again the cases of Jogendra Nath Roy v. Deb Nath Chatterjee (9), Hafezuddin Mandal v. Jadu Nath sahu (10), and Chandra Madhab v. Nabin Chandra (11), Madhusudan Sen v. Rakhal Chandra Das show that Article 89 is applicable to such cases: The case of Chandra Madhab v. Nabin Chandra was taken up to the Privy Council [sea Nabin Chandra v. Chandra Madhab (12)] and although there was an agreement in that case to render accounts from time to time, Article 89 was applied to the case. We are accordingly of opinion that the suit is governed by Article 89, although there was an agreement to render accounts every year. The result is that the decree of the Court below is set aside in so far as it disallows accounts from 1309 to the end of 1316. The case will accordingly go back to the Court of first instance in order that accounts may be taken as directed by the preliminary decree of that Court. Costs will abide the result.
V.B/R.K
8. Case remanded.