Case Note:

Limitation Act (IX of 1908), Schedule I, Articles 89, 115, 116, 132 - Suit for accounts--Limitation--"Moveables," if include money--Termination of agency--Question of fact--Omission to render accounts-Refusal.

Mookerjee, J.

1. This is an appeal by the defendant in a suit for accounts. The case for the plaintiff we a that the defendant was employed as his rent-collector from the, 12th December 1907 to the 11th October 1915, although no written agreement was executed and registered till the 5th October 1909. He prayed that a preliminary decree might be passed directing the defendant submit a correct account during his ter(sic) of office and that a final decree might be assed for the amount found due from the defendant on examination of the accounts. The substantial defense was two-fold; amely, first, that the claim was barred by (sic)biitation, and, secondly, that in so far as the claim might be found to be not tarred by Nation the amounts had been duly rendered. The Subordinate Judge has decreed t(sic)l suit and has directed the defendant to (sic)nder accounts for the period between the (sic)its of his appointment and the date of his dismissal. He has further directed the(sic) Commissioner be appointed to determine, on the examination of the account(sic). what amount the defendant would be (sic)liae to the plaintiff. On the present appeal, (sic)e defendant has contended that the claims barred by limitation; and that, in any (sic)ent, the Subordinate Judge should have (sic)eld that accounts had been duly rendered.

2. Article 89 of the Sche(sic)le to the Indian Limitation Act ptovio(sic) that a suit by a principal against his a(sic)t for moveable property received by the (sic)per and not accounted for must be instit(sic)ed wlthin three years from the date wher(sic)he account is, during the continuance of(sic) agency, demanded and refused or whe(sic)no such demand in made when the agency terminates. Article 115 provides that a suit for compensation for the breach of any contrast, express or implied, and not in writing registered and not herein specially provided for, mast be instituted within three years from the date when the contract is broken, or (where there are successive breaches) from the date when the breach in respect of which the snit is instituted occurs, or, where the breach is continuing, from the date when it ceases. Art, 116 provides that a suit for compensation for the breach of a contract in writing registered most be instituted within six years from the date when the period of limitation begins to run in respect of a suit brought on a similar contract not registered. It was argued at one stage that inasmuch as the contract of agency in the present cage was in writing registered, Article 116 was applicable. But there is no foundation for this contention. To make Article 116 applicable, it must be shown, as provided in Article 115, that the suit is of a nature not specifically provided for in the Schedule, Article 69, however, plainly applies to a snit of this description, as the term "moveable property" includes money. Madhusudan Sen v. Rakhal Chandra Das Basuk 30 Ind. Cas. 697 : 43 C. 248 : 19 C. W. N. 1070 : 22 C. L. J. 552; Venkatachalam, Chetty v. Narayanan Chetty 26 Ind. Cas. 740 : 39 M. 376 : 28 M. L. J. 140; Fichu Vadhiar v. Secretary of State 38 Ind. Cas. 986 : 21 M. L. T. 71 : (1917) M. W. N. 20 : 5 L. W. 664 : 40 M. 767 : 18 Cr. L. J. 426 and, consequently, excludes the operation of both Article 115 and Article 116. This view is supported by the deaision of the Judicial Committee in Nobin Chandra Barua v. Chandra Madhab Barua 36 Ind. Cas. 1 : 44 C. 1 : 24 C. L. J. 509: 20 M. L. T 430 : 21 C. W. N. 97 : 14 A. L. J. 1199 : 18 Bom. L. Rule 1022 : 31 M. L. J. 886 : (1916) 2 M. W. N. 565 : 5 L. W. 452 (P. C) which reversed the decision of this Court in Chandra Madhab Barua v. Nabin Chandra Barua 18 Ind. Cas. 735 : 40 C. 108 : 17 C. L. J. 103. A similar view had been taken in the cases of Shib Chandra Roy v. Chandra Narain Mukerjee 32 C. 719 : 1 C. L. J. 232; Hafezuddin Mandal v. Jadu Nath Saha 35 C. 298 : 12 C. W. N. 820 : 7 C. L. J. 279; Madhusudan Sen v. Rushal Chandra Das Basak 30 Ind. Cas. 697 : 43 C. 248 : 19 C. W. N. 1070 : 22 C. L. J. 552. and Venkatachalam, Chetty v. Narayanan Chitty 26 Ind. Cas. 740 : 39 M. 376 : 28 M. L. J. 140., This principle is applicable, as appears from the decision of the Judicial Committee in Nabin Chandra Barua v. Chandra Madhua Barua 36 Ind. Cas. 1 : 44 C. 1 : 24 C. L. J. 509: 20 M. L. T 430 : 21 C. W. N. 97 : 14 A. L. J. 1199 : 18 Bom. L. Rule 1022 : 31 M. L. J. 886 : (1916) 2 M. W. N. 565 : 5 L. W. 452 (P. C)., as also from that of this Court in Bhabatarini Debi Chowdhrani v. Sheikh Bahadur Sarkar 58 Ind. Cas. 675 : 30 C. L. J. 90., even though the contract provides that the accounts are to be rendered from year to year. No doubt, where immoveable property is hypothecated to secure the performance of an obligation undertaken by an agent, a suit by the principal may in essence be regarded as a suit to enforce a charge on immoveable property within the meaning of Article 132 of the Schedule to the Indian Limitation Act and may consequently be governed by the period of 12 years provided by that Article. The present ease, however, is not of that description, and the question of limitation must be answered with reference to the terms of Article 89, which contemplates two distinct starting points, namely, first, when the account is, daring the continuance of the agency, demanded and refused, time runs from the date of refusal; and, secondly, where no such demand is made, time runs from the date of termination of agency, and it is plain that there may be cases where only one of these contingencies has happened. On the other hand, there may be cases where both the contingencies may have happened. It is plain from the evidence that both the contingencies have happened here, there has been a demand and refusal and there also has been a termination of the agency. The results which may be reached in sash a case by the application of the two tests would not necessarily be identical. In the case before up, it is clear that on the 21st April 1914 the plaintiff demanded accounts from the defendant. The demand was embodied in a letter addressed by toe officer of the plaintiff to the defendant in the following terms: "You will clear your account by submitting to the Sadar office the account papers relating to your works up to 1320 B. Section within 30th Baisask. In default take notice that fine will be imposed from the 1st Jaistha." The demand in essence was for accounts to be submitted up to the 12th April 1914 on or before the 13th May 1914, The evidence makes it abundantly plain that the accounts were not rendered as demanded. Consequently there was a refusal, because as was pointed out in Madhusudan Sen v. Rakhal Chandra Das Basak 30 Ind. Cas. 697 : 43 C. 248 : 19 C. W. N. 1070 : 22 C. L. J. 552., which was followed in Bhabatarim Debt. Chowdhurani v. Sheikh Bahadur Sarkar 58 Ind. Cas. 675 : 30 C. L. J. 90., an omission to render account where the account is demanded may operate as refusal. It need not be disputed that, as pointed out in Madhusudan Sen v. Rakhal Chandra Das Basak 30 Ind. Cas. 697 : 43 C. 248 : 19 C. W. N. 1070 : 22 C. L. J. 552., and Bhabatarini Debi Chowdhurani v. Sheikh Bahadur Sarkar 58 Ind. Cas. 675 : 30 C. L. J. 90. where the agent in answer to the demand promises to submit the accounts later, his conduct cannot be deemed to amount to refusal, fiat in the age before up, there was a demand made by the plaintiff on the defendant to render accounts the defendant did not comply with the demand; his conduit Consequently amounted to refusal. The first centinge(sic)res mentioned in the third column of Article 89 consequently happened and the suit in so far as it claims accounts from the defendant up to the 12th April 1914 must be deemed barred by limitation as it has been instituted after the lapse of three years from the date of refusal, that is, the 13th May 1914.

3. The second contingency mentioned in the third column has also happened, became the agency has been terminated. This is a question of fact, as explained in Nagappa Chettiar v. Chidambaram Chettar 36 Ind. Cas. 812 : 31 M. L. J. 687 : (1916), 2 M. W. N. 361: 4 L. W. 455.; Venkatachalam Chetty v. Narayanan Chetty 26 Ind. Cas. 740 : 39 M. 376 : 28 M. L. J. 140.; Muthiah Chetty v. Chithambaram Chetty 38 Ind. Cas. 729 : 31 M. L. J. 688 : 1 L. W. 456 : (1916) 2 M. W. N. 362.; Muthiah Chetty v. Alageppa Chetty 45 Ind. Cas. 430 : 41 M. 1.; Kuppuramy Aiyar v. Verappa Shettiar v. 87 Ind. Cas. 875 : 5 L. W. 375. and is proved beyond doubt by the letter of the 11th October 1915 which was addressed by an officer of the plaintiff to the defendant, and was in the following terms:

"You are dismissed from the post of Tahsildar of Purgana Pustail and Gavraba and Dakhina Runjan Basu is transferred from the post of Tahshildar of Kushidanga and is placed in charge of your office and you are hereby ordered to make over the charge of the original papers, etc, in your custody to she said Basu, to submit the charge sheet signed by both of you and the cash found at your disposal to the Sadar Katchery at Bead-quarters Kumartalah and to render your accounts up to date. Remember that you do not fail in this."

The suit was instituted on the 27th August 1918, that is, within three years from the date of dismissal. Consequently, the plaintiff is entitled to accounts from the defendant other than the accounts demanded on the 21st April 1914. The suit is thus in time for the accounts from the 13th April 1914 to the 11th October 1915. In this connection we have to consider whether the defendant tan ba called upon to pay to the plaintiff money which might have bean found due if accounts could have been ordered m to the 12th April 1914. In our opinion, the answer must be in the negative. No doubt, as was pointed by this court in the case of Sures Kanta Banerjee v. Nawab Ali 29 Ind. Cas. 848 : 21 C. L. J. 462 : 20 C. W. N. 356., when a suit for accounts is decreed, the accounts are not necessarily restricted to the three years proceeding the institution of the suit or three year proceeding the termination of the agency. But in the present case we have already held that by reason of events which have happened the claim for accounts up to the 12th April 1914 had become barred by limitation at the dale of the institution of the suit. Consequently, the defendant can be called upon to render accounts only in relation to transactions which took place after the 12th April 1914 up to the 11th October 1915 when he was dismissed from service.

4. The result is that this appeal is allowed in part and the decree of the Subordinate Judge varied. The decree veil direct that the defendant do render accounts from the 13th April 1914 to the 11th October 1915. We may add that in this view it is not necessary to discuss the question whether the accounts had been rendered for the period ant(sic)rcedent to the 12th April 194, But the respondent admitted that accounts had been rendered and adjusted up to the 13th April 1909 : so that in any event the claim for accounts from the 12th December 1907 to the 13th April 1909 was bound to fail. The appellant is entitled to his costs in this Court but the order for costs made by the Court below will stand: such costs as my be incurred after remand will abide the result.

Buckland, J.

5. I agree.