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Article 89 in The Constitution Of India 1949
Article 90 in The Constitution Of India 1949
The Limitation Act, 1963
Article 120 in The Constitution Of India 1949
Article 36 in The Constitution Of India 1949

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Patna High Court
Devji Shivji vs Mohanlal Odhabji Thacker And Ors. on 27 October, 1959
Equivalent citations: AIR 1960 Pat 223
Author: Ahmad
Bench: K Ahmad, H Mahapatra

JUDGMENT

Ahmad, J.

1. Tins appeal is by the sole plaintiff Devji Shivji. It arises out of a suit wherein the main allegation made is that the defendants as the agents of the plaintiff had sold many of his shares but so far have not rendered any account of the same or paid their sale price. Hence the claim for account of the various sums alleged to have been received by the defendants from the sale of shares belonging to the plaintiff. The defendants are three who have been impleaded here as respondents. They are (1) Mohanlal Odbaibji Thacker, (2) Karasandas Ramji Thacker and (3) Mohanlal Karasandas and Co., a firm owned and run by the first two of these defendants.

2. Srimati Kamala Bai, who has been examined on commission as P. W. I in this case, is the second wife of the plaintiff. By the first wife, who is dead, the plaintiff had a son Pranjivan Devji and a daughter who is married to defendant No. 2 Kar-sandas Ramji Thacker, Pranjivan Devji sometime in the early part of 1947, when he was still a bachelor of 23 or 24 years, contacted tuberculosis and ultimately on 6-3-1948, while he was a patient in the Pandra Road Sanitorium, succumbed to the disease. It, however, appears that in his life-time his marriage had already been settled with the sister of defendant No. 1 Mohanlal Odhavji Thacker.

3. The plaintiff in the year 1947 had a number of businesses at Jharia including that of purchase and sale of shares. His claim is that the shares, which he then held, were worth several lakhs of rupees; some of those were in deposit with the two banks at Calcutta, namely, Allahabad Bank Ltd., and Chartered Bank of India, Australia and China Ltd., while some others, it is said, were in deposit in his office at Jharia.

4. It is not denied that on 21-9-1947, the plaintiff executed a general power of attorney in favour of three persons, namely, (1) defendant No. 1, (2) defendant No. 2 and (3) iris second wife Srimati Kamala Bai. That is exhibit 3 on the record. Therein the plaintiff inter alia states:

"I appoint them to be my the and lawful attorneys to do for me and on my behalf and in my name and in the name of the aforesaid Devji Shivji and Co, and Devji Shivji and Sons and of my Jealgora Gobindpur Colliery and in the matter of my concern in the aforesaid Ratibaty Collieries (1943) Ltd., the following acts and deeds and things."

I think it is not necessary to quote here the list of these specific acts, deeds and things for so far as the present' controversy is concerned, all that is important and relevant to note in that connection is that expressly, as the terms of covenant suggest, the agency created thereunder was confined to the acts, deeds and things of four concerns alone, namely, (1) Devji Shivji and Co., (2) Devji Shivji and Sons, (3) Jealgora Gobindpur Colliery and (4) Ratibaty Collieries (1943) Ltd.

In other words, there was no reference made therein about the dealings in purchase and sale of shares, Rightly, therefore, I think, the trial court has held that though "the plaintiff had a business in respect of sale and purchase of shares but the power of attorney was not in respect of the business of shares." But this much at the same time is definite that on 16-11-1947, the plaintiff under certain letter, which unfortunately is not on the records, did give authority to defendant No. 1 to take delivery from Allahabad Bank Ltd., Calcutta, and Chartered Bank of India, Australia and China Co. Ltd., Calcutta, of those shares which were in deposit there and that on the basis of that authority, defendant No. 1 did take delivery of those shares of the plaintiff on 28th November, 1947, from Chartered Bank of India, Australia and China Co, Ltd. and on 28-1-1948 from Allahabad Bank Ltd., Calcutta, and that ultimately, thereafter, all these shares along with those, which were then lying in the office at Jharia, were sold in the market,

5. The claim of the plaintiff is that the sale of these shares had been effected by defendant No. 1 as his agent but so far no account of the sale money has been rendered to him either by defendant No. 1 or defendant No. 2. Hence the suit, as already stated, for accounts against both.

6. In the plaint, a complete list of all these shares is given under different schedules. Schedule A covers those shares which had been received by defendant No. 1 from Allahabad Bank Ltd., Calcutta; Schedule B gives those shares which had been received by him from Chartered Bank of India Australia and China Co. Ltd., Calcutta; and Schedule C mentions those which were then in deposit in the office at Jharia.

7. In appeal, however, the claim of the plaintiff has been confined by Mr. Chatterji, appearing for him, to the sale price of snares having the face value of Rs. 19,000/- only, which, as stated in the plaint, included the following:

"1. 100 shares of Sone-Valley Portland Cement.

2. 300 Dhemo Main Collieries.

3. 100 Bararee Coke,

4. 503 Rohtas Industries.

5. 45B Class preference Rohtas.

6. 100 South Karanpura Collieries.

7. 5 second red preference National Tobacco."

8. Now, as to these shares, which had face value of Rs. 19,000/-, it is not denied by any of the two defendants 1 and 2 that they had been sold by defendant No. 1 at a profit of about Rupees 3,000/- to some party at Calcutta and that their sale price, which perhaps was to the tune of Rupees 22,436/4/-, was thereafter on 13-2-1948, deposited in the Lloyd's Bank Ltd., Calcutta, in the name of the defendants' firm, defendant No. 3 Mohanlal Karsandas and Company.

9. Their defence, however, is that in the matter of the plaintiff's shares the defendants never acted as his agents and that at no time any of his shares and much less the aforesaid shares having face value of Rs. 19,000/- were ever sold either by defendant No. 1 or defendant No. 2 on behalf of the plaintiff. According to them, "the correct facts," as pleaded in the written statement,

"arc that the plaintiff had deposited a good many shares with the Allahabad Bank Ltd., and the Chartered Bank of India, Australia and China, Calcutta, as security against overdraft accounts in his name in said Banks. The plaintiff desired to withdraw these shares from the Banks and sell them with a view to close these dealings and conceal them from the Income-tax Department in order to evade the assessment of income-tax. But as the banks would not part with the shares deposited with them as security unless the plaintiff had paid the amounts due by him in overdraft account and the sum of Rs. 30,000/- was due by the plaintiff to the Chartered Bank at the time and the plaintiff had not sufficient funds with him to repay the same, he agreed to sell at Rs. 19,000/- and deliver to the defendants"

the aforesaid shares.

"The defendants thereupon paid the sum of Rs, 19,000/- to the plaintiff and according to his directions the defendant No. 1 deposited the amount to his credit in the Chartered Bank of India on 19-11-47. The plaintiff wrote to the Chartered Bank and the Allahabad Bank Ltd., to deliver the shares lying in deposit with them to the defendant No. 1. Accordingly the Banks delivered the shares to the defendant No. 1 on or about 28-11-1947. After receiving the shares from the Banks the defendant No. 1 delivered them to the plaintiff. During the months (of) January and February, 1948, the plaintiff sold some of these shares himself to Messrs. Modi and Co., Messrs. Kishen Chand Jhun-jhunwalla and Messrs. Dinanath Nayar all of Calcutta in his own name and also soid some others through his son P. D. Parkeria with the Eastern Bank Ltd. Calcutta. The plaintiff also delivered to the defendants the shares which he had sold to them along with transfer forms duly signed by him. The defendants sold these shares at a profit of about Rs. 3,000/- to the Calcutta parties mentioned above.

The particulars and details of these transactions were entered in plaintiff's share account books which remained in office in his possession and are now in his custody. At the time the defendant No. 1 severed connection with the plaintiff's affairs i. e.. on 30-3-48 the plaintiff took over from him all the unsold shares which were lying in the office and asked his attorney, his wife Kamala Bai, to grant him a receipt in respect thereof and thereupon the said Kamala Bai granted the receipt."

In other words, the defendants have pleaded that the shares worth Rs. 19,000/-, which they sold in the month of February 1948, had been sold by them as their property which they had purchased from the plaintiff arid for which they had already paid Rs. 19,000/- by depositing that amount in the bank in his account. Therefore, according to the defendants, they are not liable in law either to render any account of the sale price of those shares or to recompensafe the plaintiff for the same. Further the plea of defendant No. 1 is that the agency, if any, that he had on behalf of the plaintiff terminated on 31-3-1948, on which date he not only having rendered a full and complete charge of all the assets that he had with him as the plaintiff's agent left Jharia for good but also got a receipt in proof of the acquittance of that agency from the plaintiff's wife Srimati Kamala Bai as directed by him; and so far as defendant No. 2 was concerned, he ton thereafter in May 1948 left Jharia for good and even while he was there, he never acted as the plaintiff's agent nor dealt with any of his affairs and much less with that of his shares. Thus, according to them, apart from the fact that defendant No. 2 had already rendered a full and complete charge of the agency to the plaintiff on 31-3-1948, the suit as now framed is barred by time. Therefore, neither in law nor on facts they are liable to render any account to the plaintiff.

10. On these facts, the main questions that arise for consideration are:-- (1) whether, if not expressly at least by implication, these defendants, either the one or the other or both ever acted as agent or agents of the plaintiff in the matter of shares; (2) whether the aforesaid shares worth Rs. 19,000/- had been in fact sold to the defendants and they in lieu thereof had paid Rs. 19,000/- to the plaintiff by way of deposit in his account; (3) whether the agency, if any, at least that of defendant No. 1, terminated on 31-3-1948, as claimed by him and (4) whether the suit as framed is barred by time.

11. On the question of agency the trial court relying on two letters (exhibits l(b) and B(4), the former from Mohanlal Odhavji to Pranjivan and the latter from one S. C. Paul to Mohanlal Odhavji (defendant No. l), and the receipt (exhibit A) dated 31-3-1948, granted by Srimati Kamala Bai to de- fendant No. 1 as also on the oral testimony of (1) S. G. Paul (P. W. 1), (2) Devji Shivji (P. W. 4} and (3) Srimati Kamala Bai (P. W. 1 on commission) has as about defendant No. 1, found that-

".... defendant No. 1 at least was dealing with such shares of the plaintiff as were specifically made over to him. ....."

But as for defendant No. 2 it has held that-

"There is no iota of evidence on the record which will show that this defendant No. 2 ever intermeddled in any way with the shares of the plaintiff."

In my opinion, on the facts and circumstances of this case, both these findings are unassailable and there is no good ground made before us to hold, as stressed on behalf of the respondents, that so far as defendant No. 2 is concerned, the finding given by the trial court is in any way erroneous. In law agency may be either express or implied. Here there are sufficient facts to establish that though under the power of attorney (Exhibit 3) there was no express agency constituted either in favour of defendant No. 1 or defendant No. 2 with regard to the plaintiffs dealings in shares but it appears that in due course of time, may it be due to the reasons of the precarious health of Pranjivan Devji, who ultimately died, or may it be due to income-tax troubles, this part of the plaintiffs business also finally had to be dealt with by defendant No. 1; otherwise it is difficult to follow as to why of all the persons he was the man chosen for taking delivery of the shares from the banks and then why it was to him that some of the correspondence had been addressed in connection with the sale of some of those shares, if not all. Therefore, the finding of the trial court as to the agency of defendant No. 1 has to be affirmed.

Mr. Chatterji, however, appearing for the plaintiff, has laid great stress on the fact that if that is so then there is no reason why the same conclusion should not be drawn against defendant No. 2 as well. In my opinion, this part of his contention is without substance. There is not a single documentary evidence on the record to suggest that defendant No. 2 ever dealt with the shares or Had anything to do with them. All that has been brought on the record to connect defendant No. 2 with the shares is that the sale price of those worth Rs. 19,000/- had been deposited in the banks not only in the name of defendant No. 1 but jointly in the names of both. But for that, what has been stated in the written statement by way of explanation is I think quite convincing.

Further I shall presently show that the probabilities are more in favour of the conclusion that those shares worth Rs. 19,000/- had been already sold to the defendants and that in lieu thereof they had already paid Rs. 19,000/- to the plaintiff by way of their consideration. In these circumstances, if subsequently those shares were sold by the defendants and their sale money deposited in the joint names of defendants 1 and 2, that cannot be a ground for holding that defendant No. 2 also had dealt with those shares on behalf of the plaintiff or as his agent. Therefore, the other finding also as given by the trial court that in any case defendant No. 2 never acted as the agent of the plaintiff in the matter of shares is equally unimpeachable.

12. Then comes the other question, namely whether the shares worth Rs. 19,000/- were ever sold to the defendants as claimed by them and that the sale of those shares which they subsequently effected in the market was on their behalf and not on behalf of the plaintiff or as his agent. In this connection the most important evidence that has been brought on the record on behalf of the defendants is the statement of the plaintiffs bank accounts. They unmistakably show that on 19-11-47, there had been a deposit made of a sum of Rupees 19,000/- to the credit of the plaintiff in the Chartered Bank of India. As a matter of fact, even the plaintiff; in spite of all his prevarications could not, when, pressed in cross-examination, give any straight denial to this fact, rather had to content by saying only this much that-

"I do not know if I owed about Rs. 70,000/- to Chartered Bank and Allahabad Bank on account of overdraft in 1947."

Then this story of the overdraft also gets full support from what Kanti Kumar Mazumdar, B. S. Malhotra and Prodyat Kurnar Mukharjee, examined on behalf of the plaintiff, deposed in court. The plaintiff, however, in answer to this part of the case has contended that the overdraft, even if any, had been made up with the banks out of his own fund of which Rs. 19,000/- was only a part and that the claim made by the defendants that this Rs. 19,000/-was the price paid to him by the defendants for the purchase of the aforesaid shares worth Rupees 19,000/- is utterly untrue. Thus the controversy about these shares worth Rs. 19,000/- in the final analysis boils down to the consideration whether the sum of Rs. 19,000/- which had been deposited to the credit of the plaintiff in the Chartered Bank of India on 19-11-1947, was the money that came from the account of the plaintiff or that it had been paid from the pocket of the defendants.

If the defendants had paid it out of their own money, as claimed by them, then the irresistible conclusion is that it was given by way of price of those shares worth Rs. 19,000/-; for firstly on the facts of this case there is no third story about the source of that amount and secondly it cannot be denied that this amount was paid otherwise the banks could not have released those shares and delivered them to defendant No. 1. Now the question as to who paid this amount could have been very easily cleared up if the plaintiffs accounts had been brought to the notice of the court, for there mast have been some entry made as to how this sum of Rs. 19,000/- which was paid to the bank on 19th November. 1947, came in the coffer of the plaintiff.

Unfortunately these account books of the plain, tiff have not been brought on the record. The explanation given by the plaintiff'is that they are not with him and, as asserted by Mr. Chatterji, they were perhaps left with the defendants. I think there is no substance in either of these explanations given on behalf of the plaintiff otherwise there is no reason why no such claim is to be found anywhere made either in the plaint or in the deposition given by the witnesses including the plaintiff and his wife and that in spite of the positive statement made in the written statement to the effect, as already quoted above, that-

"The particulars and details of these transactions were entered in plaintiffs share account books which remained in office in his possession and are now in his custody."

It is true that the plaintiff in his evidence has stated that "there was no share account book in my office. But this statement is too vague and in any case it cannot mean that books of account were there but they were removed by the defendants. What perhaps he means to suggest by this statement is that though he was in business since 1920 or 1922 and in shares alone his dealings amounted to lacs but that he never maintained any account of those transactions. This on the very face of it is not worthy of acceptance. After all, the entire adventure in business centres round the idea of profit and this can be known only if there are proper accounts maintained of those adventures.

Secondly the claim made by the plaintiff that ''there was no share account in my office" is quite inconsistent with the claim of Srimati Kamala Bai when she stated that ''the account books were in the Jharia office in the charge of the defendants." Then, though he says- that he did not sell the shares to the defendants but does not explain as to how he was in a position to pay up the entire overdraft account and more particularly the aforesaid sum of Rs. 19,000/- I have carefully gone through his evidence and the evidence of his wife.

To me it seems that this entire litigation has been set up by the plaintiff's wife and so far as the plaintiff is concerned, he is either in fact, as asserted by his wife, not much in touch with the business or that he has allowed himself with a design to be swayed by his wife and is, therefore, out to state what is put into his mouth, whether true or untrue. Therefore, no reliance can be had, as found by the trial court also, either on what he says in the witness box or what his wife has claimed in support thereof. Therefore, their evidence, as already stated, cannot be acted upon with any confidence; and if that evidence is discarded from consideration, there is nothing left on the record in proof of the plaintiff's case.

Further the facts stated by the plaintiff and his wife as also those made by other witnesses examined on their behalf clearly establish that the office at Jharia was being looked after not only by the defendants but also by the plaintiff and his wife and then the circumstances in which the receipt (Exhibit A) is said to have been issued also lend support to the conclusion that at least none of the account books, which must have been usually kept in the office could be ever removed or was ever removed from there and much less by the defendants. Srimati Kamala Bai in her evidence has admitted that "In Jharia both our residence and office were in the contiguous buildings" and further that "All papers and account books of the business used to remain in the office."

Lastly she has also claimed that "Our office was all along in Jharia. My husband used to attend Jharia office from Dhanbad," Therefore, the claim now made on behalf of the plaintiff in the course of the hearing that the reason of non-production of the account papers was that there was no such account maintained in the office or that if there was any, that has been removed by the defendants, cannot be accepted as true. That being so, there is no escape from the conclusion that these account books have been purposely withheld by the plaintiff and that with a view to avoid the scrutiny of the claim made by the defendants in this case.

This, therefore, leads to the question whether in such circumstances any adverse inference can be drawn against the plaintiff for non-production of these important relevant documents. Mr. Lal Narayan Sinha appearing for the defendants has in the course of his argument on this point drawn our attention to the decisions in Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6, Rameshwar Singh v. Bajit Lal, AIR 1929 PC 95 and Hiralal v. Badkulal, AIR 1953 SC 225 and relying on them as also on the rule of best evidence, has contended that for the reasons stated above, not only an adverse inference has to be drawn against the plaintiff but the case as advanced by the plaintiff in this case as to the shares worth Rupees 19,000/- has to be rejected outright.

13. In AIR 1917 PC 6 Lord Shaw, while dealing with the production of best evidence has observed:

"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough; they have no responsibility for the conduct of the suit; but with regard to the parlies to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition." The present, I think, is a good instance of this bad practice. Here the plaintiff could easily produce the account books and show therefrom that the source of the sum of Rs. 19,000/- deposited in the bank on 19-11-1947, in his account was his personal fund and not the cash from the defendants. On the same line is the observation made by Lord Blanesburg in AIR 1929 PC 95. Therein his Lordship while dealing with the question of non-production of best evidence accepted the principle as laid down in the aforesaid case of AIR 1917 PC 6, and observed:

'In the change of attitude on the part of the defence and in its failure to produce documents presumably available and probably decisive one way or another if examined, the learned Judges saw a design on the part of thee defendant to take advantage of the abstract doctrine of the burden of proof upon a plaintiff in ejectment.

Their Lordships, in agreement with the High Court, consider that the excuses made by the defendant for the non-production of these documents are unsatisfactory and unreliable, and, like the learned Judges of the High Court, they consider that their non-production is due to the fear that, if produced, they would either establish the plaintiff's claim, or, in view of the defendant's admission as to the existence somewhere within the village of three jotes of the plaintiff or the area assigned would lead to a successful claim, albeit in another suit, which would be more serious for the defendant than that made in this suit."

It is true that in that case the papers had been called for from the defendant but he in spite of taking time for complying with the same ultimately failed to do so. That, however, in my opinion, does not make any difference. The crux of the rule lies in. the fact that if a party to an action is in possession of the best evidence, which one way or other is decisive on the fact in issue then there is a heavy duty cast upon him to assist the court with the same and that notwithstanding what the abstract doctrine of the onus of proof may suggest about it. And in case he fails to produce it without any reasonable justification, whether called upon to do so or not, then in law it is open to the court to draw an adverse inference against him for that reason. That has been reiterated by the Supreme Court also in AIR 1953 SC 225. Therein the relevant passage on this point reads as follows:

"An inference from the statement of Hiralal can easily be raised that the balance entry of Rupees 34,000 also existed in his own books. Mr. Bindra tried to get out of this situation by urging that it was no part of the defendants' duty to produce the books unless they were called upon to do so and the onus rested on the plaintiffs to prove their case. This argument has to be negatived in view of the observations of their Lordships of the Privy Council in AIR 1917 PC 6, which positively apply here ......This rule was again reiterated in AIR 1929 PC 95.

Therefore, these weighty pronouncements of the highest tribunal make it unequivocally clear that the rule of procedure, as laid down in AIR 1917 PC 6, is not rested on the principle that the document though called for was not produced; rather it is based on the absolute principle of best evidence and that applies independent of the consideration whether the party in possession thereof has been called for. or not by the other side to produce the same.

14. As against these authorities, our attention has been drawn by Mr. Chatterji to another decision of the Privy Council in Bilas Kunwar v. Desraj Ranjit Singh, ILR 37 All 557: (AIR 1915 PC 96) wherein the judgment was delivered by Sir George Farewell. While dealing with the books of account therein, his Lordship observed:

"The High Court Judges 'attach great significance' to the non-production of the books showing the accounts of the general estate, and appear to draw an inference therefrom adverse to plaintiff's claim; any such inference is, in their Lordships' opinion, unwarranted. These books do not necessarily form any part of the plaintiff's case; it is of course possible that some entries might have appeared therein relating to the bungalow. But it is open to a litigant to refrain from producing any documents that he considers irrelevant, if the other litigant is dissatisfied, it is for him to apply for an affidavit of documents, and he can obtain inspection and production of all that appear to him in such affidavit to be relevant and proper.

If he fails so to do, neither he nor the court at his suggestion is entitled to draw any inference as to the contents of any such documents. There is no ground for any inference such as is made in the High Court that the books, if produced, would have shown rent credited to Jagmag or set off against some claim against her. They related to a different property, and the possibility of entries relating to the bungalow therein is very remote, but even if it had been greater, the court was not entitled to draw any such inferences. It is for the litigant who desires to rely on the contents of documents to put them in evidence in the usual and proper way; if he fails to do so no inference in his favour can be drawn as to the contents thereof."

It is true that prima facie in a way there appears to be some conflict between this passage and what has been stated in the foregoing decisions. But in my opinion, this part on the observation made in the judgment has to be read in the context and if that is so read, there is no inconsistency left between them. In that case the entry in the general accounts could not be anyway decisive on the question of farzi as raised there; it could at best be only relevant or a link in the chain of evidence but in no case decisive on the point in issue.

It was for that reason that it was observed therein that if in the opinion of the party who was in possession of a document, the book of account was irrelevant, it was not necessary or incumbent on his part to produce the same, and, therefore, the non-production of it could not lead to any adverse inference against him. In other words, in that case the entry in the book of account was not the best evidence either to support or rebut the claim in issue between the parties. Here the position is just the opposite; for once it is found that the books of account in the possession of the plaintiff are reliable then it is decisive on the question as to whether the sum of Rs. 19,000/-, which was deposited in the bank in the account of the plaintiff on 19-11-1947, had come from his income or that of the defendants, or, in other words, as to whether the shares in issue had been sold to the defendants or not,

Thus, on the facts of this case, the entry in the books of account was the best evidence and not only a piece or a link in the chain of evidence on that question. That being so, in my opinion, the rule of law, as laid down in ILR 37 All 557: (AIR 1915 PC 96), cannot apply to the facts of the present case; and if that is so then the contention of Mr, Lal Narayan Sinha has to be accepted that here there is no valid explanation given as to why the account books that were there in the possession of the plaintiff were not produced at the trial, and the explanation, even if any, that is there, as already held, is not worthy of acceptance.

Therefore, there is no reason why in law an adverse inference should not be drawn against him. It is true that the same may be said about the defendants also. But unfortunately in their case there is no positive statement made that they had any large business of their own. On the contrary, their claim is that both of them had taken out money from their family chests to pay this price of Rs. 19,000/-to the plaintiff. In those circumstances, the presence of any account book with them in proof of those advances cannot be inferred with any certainty. Further the straightforward way in which both of them deposed in this case does not seem to be consistent with the plaintiff's case that this Rupees 19,000/- was not the defendants' money.

For all these reasons, I have no hesitation to hold that the story as set up by the defendants about the purchase of shares worth Rs. 19,000/- is true and what has been stated by the plaintiff contrary to it is not the least worthy of reliance. That being so, I think the claim of the plaintiff as advanced here for the sale price of the shares worth Rs. 19,000/- has to be rejected.

15. Further, I think it is difficult to accept, as contended by the plaintiff, that what happened on 31st March, 1948, was not either ia law or fact a complete discharge and acquittance of the agency, which defendant No. 1 had for the plaintiff in the matter of sale and purchase of shares. Therefore, that also lends support to what I have just found, otherwise in the ordinary course there should have been mentioned in the receipt (exhibit A) that so far as the cash account was concerned that was yet to be rendered. But there is no mention therein of this fact or any fact which may have indicated that the charge given on that day was not complete or full.

As for the claim made by Srimati Kamala Bai that it had all been written at the dictation of defendant No. 1, the least that I can say is that it is not true. The entire facts and circumstances on the record and not less her deposition clearly show that she is a woman who is quite well versed in affairs of life and not one who could write that receipt without knowing the full implication of the same. There was already the proposal, as stated above, that Pranjivan would be married with the sister of defendant No. 1, which I think must have materialised most likely before he contacted T. B. So perhaps it was this which had made him agree to look after the plaintiff's business while he was for one reason or other not in a position to run it himself.

That being so, one can easily understand that the moment the possibility of that mortgage was ruled out by the cold hands of death, there was no interest left for defendant No. 1 to keep himself any further involved in the business of the plaintiff and that without any remuneration as the evidence shows. Therefore, I see no reason not to believe him when he says:

"When the son of Devaji died, I severed connection according to custom of the caste. The next day, Devaji and his wife took the key of the office from us. After a few days, they asked for the account of 200 aluminium shares missing. I said that these shares had been negotiated through Pal Babu and the amount might have been deposited if sold. I then took this receipt, Ext. A from plaintiff's wife.

I was at Amritsar from April to June 1948. The plaintiff never demanded any account from me. I am not liable for any account.''

Exhibit A referred to in this statement, is dated 31st March 1948 and it is not denied that it does not bear the signature of Srimati Kamala BAI. The statement of Srimati Ramala Bai about this receipt is in these words:

"After one or two days from the death of Pranjiban, defendant No. 1, left work leaving the key. Three weeks after, defendant No. 1 delivered the shares as per list filed by him in Court. I signed the receipt in the Jharia Office,"

It is, however, true that thereafter she added a rider also to it, namely that:

"It is not a fact that receipt was granted After final accounting. In my opinion the first part of this statement when read in the context of events, as narrated above; conclusively shows that on the death of Pranjivan there was no heart left for defendant No. 1 in the work of the plaintiff and, therefore, he soon thereafter rendered a complete charge of the plaintiff's business as is evidenced by Exhibit A, and then left Jharia for good. In law agency may be terminated even by renunciation which may be either express or implied. But here the renunciation was a matter of fact express instead of being implied as is evident not only from what Srimati Kamala Bai has stated in the witness box but also from the receipt granted by her to defendant No. 1.

Therefore, I agree with the trial court that the agency even if any which the defendant No. 1 had on behalf of the plaintiff in relation to the sale and purchase of his shares terminated on 31-3-1948 and not thereafter in May 1948 as claimed by the plaintiff. It is true that if agency had continued up to May 1948 and if during the continuance of that agency the accounts had been refused when demanded then in that case the time of refusal would have operated as the starting point for limitation, as contemplated in Article 89 (First Schedule) of the limitation Act; but here when the agency had already come to an end on 31-3-1948, may it be by renunciation or otherwise, any amount of demand thereafter for accounts, though coupled with refusal, would not in law provide any new starting point for such limitation.

Further even the story set up by the plaintiff that there was a demand made by him for accounts from defendant No. 1 on or sometime near about 14-6-1948, does not seem to be at all true. The only witness, who has supported the claim of the plaintiff on this point, is one Prakash Chandra Bose. In his deposition he has described himself as a retired railway servant, It is very strange that such a demand could take place only before a man of his position and not any other directly connected with the business or more akin to him or to his status. Secondly the way in which he was got into the witness box is also not the least consistent with a truthful witness on the contrary it shows that he was more a witness of need than of any veracity. For these reasons, I think, no reliance can be placed on him. Then I come to the evidence of the plaintiff. He also no doubt has stated that:

"The defendants worked till 14-6-1948."

But on the record of this case there is no material whatsoever to suggest that there was anything which defendant No. 1 did for the plaintiff after 31-3-1948. In fact, Mr. Chatterji in answer to my question had to concede that it was so. He however, relying on the principle of law, as laid down in Fink v. Buldeo Dass, ILR 26 Cal 715 had tried to contend that as the shares worth Rs. 19,000/- had been given to defendant No. 1 for the purpose of sale, the agency in such a case could not terminate until defendant No. 1 had given a full and final account of the price of those shares to the plaintiff and as it was not done in this case the agency should be deemed to continue until he had finally refused to render the same on or about 14th June, 1948, when the same was demanded.

In my opinion, this contention is not correct nor the decision relied upon in support of it lays down any such law. It is true that completion of the business of the agency is also one of the points where agency terminates as provided in Section 201 of the Contract Act, and therefore, what that authority says is only this much that unless otherwise proved the agency would continue until the sale price has been accounted for or in other words until the business of the agency has been completed and not that that alone is only the way in which an agency can come to an end.

But this argument is based on two assumptions (1) that the shares in dispute had not already been sold by the plaintiff and the defendants in lieu thereof had not already credited to his accounts the full price of the same as agreed upon and C2) that defendant No. 1 had not on 31-3-1948, already rendered a full and complete account to the plaintiff of all the shares he held for him as his agent. But both these assumptions, as already found, are here incorrect rather the truth in respect to both is just the other way.

Therefore, the contention advanced by the plaintiff that the agency of defendant No. 1 in. this case did not terminate on 31-3-1948, has to be rejected. If that is so then the next question that arises for consideration is whether the suit as framed is barred by the law of limitation.

16. In the trial court this plea of the defence was supported on the footing that the articles which applied to the facts of this case was Article 89. Therefore, the present suit, which was instituted on 25th April, 1951, that means, more than three years- from 31st March, 1948, when the agency, as found above, terminated was barred by time.

The plaintiff, on the other hand, contended that the article which applied to the facts of the case was Article 36 and not Article 89. The learned Subordinate Judge has, however found that this contention of the plaintiff is not correct and that the suit, as contended by the defendants is barred under Article 89 of the Limitation Act.

This finding has been strongly challenged by Mr. Chatterji in appeal. His challenge is however not based on the applicability of Article 36; on the contrary, he has conceded that at least that article does not apply to the facts of the case. His contention, however, is that the articles which should be applied to the facts of the case may be either Articles 48, 90 or 120. But none of these articles were referred to at the trial. Therefore, for that reason alone. I think, this part of the submission made by Mr. Chatterji deserves no consideration at the appellate stage. But as Mr, Chatterji has laid great stress on it, I think it is desirable that it should be disposed of on merit as well.

17. Now the period of limitation, as provided in Article 48, is for a suit which is

"for specific movable property lost, Or acquired by theft, or dishonest misappropriation or conversion, or for compensation for wrongfully taking or detaining the same."

In this case it is not the allegation that the share scrips having the aforesaid face value of Rupees 19,000/- were eVer lost by the plaintiff or acquired by defendant No. 1 in any of the modes or manner given therein, namely, by theft or dishonest misappropriation or conversion or that they were taken or retained by him wrongfully. On the other hand, it is the admitted case of the plaintiff that they were transferred to defendant No. 1 in the course of his agency for their being dealt with in due course of business.

In these circumstances, therefore, the provision of Article 48 cannot be held to be applicable to the facts of the present case, and, therefore, the decisions in Lodna Colliery Co. Ltd. v. Bepin Behary Bose. AIR 1920 Pat 383(2), Srish Chandra Nandy v. Ramji Bechar. AIR 1936 Pat 179. L. P. E. Pugh v. Ashutosh Sen. ILR 8 Pat 516: (AIR 1929 PC 69); Adjai Coal Co. Ltd. v. Pannalal Ghosh ILR 57 Cal 1341: (AIR 1930 PC 113), Sundarji Shivji v. Secretary of State, ILR 13 Pat 752: (AIR 1934 Pat 507) and Kaikhusroo Manekshah v. Gangadas Dwarkadas, ILR 60 Bom 848: (AIR 1936 Bom 322) are also not relevant for our consideration here. The first four of them fall in the group of coal encroachment cases, the fifth relates to the auction sale of a coal consignment by the Railwavs, on the same being misdirected to a wrong station and the last is about the illegal transfer of certain port trust bonds which had been entrusted to a person for their renewal and for the collection of interest due therein but he instead forged the signature of the rightful holder and sold them to a third party without any lawful authority.

Thus the decisions in the first five cases are not based on the consideration of any agency and in the last the act done was wholly without authority. In other words, all those cases were cases of conversion which is not the case here. Therefore, those decisions do not bear any relevancy to the facts of the present case. In my opinion, for a suit based on agency, the articles especially provided for in the Limitation Act are only Articles 89 and 90 with this difference that as between them Article 90 is a residuary article; that means, Article 90 in the case of agency is meant only for such a suit which is not covered by Article 89. That being so, in relation to these two articles the crucial question to be considered is whether the present case is one which is at all attracted by the provisions of Article 89.

In case it is so, then I think any amount of argument advanced in support of the contention that the provision of Article 90 applies to the facts of the present case can be of no avail to the plaintiff.

18. Now what Mr. Chatterji contends is that here is a case where the allegation made is not only about the failure on the part of defendant No. 1 to render account of the agency for which he concedes the proper article applicable is Article 90 but also about the misappropriation of their sale price.

Therefore, it is said that in such a case the proper article applicable is Article 90 and not Article 89. In my opinion, there is no substance in this contention. Further it is directly opposed to what has been laid down in Seosaran Lal v. Harihai Prasad Singh AIR 1916 Cal 244 and Madhavan Nair v. Manavikrama Zamorin Maharajah Averaga] of Calicut, AIR 1928 Mad 906. In the latter case Srinivasa Ayyangar, J. has 'observed that

"So far as the question which is the proper article applicable is concerned, there can be no doubt at all here that the proper article applicable is Article 89. In fact this Court has in the case of Muthiah Ohetty v. Alagappa Chetty, ILR 41 Mad 1: (AIR 1918 Mad 31) decided that in circumstances very similar to the present case even when what is charged includes misappropriation the proper article to be applied is only Article 89. The expression 'neglect or misconduct' appearing in the third column of Article 90 has special reference to what is termed negligence or misconduct of the agent in the conduct of the agency. The word 'misconduct,' therefore, in that Article should not be construed as including everything that may in ordinary parlance be called misconduct. If the expression 'misconduct' should be construed so generally then of course any failure of duty on the part of the agent will amount to misconduct a failure to render an account, a failure to pay over the money in his hands payable to the principal and so on.

But the misconduct or negligence appearing in contradistinction to each other in the third column of that article must be construed technically as referring to what the principal charges as misconduct on the part of the agent in the business of the agency.

Further, Article 90 is undoubtedly the residuary article with regard to actions between principal and agent and Article 90 should be held to be applicable only if no other article can possibly be regarded as applying to the facts of the particular case. There is no reason whatever why Article 89 should not in terms be held applicable because the suit contemplated by that is by a principal against his agent for moveable property received by the latter and not accounted for. If the moveable property is not accounted for it does not matter what the reason for failure to account may be. All that is necessary is the mere failure to account.

Therefore, if the special Article 89 could apply it follows that Article 90 should not be applied."

This means, the word 'neglect' or 'misconduct' as used in Article 90 of the Limitation Act contemplates something which is tortious in nature and, therefore, necessarily an act that is not authorised under the terms of agency or contemplated thereunder; that means, in the case of agency, what in law amounts to misconduct or neglect as contemplated in Article 90 is that act which is done quite independent of the authority given to the agent.

That being so, the retention of any money by an agent which he has received in the due discharge of his duty is not in law, may it be due to any motive, either an act of misconduct or neglect as contemplated in Article 90. Therefore, I have no hesitation to say that in a case like this where apart from the demand of accounts from the agent there is also an allegation of misappropriation against him that cannot by itself take away that suit from the category of Article 89 or can put it into one which is covered by Article 90.

19. Then comes the question of Article 120. That article, as it reads is one which is for a suit for which there is no period of limitation provided elsewhere in Schedule 1 of the Limitation Act. That means, it cannot apply to a case which is covered by Article 89 as here or even by Article 90 as contended by Mr, Chatterji. Thus, neither Article 120 nor the decision based on it, namely, the one in India Sugars and Refineries Ltd, v. Rama-lingam Estate, ILR 1953 Mad 1097: (AIR 1953 Mad 694) can be said to be applicable to the facts of the present case. In that view of the matter, I think there is no escape from the conclusion that the only article which can be said to be applicable to the facts of the present case is Article 89.

Further in view of the finding given above that the agency of defendant No. 1 in the present case terminated on 31-3-1948, the suit as against him has to be held a3 barred by time and so far as defendant No. 2 is concerned, I have already held that he in any case had nothing to do either expressly or by implication with the sale and purchase of the shares of the plaintiff.

20. Accordingly I find that there is no substance in this appeal and the same is dismissed with costs.

Mahapatra, J.

21. I agree.