Judgement

Appeal (No. 133 of 1936) from a decree of the High Court (February 22, 1933) which, in effect, reversed a decree of the Senior Subordinate Judge at Sialkot (May 31, 1926).

The appellants, a firm of merchants in Sialkot, purchased and sold sugar and gunny bags at Calcutta on ready and forward transactions through the respondents, a firm of commission agents in Calcutta, for the period beginning December 3, 1919. The items in dispute related only to shipments of July, August and September, 1920, and arose out of transactions entered into by the respondents as commission agents for the appellants with the following three firms (1.) Diwan Chand-Amar Chand ; (2.) Chatter Bhuj Dossa ; and (3.) Kalu Ram-Kanhaya Lal. In conducting the transactions the respondents did not disclose the name of the appellants firm to the persons or firms with whom they dealt.

In July, August and September, 1920, the respondents, acting as the appellants agents, entered into certain transactions with the three above mentioned firms for the purchase and sale of sugar, as a result of which the following sums became due and owing —

From Diwan Chand-Amar Chand, Rs. 1275 ; from Chatter Bhuj Dossa, Rs. 8670; and from Kalu Ram-Kanhaya Lal Rs. 510.

In October, 1920, in addition to the above sum of Rs. 8670, Chatter Bhuj Dossa owed Rs. 14,662-8-0 to the respondents as commission agents for another principal, making a total indebtedness of Rs. 23,332-8-0. In October, learning that the financial position of Chatter Bhuj Dossa was unsound, the respondents recovered from him the sum of Rs. 10,837-8-0, of which Rs. 4012-12-3 was credited to the appellants and the remainder to the other principal. As regards the unpaid balance due and owing to the appellants the respondents, on December 11, 1920, took from Chatter Bhuj Dossa hundis in their own favour to the amount of Rs. 18,000. The only subsequent payment made by Chatter Bhuj Dossa was of Rs. 764-15-3 on March 26, 1921, and thereafter fresh hundis for Rs. 12,500 were taken from him in October, 1921. On neither occasion were the appellants consulted before the hundis were taken, nor had the respondents any authority from the appellants to accept hundis. Chatter Bhuj Dossa was declared insolvent on May 8, 1922, and no further amount was ever recovered from him or from his estate by the respondents on behalf of the appellants.

The course of business in regard to the other two firms, Diwan Chand-Amar Chand and Kalu Ram-Kanhaya Lal, was conducted in the same manner, but in both those cases the debts for the balance due became ultimately time-barred.

On May 29, 1923, the appellants filed the suit out of which this appeal arose in the Civil Court of Sialkot District, claiming rendition of account. The appellants alleged in their plaint that there was still a large sum of money due to the appellants from the respondents as commission agents, but that, without rendition of account, they could not fix any particular amount as due.

The respondents pleaded (inter alia) that they had not been able to realize the balances claimed by the appellants owing to the financial condition of the firms from whom they were due. The respondents admitted that a sum of Rs. 5450 was out standing on the settlement of accounts between the parties and was still owed by them to the appellants, and said that they had always been ready to pay that sum to the appellants.

The Subordinate Judge held that the respondents were liable to pay to the appellants the sums not recovered from the third parties. With regard to the debt due from Chatter Bhuj Dossa he said "long credit was given by defendants to "a customer with shaky credit ; in such circumstances if loss "accrues to the principal by the insolvency of the debtor the "agent is clearly liable.”

An appeal by the defendants to the High Court (Harrison and Agha Haider JJ.) was allowed. They held that "it has not "been shown that there was any negligence on the part of "the defendant in the acti