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1959 Supreme(Pat) 137
PATNA HIGH COURT
K.Ahmad and H.Mahapatra JJ.
Devji Shivji
Versus
Mohanlal Odhabji Thacker
Appeal From Appellate Decree No. 5 of 1953 ;
Decided On : OCTOBER 27, 1959
A suit for an account against an agent for moveable property received by the latter and not accounted for is governed by Article 89 of the Limitation Act, even if there is an allegation of misappropriation of the sale price.
Headnote:
AGENCY - ACCOUNT - SUIT FOR - LIMITATION - ARTICLE 89, LIMITATION ACT - APPLICABILITY - MISAPPROPRIATION OF SALE PRICE - WHETHER TAKES CASE OUT OF ARTICLE 89 - HELD, NO.
Fact of the Case:
Plaintiff sued defendants, his agents, for an account of shares sold by them and for the sale price thereof. Defendants pleaded that the shares had been sold to them by plaintiff and that the sale price had been paid to him. The trial court found that one of the defendants had acted as plaintiff's agent in the matter of shares and that the shares in question had been sold to the defendants and that the sale price had been paid to the plaintiff. The trial court also found that the agency had terminated on 31-3-1948 and that the suit was barred by limitation under Article 89 of the Limitation Act.
Finding of the Court:
The High Court held that the finding of the trial court that one of the defendants had acted as plaintiff's agent in the matter of shares was unassailable. The High Court also held that the finding of the trial court that the shares in question had been sold to the defendants and that the sale price had been paid to the plaintiff was also unassailable. The High Court further held that the agency had terminated on 31-3-1948 and that the suit was barred by limitation under Article 89 of the Limitation Act. The High Court also held that the allegation of misappropriation of the sale price did not take the case out of Article 89.
Issues: 1. Whether one of the defendants had acted as plaintiff's agent in the matter of shares? 2. Whether the shares in question had been sold to the defendants and that the sale price had been paid to the plaintiff? 3. Whether the agency had terminated on 31-3-1948? 4. Whether the suit was barred by limitation under Article 89 of the Limitation Act? 5. Whether the allegation of misappropriation of the sale price took the case out of Article 89?
Ratio Decidendi: 1. The High Court held that the finding of the trial court that one of the defendants had acted as plaintiff's agent in the matter of shares was unassailable. 2. The High Court also held that the finding of the trial court that the shares in question had been sold to the defendants and that the sale price had been paid to the plaintiff was also unassailable. 3. The High Court further held that the agency had terminated on 31-3-1948 and that the suit was barred by limitation under Article 89 of the Limitation Act. 4. The High Court also held that the allegation of misappropriation of the sale price did not take the case out of Article 89.
Final Decision: The High Court dismissed the appeal with costs.
K.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
