Ratios:
a. When an agent had paid money from its funds for the benefit of the principal and the money so paid had not been refunded by the principal to the agent, the agency becomes an “agency coupled with interest”
b. “Agency coupled with interest” cannot be terminated without the interest of the agent in the agency is terminated.
c. In an agency coupled with interest, the agent can maintain the suit without impleading the principal.
d. Statement of accounts is a secondary evidence in the place of the ledger.
e. To admit the statement of accounts of a concern as secondary evidence, the person filing it should explain the reason for the non-production of the ledger.
f. When a person gets refund of the charges or money paid by him on behalf of another and already got such payment reimbursed from that beneficiary, such refunded amount should be returned to the person who actually borne the liability.

Headnote:(A)Indian Contract Act, 1872, (9 of 1872)-Sec.69, 70, 230-Indian Evidence Act, 1872(1 of 1872)-Sec.34-Agency-Agent-Agent coupled with interest-Suit-Locus standi-Cause of action-Misjoinder of cause of action-Non-joinder of parties-Unjust enrichment-Repayment-Interest-Evidence-Secondary evidence-Books of account-Ledger-Plaintiff acted as clearing and forwarding agent for some importers and the 1st defendant acted as agent for the shipping company-Plaintiff handled few import transactions through the 1st defendant for the benefit of its customers and had paid various payments and statutory charges to the 1st defendant out of its funds-Later, Port Trust reduced the statutory charges with retrospective effect which also covered the transactions done by the plaintiff through the 1st defendant-Plaintiff had also paid security amount for the containers taken by it from the 1st defendant and on the return of the containers the security amount were also due to be returned-Plaintiff filed suit demanding the return of the reduced port charges and security deposit-1st defendant contended that the plaintiff was only an agent for many importers, the amount mentioned in the plaintiff was due only to the importers and only they may maintain the suit-1st defendant further contended that litigation was pending in respect of the statutory charges and in case of failure of the litigation, the 1st defendant might face liability and the obligation for refund would arise only on the successful completion of the litigation-1st defendant also contended that the amount due was in respect of many small transactions and all of them cannot be clubbed together in a single suit-Held, when the plaintiff had paid the amount out of its funds, the plaintiff was entitled to maintain the suit in its name since it was an agency coupled with interest-The challenge in the writ petition was regarding the excess charge and when the charge was reduced by the port, the 1st defendant was not entitled to retain it under the principle of doctrine unjust enrichment-Since the amount due on various bills were of similar nature, all the claims could be joined together in a single suit-1st defendant was directed to repay the amount with 12% interest per annum.
       (B)Indian Contract Act, 1872, (9 of 1872)-Sec.69, 70, 230-Agency-Agent-Agent coupled with interest-Termination-When an agent had paid money from its funds for the benefit of the principal and the money so paid had not been refunded by the principal to the agent, the agency becomes an “agency coupled with interest”-“Agency coupled with interest” cannot be terminated without the interest of the agent in the agency is terminated.
       The payments were made only by the plaintiff without obtaining any advances from the importers. There is no evidence adduced contra nor any material has been placed by the defendants to show that there was no interest of the plaintiff coupled with the agencies. ……. The plaintiff had acted on behalf of the importers as per the agency created in between them and the plaintiff had made the payments to the first defendant by issuing various cheques and therefore it could be found that the monies of the plaintiff were paid initially by the plaintiff and the interest has been created in favour of the plaintiff in the agency. Therefore, the said agency cannot be terminated without the interest of the plaintiff in the agency has been terminated. Para 30
        (C)Indian Contract Act, 1872, (9 of 1872)-Sec.69, 70, 230- Agency-Agent-Agent coupled with interest-Suit-Locus standi-Principal-Impleading-Necessary party-Non-joinder of parties-In an agency coupled with interest, the agent can maintain the suit without impleading the principal.
        Since the plaintiff is found to be an agent coupled with interest and he is entitled to sue against the defendants there is no necessity of impleadment of all the importers for the purpose of claiming the relief mentioned in the plaint. Therefore, the bar of an agent to file any suit against any person liable to pay by either to the agent or to the principal under Section 230 of the Indian Contract Act cannot be applied to the present case. Since the plaintiff is found to be an agent coupled with interest and he is entitled to sue against the defendants there is no necessity of impleadment of all the importers for the purpose of claiming the relief mentioned in the plaint. Therefore, the bar of an agent to file any suit against any person liable to pay by either to the agent or to the principal under Section 230 of the Indian Contract Act cannot be applied to the present case. Para 32
        (D)Indian Evidence Act, 1872(1 of 1872)-Sec.34- Evidence-Secondary evidence-Books of account-Ledger-Statement of accounts is a secondary evidence in the place of the ledger-To admit the statement of accounts of a concern as secondary evidence, the person filing it should explain the reason for the non-production of the ledger.
        The tenor of the judgements referred above would go to show that the statement of accounts could be considered as secondary evidence in the place of the ledgers maintained by the plaintiff and, therefore, without any explanation for non-production of the said ledgers the statement of accounts cannot be admitted in evidence. Para 39
        (E)Indian Contract Act, 1872, (9 of 1872)-Sec.69, 70-Statutory charges-Refund-Repayment-Unjust enrichment- When a person gets refund of the charges or money paid by him on behalf of another and already got such payment reimbursed from that beneficiary, such refunded amount should be returned to the person who actually borne the liability.
       The doctrine of unjust enrichment would also apply to the present case. When the second defendant had issued notification reducing the tariff charges with retrospective effect, what were all the payments made by the plaintiff, covered by the notification issued under Ex.P-9 should not have been retained by the first defendant who acted on behalf of the second defendant. If the first defendant had retained the said amount without paying it to the plaintiff as per the difference of tariffs in between Ex.P-1 and Ex. P-9 notifications, which would certainly amount to unjust enrichment. Para 40

J U D G E M E N T:- The suit was laid by the plaintiff against the first defendant for a sum of Rs.19,02,299.39 together with interest at the rate of 24% per annum from the date of the plaint till the date of realisation with cost.

2. The plaint averments are as follows:

The plaintiff was appointed as Clearing and Forwarding agent on behalf of several importers. The first defendant was a steamer agent and collects the storage charges and also security deposits from the plaintiff to the second defendant. The second defendant was Chennai Port Trust and the cargo which arrived in the containers were stored in the premises and levies storage charges for storing the container in its premises.

3. The Plaintiff utilised two types of containers viz.20' and 40' of the first defendant for its importers. The plaintiff paid the container storage charges to the first defendant as per the scale of rates fixed by the second respondent by its order dated 6.5.1994 and published in the Tamil Nadu Government Gazette dated 6.7.1994. The payments were made on various dates from 20.5.1994 to 24.3.1996 by the plaintiff to the first defendant. The first defendant has also issued receipts for the same.

4. Subsequently, the second defendant by its notification dated 4.7.1995 and published in the issue of Tamil Nadu Government Gazette dated 19.7.1995 revised the scale of rates with effect from 4.7.1995. In view of the revision, the first defendant was bound to refund the excess amount collected by it from the plaintiff towards container storage charges during the period from 6.5.1994 and 6.7.1995 and also refund the security deposits for the container collected during the period from 20.5.1994 to 24.3.1996 from the plaintiff as the empty containers had been returned. The plaintiff is entitled to get the benefit of the new scale of rates revised by the second defendant and also entitled to get the refund of the security deposit for containers received by the first defendant. As on 6.7.1995 a sum of Rs.11,82,531.80 is due from the first defendant.

5. Inspite of repeated reminders the first defendant has failed to pay the amount and hence the plaintiff sent letters dated 26.12.1995, 12.01.1996 and 21.05.1996 requesting the first defendant to refund the excess amount collected by them towards containers storage charges as well as the security deposits collected by it to the plaintiff. The first defendant has also acknowledged the same and agreeing to pay only a sum of Rs.2,06,467/- to the plaintiff. But the liability acknowledged by the first defendant, the first defendant has not been paid to the plaintiff.

6. The plaintiff has also sent a legal notice to the first defendant through its counsel on 24.8.1996, demanding the refund of the excess amount collected by them towards containers deposit and Port storage charges. The first defendant has received the notice but has neither replied nor made the payment to the plaintiff. There is no relief claimed against the second defendant. Hence the above suit.

7. The written statement filed on behalf of the first defendant is as follows:

The plaintiff does not possess the authority or right to file the present suit on behalf of the several importers without impleading them as plaintiffs in the present suit and that for the purpose of security only cheques towards the value of empty containers were obtained by way of security deposits. However, the said cheques were not encashed and were kept in the safe custody until a particular container is returned and that there is no money encashed on account of security deposit collected from the plaintiff and as such there is no amount due to the plaintiff and it is the duty of the plaintiff, who was in charge of the clearance of the empty containers, after the said containers are destuffed to notify the second defendant in time about such clearance. However, the plaintiff failed in its duty to notify the second defendant in time which had resulted the co

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IN THE HIGH COURT OF MADRASV.Periya Karuppiah JM/s.Sri Saravana Shipping Services Pvt. Ltd., v. M/s. Shaw Wallace Company Ltd. & Anr.,C.S.No.264 of 1998 dated 6.3.2009

Cases Referred (9)

IN THE HIGH COURT OF MADRAS
V.Periya Karuppiah J
M/s.Sri Saravana Shipping Services Pvt. Ltd., v. M/s. Shaw Wallace Company Ltd. & Anr.,
C.S.No.264 of 1998 dated 6.3.2009