BEHARI LAL ROY CHAUDHURI Vs. HARA KUMAR DUTTA

JUDGEMENT

(1.) This appeal arses a suit for accounts for a certain against an agent. Both the Courts have dismissed the suit as barred by tion, evidently under Article 89 of Schedule I of the Indian Limitation Act. It is contended before us that the lower Courts are wrong and that Article 132 and not Articla 89 is applicable to the, case. It is: true that the kabuliat of the agent: hypothecated cert in immoveable property, which would be answerable for any defalcation made by him or any damages, suffered: by the principal through his negligence, and there is conflict of authorities with regard to the applicability of Article 89 to a suit of this kind in such, a case. In the case of Hafezuddin Mondal v. Jadu Nath Saha 7 C.L.J. 270 : 35 C. 298 : 12 C.W.N. 820 it was held that in a case where there is a hypothecation bond of this kind, Article 132 is the right, Ariide to be applied. In the subsequent case oJr Jogesh Chandra alias Dhalu Qhose v. Benode-Lal Roy choudhry 5 Ind. Cas. 59 : 14 C.W.N. 122 it was held that in, a similar case, Article 116 was the right Article to be applied. That question, how-ever, does not seem to arise in this case. The finding of the lower Appellate Court is that the appointment of defendant No. 1 ceased in 1306 and that he was re-appointed in 1307 after his dismissal in 1306. The terms of the kabuliat of 1305 were binding on him in the sense that if any defalcation had been made during this period, recourse might be had to the hypothecated property is due course, of law. In the present case the alleged defalcation and the default were made in 1307 and 1308, that is after the defendant No. 1 had been dismissed in 1306; and re-appointed in 1307. His position in 1307 was, therefore, not governed by the kabuliat of 1305 but by the ordinary rules applicable between the principal and the agent. Article 89 was, therefore, the right Article to be applied and the lower Courts are right.

(2.) It is true there is a claim for the papers of 1305, and there is a dispute as to whether the claim as to that is barred by limitation or not. The first Court with regard to the papers says, "There is absolutely no evidence on the plaintiff s side that those papers were not submitted", and the lower Appellate Court says that the reasons given by the learned Munsif are very convincing. This we take as a confirmation of the view of the Munsif with regard to the papers.

(3.) The result is that the appeal is dismissed with costs.