RAJESWAR SAHA Vs. SHEIK YADALI

JUDGEMENT

(1.) The Courts below have dismissed the suit which the plaintiff instituted for what has been considered by them as a suit for accounts. The main ground of their decision is that the plaintiff's right is based upon an assignment which he obtained from the proforma defendants of what has been held to be a bare right to sue within the meaning of Section 6(e), T.P. Act. The plaintiff purchased from the pro forma defendants certain immovable properties together with certain rights which were described in these words: Sheikh Deanat Hossein of Lakshmipur and Sheikh Yadali of Nayadanga have both been working under us as Tahsildars in respect of the properties described in Sch. 1-10; you will take from them to your satisfaction, either amicably or by suit, all papers relating to the collection of the properties sold, and the accounts for the period of their service, and the moneys that may be found due from them on the basis thereof.

(2.) The question which arises for consideration which arises for consideration in this case presents some difficulties in view of the fact that there are two decisions of this Court, Khetra Mohan Das V/s. Biswanath Bera and Churamani Mandal V/s. Rajendra Kumar (1917) 42 IC 390, which are in conflict with each other. With the utmost respect for the learned Judges who decided the case of Khetra Mohan Das V/s. Biswanath Bera , I must say I am unable to agree with the decision. That case makss no distinction between a right to recover damages for the negligence of an agent in failing to collect rents or in other ways and the right to recover moneys belonging to the principal which the agent may have collected as rents and which should be presumed to be in the hands of the agent until accounted for. Indeed, referring to the case of Varaha Swami V/s. Ram Chandra Raja (1915) 38 Mad 138 which was mainly relied upon in that case, the learned Judges observed: It was held that a mere right to recover damages for the negligence of an agent in not collecting rent is not assignable. There does not seem to be much difference between failure to collect rent and failure to pay rent collected.

(3.) I am unable to assent to the proposition thus laid down. The distinction, in my opinion, is well marked; one is an action for damages and the other for recovery of moneys had and received. The distinction is clearly pointed out in the of Madho Das V/s. Ramji Patak (1894) 16 All 286. In that case it was observed thus: There can, in our opinion, be no doubt that money or a balance in the hands of an agent, which he has received from or holds for his principal to be applied to certain purposes can be recovered from that agent as money had and received to the use of the principal, if the agent fails to apply it, or if the agent having applied part of it, a balance remains in the hands of the agent: and the fact that when the principal brings his suit to recover such balance he may, until the agent's accounts are produced, be unable to specify the particular amount of the balance remaining in the agent's hands and due to him does not prevent such balance being a debt due to the principal. Such balance is a sum of money which the agent is bound on principles of justice and equity to pay over on demand to his principal, although there may have been no actual but only an implied agreement to repay such balance.