HINGU LAL Vs. SARJU PRASAD

JUDGEMENT

(1.) This is a second appeal by the plaintiff. He brought a suit for the recovery of a sum of Rs. 200 which he said he had deposited with the defendant and added to that a claim that the defendant may be ordered to render the entire account to the plaintiff in respect of the latter's business carried on in shellac by the defendant, and on rendition of account a further decree for that amount which may be found due to the plaintiff by the defendant may be passed in favour of the plaintiff. The case of the plaintiff, as developed in the plaint and in the Court below, was that the sum of Rs. 200 was deposited with the defendant on 10 June 1928 and shortly after, the plaintiff instructed the defendant to purchase and sell shellac on behalf of the plaintiff keeping Rs. 200 as a sort of margin money. The defence was that the defendant was never the agent of the plaintiff and that Rs. 200 were never deposited by the plaintiff in the defendant's shop. It was said that the aforementioned sum was deposited by one Mata Prasad and certain transactions in shellac were entered by the defendant on behalf of Mata Prasad and that accounts were subsequently settled and whatever was due to Mata Prasad was paid by the defendant to Mata Prasad.

(2.) It appears that during the pendency of the suit the parties were examined by the trial Court and it was admitted by them that on account of the transactions of shellac to which reference has already been made a sum of Rs. 4.67-12-6 was found due from the defendant and the defendant further said that this sum had been paid by him to Mata Prasad. There was a plea of limitation also by the defendant, but the trial Court was of the opinion that the plaintiff's suit was not barred by time, and the payment, if any, made by the defendant to Mata Prasad, in the view which the trial Court took, did not absolve the defendant, because it was the plaintiff with whom the defendant entered into a contract and the payment ought to have been made by the defendant to the plaintiff. On appeal by the defendant the lower appellate Court did not go into the merits of the case but held that the plaintiff's suit was barred by time. The learned Civil Judge observes: It appears from the evidence of Hingu Lal, plaintiff himself, that some time about the end of 1928 he asked the defendant Sarju Prasad not to enter into any further transactions as he was going out of the station. In other words, he clearly gave intimation to Sarju Prasad, respondent, that the agency was terminated, and that no further transaction should be made. If that is so, it is obvious that the right to recover the money due from the defendant, who was the agent of the plaintiff, accrued in the end of 1928. Under Art. 89, Lim. Act, the plaintiff had only three years within which to file a suit, but it was filed about five years later in 1933. The suit is thus clearly barred by limitation.

(3.) Learned Counsel for the plaintiff contends that the view of law taken by the lower appellate Court is erroneous and reliance is placed on the case in Babu Ram V/s. Ram Dayal (1890) 12 All. 541 and on the case in Fink V/s. Buldeo Dass (1899) 26 Cal. 715. In these two cases it was held that the agency does not terminate immediately on the sale of the goods inasmuch as there is a subsequent obligation to account for the sums and to pay them. It was said that where an agent for the sale of goods receives the price thereof, the agency does not terminate with reference to Secs.201 and 218, Contract Act, until he has paid the price to the principal and a suit by the principal to recover the price is within time if brought within three years from the date of demand. The argument be-fore me therefore is that in the present case a formal demand was made on 17 May 1933 by means of a registered notice and the suit instituted on 31 May 1933 was therefore not barred by time. In the plaint it is stated that the cause of action for the suit arose in the mon February, 1933 on the day on which the money in deposit was demanded. It appears that formerly it was alleged that limitation began to run from February 1933 in connection with the sum of Rs. 200 which was deposited as, what I said, a sort of margin money, but later by a statement dated 30 July 1934, recorded on paper No. 68 C, the case was confined to the recovery of Rs. 467-12-6 due on account of the profits on the shellac transaction, and learned Counsel for the appellant asks that for this limitation should run from 17 May 1933 when registered notice was given.