V N SUBRAMANIA IYER Vs. KMSRMKANNAPPA CHETTI

JUDGEMENT

(1.) This appeal arises out of a suit between a principal and his agent. The plaintiff had a cloth shop in Kumbakonam and he was also doing some money lending business there. The defendant became his agent at Kumbakonam under a salary chit (Ex. A) dated 28 April 1919. As usual it was for a period of three years and provided that the defendant should receive a salary of Rs. 50 per mensem. On 18 of May however, the plaintiff gave a letter (Ex. 1) to the defendant which records a previous under, standing to the effect that in addition to salary, the defendant was to be paid 5 per cent, of the profits after deducting "interest charges" and other charges. To facilitate the conduct of business, a power of attorney (Ex. B) was executed by the plaintiff in favour of the defendant on 12 November 1920; this was not in terms limited to any specified period. When approaching the expiry of the three years term under Ex. A, the defendant was apparently pressing the principal for increased remuneration and in Ex. 1-a, dated 13 May 1922, the principal wrote to the defendant to say that from 28 April 1922 when the stipulated term of Ex. A ends) the salary might be fixed according to the scale that might be settled hereafter. Ultimately, on 24 August 1922, a new salary chit (Ex. C) was executed by the defendant and accepted by the principal, under which the defendant was to be paid a salary of Rs. 90 per mensem and the share of profits was fixed at 7 per cent, both to take effect from 13 April 1922. The defendant continued in the business of agency up to 29 January 1925 when he started a new business of his own and left the plaintiff's shop.

(2.) A number of allegations were made against the defendant in the plaint, in respect of the manner in which he had conducted the business and in respect of the alleged omissions on his part to render proper accounts and to prepare stock list, out-standings list and so on. On most matters the lower Court has found in the defendant's favour. But as it was of opinion that there had not been a complete rendering of accounts, in the sense contemplated by law as between principal and agent, it passed a preliminary decree for accounts being taken. It is in respect of some of the directions given in that preliminary decree that questions have been raised in the appeal as well as in the memorandum of objections. A general question was also raised in the appeal to the effect that the suit was barred by limitation.

(3.) The question of limitation may be disposed of at the outset. On behalf of the appellant (defendant) Mr. K.V. Krishnaswami Ayyar contended that the suit must be held to be governed by Art. 90 and not by Art. 89 and, in the alternative, that even under Art. 89, the two agencies under Exs. A and C must be treated as distinct agencies and the suit must be held to be barred so far as the accounts of the first agency are concerned, because the present suit was instituted only on 25 January 1928. We do not think that either of these contentions is well founded. The present suit is undoubtedly a suit for account, though, as the plaintiff was in possession of the accounts relating to the defendant's conduct of the agency, the plaintiff had not to pray for a general accounting but only took exception to particular matters appearing in the accounts. The mere fact that the plaint also contained allegations that in certain transactions the defendant had acted in excess of his authority will not make the suit any the less one governed by Art. 89 Muthiah Chatty V/s. Alagappa A.I.R. 1918 Mad 31 The argument founded upon the existence of two salary chits is equally un tenable. As has been observed in Ramanathan Chetty V/s. Kasi, A.I.R. 1917 Mad 455 and the connected oases, the principal purpose of the salary chit is to fix the remuneration of the agent. Whether on the termination of the period fixed in the salary chit the agency also terminated or not is a question of fact and not a question of law. The defendant himself in his deposition admits that the object of the salary chit was only to fix his salary; he adds "the period of business was not fixed, i.e. of the business to be done by me When it is Remembered that there was a continuous course of management by the defendant and no new accounts were opened for the so called second period of agency and no new power of attorney was executed in respect of the second period of agency and the increased remuneration provided for under Ex. C is made to take effect not from the date of Ex. C but even from 13 April 1922, which covers part of the period covered by Ex. A, we do not think there is any justification for artificially splitting up the defendant's conduct of the plaintiff's business into two separate agencies. We therefore overrule the plea of limitation.