G R FOX Vs. BENI PERSHAD KOER

JUDGEMENT

(1.) These two appeals arise out of a suit for account brought by the Dumraon Raj against Mr. George Fox, Assistant Manager in charge of the Balia Division, and one Sheo Sagar Roy, the collecting agent appointed by him, for an account. A sum of twenty-eight thousand and odd was claimed and the Subordinate Judge in the Court below has, after taking the accounts himself in the course of the hearing, found that the defendant, Sheo Sagar Roy, is liable for all monies collected and not accounted for to the amount of thirteen thousand eight hundred and seventy-six rupees fourteen annas and ten pies (Rs. 13,876-14-10) and post proportionately, and has found Mr. G. Fox only liable for acts of management in respect of one item of Rs. 4,000 which he considers was improperly advanced by Mr. G. Fox to a Counsel at Allahabad as retaining fee for conducting a certain litigation in the Balia District which the Counsel in question neglected to do.

(2.) In Appeal No. 98 we are concerned with this sum of Rs. 4,000 only. Mr. G. Fox has based his appeal on two grounds, first, that the suit is barred by limitation as against him, and, secondly, that on the findings of the lower Court he is not liable for the Rs. 4,000 in question. Mr. G. Fox tendered his resignation on the 24 April, 1902, and contends that it was accepted on that date. The plaintiff relying on a previous deposition of Mr. Fox which was apparently mistaken fixes the date of tender of resignation on the 27 April, 1902. The suit was brought on the 26 April, 1905. The question to be determined is whether the suit is barred by three years limitation under Art. 89. On the facts disclosed on the. evidence it appears to us that if the three years limitation applies and if there was no subsequent acknowledgment of liability the claim against Mr. Fox is clearly barred. It is proved beyond doubt that he tendered his resignation on the 24 April, 1902, to his brother, Mr. Charles Fox, who was the manager of the Raj at a place only two miles distant from Dumraon. The resignation was at once communicated to the Moharani,and in the list of documents filed by her in another suit the letter of resignation dated the 24 April, 1902, and her letter accepting it of the same date are specifically mentioned. Mr. Fox by a petition to the lower Court dated 15 June, 1905, called for these letters which were not produced. It must, therefore, be taken as an incontrovertiblef act that the resignation was tendered and accepted on the 24 April 1902. The contention that the Moharani being a purdanashin lady it must be established that she knew and understood the question of resignation cannot be considered as the Moharani is shown to have largely managed her own affairs and in the letter which she wrote to Mr. Fox on that date she evidently expressed some wish that he should resign. Further Mr. Fox wrote another letter beginning,--"at the Moharani's request, I resign." But the respondent contends that six years limitation applies, and, secondly, that the subsequent correspondence contains an acknowledgment of liability which brings the case within the ruling of W.R. Fink V/s. Buldeo Dass 3 C.W.K. 524; 26 C. 715.

(3.) As regards the first point we have been referred to the rulings in Harender Kishore Singh V/s. The Administrator-General of Bengal 12 C. 357 and Ranga Reddi V/s. Chinna Reddi 14 M. 465. Neither of these rulings seem to have any application to the present suit. In the case of Harender Kishore Singh V/s. The Administrator-General of Bengal 12 C. 357 the suit was to recover certain sums of money received by the agent in the course of his duties and misappropriated by him; and it was held that the agency being under a registered instrument, Art. 116 would apply. The Madras case was on a registered partnership agreement and obviously would have no application. There was a case, e.g. Hurrinath Rai V/s. Krishna Kumar Bakshi 14 C. 147; 13 I.A. 123 where the Judicial Committee held in a case of similar nature to the present that Art. 118 of Act IX of 1871, now Art. 120 applied, because Art. 89 of that Act did not contain the words it now does with regard to a suit for account, "or where no such admission is made when the agency terminated." This also has no bearing on the present case We find the ruling in Harender Kishore Singh V/s. The Administrator-General of Bengal 12 C. 357 which appears to stand alone, is clearly distinguishable from this case, inasmuch as here there is no allegation of misappropriation, no allegation of money actually passing through Mr. Fox's hands, and no breach of a registered contract, inasmuch as the contract gave Mr. Fox power to make advances to the Counsel and he is only sued in respect of want of due care and diligence in his agency which clearly comes under Articles 89 and 90.