DINOMOYI DEBI Vs. ROY LUCHMIPUT SINGH

JUDGEMENT

(1.) THIS suit was brought by Boy Luchmiput Sing Bahadoor, who is a banker carrying on his business at Bungpoor, and having a branch bank at Baloochur in Moorshedabad, against a lady of the name of Dinomoyi Debi Ohowdhrani, to recover a large sum of money which is claimed as being due upon the balance of a banking account. This balance represents principal due up to the 29th Assin, 1276, Rs.l2,492, and interest from that date to the 22nd Assin, 1280, Rs.5548, making altogether Rs. 17,950. The Plaintiff joined, as Defendant in the action, Bam Tarun Hazra, who was in the service of the first Defendant and whose position will be hereafter referred to, and also, as a third Defendant, Bhada Churn Banerjee, her son-in-law and her dewan. There seems to have, been no ground whatever for joining these two persons, for they acted as agents only in the transactions which formed the subject of the action, and were in no way personally liable to the Plaintiff. They may be considered as being out of the suit. The defence made to this claim was first, a denial that the balance claimed was duo, and secondly, that if that balance was at any time due the right to recover it was barred by the Statute of Limitations, No. 9 of 1871. It seems that Bam Tarun, Hazra was what is called a jammanuvis, a kind of accountant in the Defendant's service; but undoubtedly he had mooktearnamahs or am-mooktearnamahs from the Defendant, for the lady herself, who was examined on the part of the Plaintiff, admits that they were given to him. However, they have not been produced. It is unquestionable also that Bhada Churn acted as dewan of the lady. It seems that she had on one or two occasions deposited considerable sums with the Plaintiff on deposit, and had also left with him on deposit valuable property in gold and silver; but on the other side moneys were drawn out from time to time on her account. A large sum of money, Rs.17,000, was drawn from the bank to pay for an estate which she purchased. The items of the banking account were disputed in the Court below, particularly with regard to that sum of Rs. 17,000. and another sum of Rs.16,000, which, though it was admitted to have been taken out for the purchase of this estate, was said to have been again paid into the bank. The banking account was managed, and the sums drawn out by Bam Tarun Eazra, who seems to have been the principal actor in the transactions with the bank, though Bhada Chum interfered in them, and must have known what was the state of the account from time to time. It seems that the account began in 1272, and was finally closed, so far as regards the drawing out and paying in of money, in 1274.

(2.) FOUR accounts altogether have been referred to, which bear the signature of Ram Tarun Hazra. The period of adjusting these accounts appears to have been in the month of Assin, treated as the beginning of the commercial year. The accounts were kept both in Hindee and Bengali books. The dates spoken of in this judgment are those in the Bengali books. The last account (the third) which was adjusted-before we come to the adjustment and har-chitta which are in question in this suit-was adjusted on the 10th Assin, 1275, which corresponds with the 25th of September, 1808. No other account was adjusted until that in question, and upon the adjustment of which the hat-chitta in dispute was said to be given in 24th Assar, 1277, corresponding with the 7th of July, 1870. Therefore this account, instead of being adjusted as in ordinary course it would have been in Assin of 1275, was not adjusted until the 24th of Assar, 1277; and it was adjusted, not at Mahigunge, where the former accounts had been settled, but at Baloochur in Moorshedabad. It is said that the reason of the delay and of the settlement having taken place at Moorshedabad, was that there had been some altercation about the amount of interest which should be charged upon the balance due. The two Judges of the High Court, Mr. Justice Kemp and Mr. Justice Ainslie, differed in the view they took of the truth of this mode of accounting for the delay. Mr. Justice Kemp gave credit to the statement of the Plaintiff's witnesses who said that the cause of the delay was the dispute about the interest. Mr. Justice Ainslie thought that the Plaintiffs story with regard to it was a mere pretence. It is unnecessary, in their Lordships' view, to determine which of the learned Judges is right in his view of the evidence on that point. It is enough to say that this settlement was made out of the ordinary course, being made nine or ten months after the usual time for adjusting the account, and at an unusual place.

(3.) THE question remains whether the debt is not barred by limitation. The last settlement of account, which was regularly made and adjusted by Hazra, took place on 10th Assin, 1275, nearly five years before the suit. In order therefore to take the case out of the operation of Act No. 9 of 1871 it is necessary for the Plaintiff to establish that there had been an acknowledgment cither by the Defendant herself or by an agent of hers within the period of three years, which is the period of limitation applicable to the present claim. The 20th Section of Act 9 enacts: "No promise or acknowledgment in respect of a debt or legacy shall take the case out of the operation of this Act unless such promise or acknowledgment is contained in some writing signed before the expiration of the prescribed period by the party to be charged therewith, or by his agent generally or especially authorized in this behalf. "The case of the Plaintiff is, that an acknowledgment was signed by Hazra, and that he, at the time he signed it, was the Defendant's agent, either generally or especially authorized in that behalf. The case is put in two ways: first, that his general authority to act for the lady continued up to the time when he signed the documents to be presently referred to; and secondly, it is said that there is evidence of a special authority given to him by her to make these acknowledgments.