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1903 DIGILAW 266 (CAL)

Jogendra Nath Roy v. Deb Nath Chatterjee

1903-11-20

body1903
JUDGMENT 1. The only question for determination in this appeal which arises out, of a suit brought by the Plaintiffs-Appellants against their agent for an account and for any money that may be found due from him upon accounts being taken, is, whether the Courts below were right in holding that the suit was barred by limitation. The Courts below have held that the suit is governed by Art. 89 of Sch. II of the Indian Limitation Act, and as it is brought more than three years after the time mentioned in that article, it is barred by limitation, the letters of acknowledgment of liability relied upon by the Plaintiffs being ineffectual in saving the case from being barred, as the last of these letters is dated more than three years after the date of the previous one in which there was an acknowledgment of liability. 2. In second appeal it is contended on behalf of the Plaintiffs-Appellants, first, that the Courts below were wrong in holding that the suit was governed by Art. 89 of the second schedule of the Limitation Act when they ought to have held that it was governed by Art. 120; and, secondly, that the Courts below have erred in holding that the second letter, that is, the letter of the 14th Magh 1304 does not contain any acknowledgment of liability and is therefore ineffectual in saving the suit from being barred. 3. We are of opinion that both these contentions are unsound. 4. In support of the first contention it is argued that Art. 89 does not relate to a suit like the present which is one for account, but relates to a suit against an agent for moveable property received by the latter and not accounted for. 5. We are unable to accept this argument as correct. In our opinion Art. 89 relates to a suit like the present by a principal against his agent for an account and for any money that may be found due upon such account being taken. This is clear from two considerations. 5. We are unable to accept this argument as correct. In our opinion Art. 89 relates to a suit like the present by a principal against his agent for an account and for any money that may be found due upon such account being taken. This is clear from two considerations. In the first place, the terms of the article itself go to show that the suit contemplated must involve the taking of an account and if the moveable property claimed is ?accounted for by the Defendant agent the suit would be dismissed; and it is only when the Defendant fails to account for the property claimed that the decree will go against him. Then, in the second place, a comparison of Art. 89 with Art. 88 to which Art. 89 expressly refers when giving the time from which the period begins to run, would go to show that the two articles relate to the same description of suit, the earlier article applying to the suit when brought against an agent of a particular description styled a factor and the subsequent article applying to a suit against an agent generally. 6. We are therefore of opinion that the Courts below were right in holding that the case was governed by Art. 89 of the second schedule of the Limitation Act and not by Art. 120. 7. Then as to the second contention of the Appellants, although the second letter as translated and printed in the paper-book may lend some support to that contention, on referring to the original we find that there is no mention of any work in that latter, and the words in the original which have been rendered as "join my work" mean only "present myself." That being so, the Courts below were right in holding that the second letter relied upon does not help the case. The result then is that the appeal fails and must be dismissed with costs.