“Description of suit.

Period of limitation.???????????

Time from which period begins to run.

For money paid upon an Existing consideration which afterwards fails.

Three years.????

The date of the failure.

 

There was no “existing consideration”. The parties had the common object of purchasing a property. An object is different from consideration. When money is paid by one person to another so that with it he may achieve a certain objective, there may be implied trust or creation of an agency. In either case there may not be any consideration. There was none in this case.

 

Article 89 runs as follows :‑

 

“Description of suit.

Period of limitation.???????????

Time from which period begins to run.

By a principal against??? his agent for moveable property received by the latter and not accounted

for.??????????????????????????????????????????

Three??

years.??

When the account, is during the continuance

of the agency, demand?ed and refused or where no such, or demand is made, when the agency terminates.

 

The counsel of .the plaintiff contended that an agency was created in terms of section 182 of the Contract Act, 1872 by the employ?ment of the defendant by the plaintiff for making a bargain and representing the plaintiff in this deal with the seller of the property. The deal did involve the representation of the plaintiff partly if the defendant was negotiating the transaction partly on behalf of himself and partly on behalf of the plaintiff. There was, however, no representation of the plaintiff if the defendant did not act as an agent and was carrying the negotiations as principal to principal.

 

In this case the negotiations were admittedly carried on by the defendant as an agent because he took a cheque for a lac of rupees drawn by the plaintiff, (Ex. 5) and tried to strike a bargain with the seller on its basis. But this Article does not apply because from its language it is clear and, the learned Judges who decided the case Kesho Prasad v. Sarwan Mal (21 C W N 561) have pointed out that a suit contemplated by this Article is a suit in which accounts have to be rendered. There is no question of rendition of account in this suit.

 

No other article has been suggested as applicable by the learned counsel of the parties. It appears to be that the residuary provision, Article 120, applies to this case and the period of limitation is six years from the cause of action of the suit. The payment was made on the 3rd of April, 1948. According to para 5 of the plaint the plaintiff did not know that the transaction had failed for one year afterwards. The defendant has not denied this fact. It follows therefore and I hold, that the cause of action arose in or about April, 1949.? Demand for the refund was made by the plaintiff through a lawyer’s notice (Ex. 12) on 18th September 1951. This date (Actually 19‑9‑51) is stated in para 7 of the plaint as the date of the cause of action. This is not correct. The suit was, however, instituted on 24‑11‑1951 and is within time for purposes of Art. 120 however the time may be computed.

 

The result of the above discussion, in the order of the issues, is as follows :‑

 

The plaintiff paid Rs. 70,000 to the defendant on 3‑4‑48.

 

(2) (a) The cheque was not given to the defendant in the circumstances stated in para 3 of the written statement.

 

(b) The cheque for Rs. 30,000 dated 3‑4‑48 was not given by the plaintiff to the defendant in repayment of defendant’s money as stated in para 3 of the written statement.

 

(c) The defendant had not paid Rs. 30,000 to the plaintiff.

 

(3) The defendant is indebted to the plaintiff in the sum of Rs. 70,000.

 

I, therefore, decree the suit of the plaintiff for Rs. 70,000 with interest at the rate of 6% per annum from the date of the suit until realisation and costs. There is no question of the defendant getting costs under issue No. 5.

A. H.                            Suit decreed.

 

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