Arunachalam Chettiar vs Kasi Nevenda Pillai, Agent Of ...

on 13 April, 1914

Equivalent citations: 24 Ind Cas 1007

Arunachalam Chettiar vs Kasi Nevenda Pillai, Agent Of Messes. Ralli Brothers And Anr. on 13/4/1914

JUDGMENT

Sadasiva Aiyar, J.

1. The Subordinate Judge mistaken in saying that Exhibits V Series VI Series, VII Series and VIII Series
mention Ralli Brothers as the other contracting party they mention Messrs. Agence Ralli Freres" winch 1 take
to mean " The Agents of Ralli Brothers."

2. Probably they mean the Agents at Pondicherry of whom the 1st defendant alleges that he is only a
sub-agent (para-graph 6).

3. The lower Court's finding on the 4th issue cannot be accepted as it is vitiated by its misreading of these
documents he is requested to give a revised finding after considering the question whether he is merely a
sub-agent of the Pondicherry Agency and whether, if the contract was with the Pondicherry Agency, the 1st
defendant will evidence (if any) on the record as to the 1st defendant's undertaking to be personally liable
before coming to his conclusions. 4. He will also give a finding on the 3rd issue.

4. The time for the submission of the finding will be one month from the date of the receipt of the records
Seven days will be allowed for filing objections in compliance with the order contained in the above
judgment, the Suboridante Judge of Tanjore submitted the following

FINDINGS.--The above suit has been remanded for a revised finding on the evidence on record on the 4th
point and for a finding on the 3rd point.

2. 4th point--First defendant in paragraph 6 of his written statement says that he is merely the sub-agent of
Messrs. Ralli Brothers at Patukota. In his deposition as his witness, he swears that he was appointed sub-agent
at Patukota by the chief agent of Messrs. Ralli Brothers at Pondicherry. Exhibit I is a letter written by one of
plaintiff's Kariasthans apparently to the 1st defendant, in which he is described as the sub-agent of messrs.
Ralli Brothersat Patukota. Exhibits Viii and oracle are day book and ledger maintained by the 1st Patukota by
the chief agent of Messrs. Ralli brothers at Patukota. Exhibits VIII and VIIa are day-book and ledger
maintained by the 1st described as the sub-agent of Messrs. Ralli Brothersat Patukota. Exhibits VIII and
VTTT are day-book and ledger maintained by the 1st defendant. They are described as the accounts of
Messrs. Ralli Brothers' sub agency at Pattukota. These documents corroborate 1st defendant's statement that
he is only a sub-agent. I hold, therefore that 1st defendant was only a sub-agent appointed by the chief agent
of Messrs. Ralli Brothers at Pondicherry.

3. Exhibits V, Va and Vb are the sale memos relating to the contracts in question. They were executed by the
2nd defendant (alleged agent of the plaintiff) to the agent of messrs. Ralli Brothers at Pondicherry Exhibits
VII VIIa and VIIb are memos' of accounts relating to the said contracts" and it is stated in them that they are
accounts of 2nd defendant with the agent of Messrs. Ralli Brothers at. Pondicherry. It is, therefore, clear that
the agent of Messrs. Ralli Brothers at Pondicherry was in writing made the contracting party and that the
contracts in question were made" directly in his name.

4. The plaintiffs Pleader here has not pointed out to mo any authority to show that in the circumstances of the
ease, 1st defendant is personally liable for the plaint claim. He merely relies on the statement of the plaintiff
made in his deposition as his 1st witness that he looked to 1st defendant for payment of the money due in
respect of these contracts. These contracts were entered into, not by the plaintiff personally, but by the 2nd
defendant. In the plaintiff's accounts, Exhibits A" Series, no mention is made of 1st defendant's name in any
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 Arunachalam Chettiar vs Kasi Nevenda Pillai, Agent Of ... on 13 April, 1914

place, but it is shown in them, that the dealings are with Messrs. Ralli Brothers, Patukota. The plaintiff's
statement in the light of documents in the ease appears improbable and .1 do not believe it. I hold that the
contracts in question were with the agent of Messrs. Ralli Brothers at Pondicherry and that the 1st defendant
did not undertake to he personally liable to the plaintiff for the money alleged to be due in respect of the said
contracts.

5. Section 192 of the Indian Contract Act lays down that the sub-agent is responsible for his acts to the agent
but not to the principal, except in ease of fraud or wilfulness. Section 230 does not in terms apply to
sub-agents. ]f the agent of Messrs. Ralli Brothers at Pondicherry is to be treated as the principal and the
sub-agent (1st defendant) as his agent at Patukota, the principle of the decision reported in Tutika Basavaraju
v. Parry & Co. 27 M. 315. applies. I find the 4th point against the plaintiff and in favour of the 1st defendant.

6. The second defendant does not put in his appearance either in person or by a Pleader. The plaintiff's Pleader
and the 1st defendant's Pleader hero put in mamos asking me not to give any finding on the 3rd point and I,
therefore, record no finding.

5. This petition coming on for final hearing yesterday and this day after the return by the lower Court of the
findings on the issues referred by this Court of trial, the Court delivered the following

6. When this case came on before me on the 31st October 1912, the interested respondent (1st defendant) did
not appear and I called for a revised finding, believing in the light of the argument of the petitioner's Vakil
that a French expression used in Exhibits V Series et cetera meant : The Agents of Ralli Brothers." The
respondent's learned Vakil now tells mo that that expression has the meaning, "The Agency business carried
on by the Firm of Ralli Brothers." I am not quite sure that a respondent, who did not appear when an appeal or
a revision petition was called on or argued on the first day of the hearing, can afterwards appear as of right
and claim to be heard at later stages of the case without the permission of the Court. However, I shall allow
him to appear, assuming that such permission is required.

7. It is unnecessary to consider the meaning of that French expression further, for, whether the defendant is a
sub-agent under the agent of Ralli Brothers or is an agent directly of the Firm of Ralli Brothers, the contract
with plaintiff, was in writing, and, according to the ruling in Tutika Basavaraju, v. Parry & Co. 27 M. 315. the
presumption raised under Section230 of the Indian Contract Act is rebutted by the fact that the contract is
made in the name of the 1st defendant's principal (whoever he may be) and not of the 1st defendant.

8. As regards the Subordinate Judge's refusal to add Ralli Brothers as defendants, it is too late to add them
now, having regard to Section 22 of the Indian Limitation Act.

9. The petition is dismissed with only half of the 1st defendant's costs, as the lst defendant's failure to appear
on the first occasion has unnecessarily delayed the disposal of this case.

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