Madras High Court
Mayil Kotta Vatakka Veettil Kunchunni ... vs Kundur Kuttala Madathil Pitchu ... on 1 September, 1909
Equivalent citations: 5IND. CAS.758A
JUDGMENT
1. The Subordinate Judge has dismissed the suit, owing, it would seem, to a misapprehension of the true import of the expression "irrevocable". In the former suit the plaintiffs claimed the right to revoke the authority given to the first defendant, and based their suit altogether upon this right. This Court held they had no such right and dismissed the plaintiff's appeal expressly upon that ground. In the present proceedings the claim is not based solely upon a right to revoke the authority the plaintiffs ask the Court to dismiss the first defendant for misconduct and to take an account of what is due from the defendants and decree payment thereof together with the damages for loss occasioned by the first defendant's misfeasance. The first defendant has died since the suit was dismissed and we have only to decide whether the plaintiffs had, when the suit was instituted, a good cause of action and what is the effect, if any, of the first defendant's death pending the appeal.
2. The plaintiff's right to dismiss the first defendant or to ask the Court to do so for them dependi on the existence of a right to put an end to the contrast and in considering the question we must assume that the allegations of misconduct set out in the plaint are true. If they are true it cannot be disputed that the first defendant has been unfaithful and dishonest in the execution of the duty which he undertook. Now in every contract of service there is an implied condition that if the services be not faithfully rendered, the employer is entitled to put an end to the contract vide observations of Bowen, L.J., in Boston Fishing Co. v. Ausell 39 Ch. D. 339 : 59 L.T. 395, quoted with approval by Cozens Hardy M. B., in General Bill Posting Co. v. Atkinson (1908) 1 Ch. 537 : 77 L.J. Ch. 411 : 98 L.T. 432 : 24 T.L.R. 285 : 25 T.L.R. 178. The first defendant was not, no doubt, an ordinary servant bound to obey the orders and instructions of the first plaintiff in all that he did; he was employed as managing agent with wide powers of action on his own initiative but he was bound to act in all matters left to his discretion in good faith and to the best of his judgment solely for the benefits of his principal (vide Bowstead on Agency, 4th Edition, p. 117). His right to retain his position under the contract was dependent on his performing faithfully the duties which he undertook. It would be manifestly unjust to require the plaintiffs as the Subordinate Judge's decision would require them to continue for 18 years to employ an agent to rob them with no remedy except from time to time to claim damages for some misconduct and nothing in the law of contract nor in the agreement in this case compels us to work this injustice.
3. Whether the first defendant is rightly regarded as a servant or as an agent or as holding a fiduciary position resembling in respect of his duties the position of a trustee Cf. Burdick v. Garrick L.R. 5 Ch. 233 : 33 L.J. Ch. 369 : 18 W.R. 387. His right to retain his position depends on the faithful performance of duties attached to it.
4. The suit, therefore, was good when instituted. Mr. Sundara Iyer wants us to decide that it has abated with the death of the first defendant but the principle on which he relies is not applicable to a case like the present.
5. The decree of the Subordinate Judge must be reversed and the suit remanded for disposal on the other issues. If as we have been informed a suit by the first defendant's representatives has been instituted claiming relief against the plaintiffs after taking an account under the same agreement, the Subordinate Judge will have to apply the provisions of Section 10 of the Civil Procedure Code or if they are not applicable to arrange by adjournment or otherwise that it may not be necessary to try both suits separately and concurrently.
6. Costs to abide the event.