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4. (After dealing with certain items claimed in appeals Nos. 766 of 1948 and 767 of 1948, the judgment proceeds as under :--) The last item pressed upon as relates to a sum of Rs. 8510 which is the profit earned by Ramalingam on certain transactions which we shall now mention. The Sugar Control Order came into force in April 1942 and the prices of sugar were fixed both ex-factory and in the open market. What Ramalingam did was, he got himself appointed as a sugar dealer, purchased large quantities of sugar at Rs. 31-15-0 the controlled price ex-factory, and sold it to outsiders at Rs. 32-8-0 the controlled price for outside sales, and pocketed the difference of nine annas per bag. The learned Judge has found on the evidence that the sugar purchased by Ramalingam continued to remain in the company's factory premises and Ramalingam used the company's staff & premises for his own business as a sugar dealer. The ledger folio of Ramalingam in the company's accounts shows that on 13-6-1942 Ramalingam purchased 15128 bags of sugar for over Rs. 4,83,000. But he never paid the amount to the company. His account was debited with this amount. This quantity of sugar which remained in the company's premises was being sold over several days and the amounts fetched by the sales were being credited in his account. The sum of Rs. 8510/- represents the difference between the price at which Ramalingam purchased calculated at Rs. 31-15-0 and the price at which he sold in the market, namely, Rs. 32-8-0. The learned trial Judge observed that he would have had no hesitation in giving the company a decree for this amount on account of the fact that Bamalingam had utilised the office staff for his own business but ultimately dismissed the company's claim on the ground that it was barred by limitation, we agree with the District Judge that the company was entitled to this amount. Therefore, the question of limitation remains to be considered.

6. An analysis of the nature of the plaintiff's claim for this amount of Rs. 8510/- would clearly show that Article 36 has no application. Obviously, this amount is not claimed as compensation for any tortious act oh the part of Ramalingam. The basis of the company's claim is really to be found in the well known equitable principle now embodied in Section 88 of the Trusts Act, which is as follows:

"Where a trustee, executor, partner, agent, director of a company, legal adviser or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealing under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained."

7. Article 90 would not in this view of the nature of the claim apply to the case. That Article is the residuary article dealing with claims of a principal against an agent. We are inclined to hold that the neglect or misconduct contemplated by the article is neglect or misconduct in the course of and intimately connected with the agency duties, 'qua' agent. It is in this view that this article has been applied to cases where a principal sues the agent to recover the secret profits made by the agent. In the present case, it would not be accurate to speak of the sum of Rs. 8510 as secret profit made by the agent. It is not as if Ramalingam was appointed an agent of the company to sell at a particular rate and Ramalingam sold at a higher rate and secretly pocketed the difference. As the learned trial Judge observed, it cannot be said that Ramalingam was doing anything 'per se' illegal, to use the language of the learned trial Judge. Ramalingam's actions were all 'intra vires'. To such a case Article 90 would not have application. This is a case where the basis of the claim is not neglect or misconduct, but the advantage taken by a person in a fiduciary capacity of his position to make a gain. The law says that such a person shall not keep that gain to himself but shall give it up to the person to whom he owes a fiduciary duty. To such a suit there is no other article applicable and therefore Article 120 must apply. The decision of the Full Bench of this court in -- 'AIR 1938 Mad 353 (C)', supports us in this view. The suit was filed in 1945 and is well within the time of six years provided by Article 120. We therefore do not agree with tile learned Judge that the claim is barred by limitation. To this extent we allow this appeal and pass a decree in favour of the company for Rs.