(1) The facts giving rise to this regular second appeal preferred by the plaintiff are that on 23rd December,, 1949, an agreement, Exhibit D. 1, was executed between Messrs. Anant Ram Sant Ram of the one part and Messrs. Spedding Dinga Singh and Company, defendant No. 1 on the other part. At the time of the execution of the agreement the present plaintiff Anant Ram was working in partnership with another person Sant Ram. According to the terms of this agreement, the plaintiff and Sant Ram, as contractors, had undertaken to catch, collect, raft and transport timber belonging to the defendant-Company from river Ravi at various places mentioned therein.
For this work, the contractors were to be paid at different rates specified in paragraph 19 of the agreement, depending on the varying lengths of the beams. Paragraph 19 of the agreement may be reproduced below for the sake of convenience:
'That in consideration of the above, the contractors will be paid the following rates and in case they will find any difficulty with the labour on account of any increase in the prices of the market or during the harvesting season, they will not demand any enhancement in the rates.
For catching, collecting, rafting, landing and stacking at khurku and Madhopur Depots and carting to Pathankot, Company's all timber which may go adrift into the Chhandas including the timber lying scattered or buried in the fields, below Shahpur Kahndi to Madhopur Head Works on the River Ravi.
Beams 12' and Up and BGs 16' and Up.. Rs. 95/10/- %
Beams 6'-10', BGs 8'-14-, MGs 9'-16' Balas large
(with cubic capacity over 2 1/2 ft.) Poles 10'-16'.. Rs. 63/12/- %
'Beams 4/5', BGs 6/7', MGs 6/8', Bales small
(with cubic capacity 2 1/2 ft. or under), Poles 6'-9', dimdims, planks, Pasels, pieces, Phangs, etc.... Rs. 31/4/- %
For catching and collecting, rafting, landing and stacking at Mahdopur (Dams), Sujanpur and Sarna and carting to Pathankot, Company's all timber which may go adrift into the Upper Barl Doab Canal below Madhopur Head Works to Sarna.
Beams 12' and Up and BGs 16' and Up.. Rs. 82/8/- %
Beams 6'-10', BGs 8'-14'-, MGs 9'-16', Bales large
(with cubic capacity over 2 1/2 ft.) Poles 10'-16'
.... Rs. 55/- %
Beams 4/5', BGs 6/7', MGs 6'-8', Balas small
(with cubic capacity 2 1/2 ft. or under), Poles 6'-9', Dimdims, Planks, Pasels, pieces, phangs etc.
.... Rs. 27/8/- %
(2) This work was to be done between January, 1950, and December, 1950. During this period, Sant Ram, defendant No. 2, left the work and Anant Ram plaintiff carried it on after having joined Mehar Chand as a partner, but Mehar Chand also left the partnership and later he joined Raghunath Singh as his partner. Previous to the institution of this suit, Raghunath Singh had brought a suit against Anant Ram for dissolution of partnership and for rendition of accounts. The Spedding Dinga Singh and Company was also impleaded as a party to that suit. On 3rd of June, 1952, the Subordinate Judge decreed the suit. The partnership was dissolved and a sum of Rs. 5,675/- was found due to Raghunath Singh against Anant Ram. The Subordinate Judge observed that the only asset of the partnership to be really reckoned was the amount due from the Company for the work done, and he found that in the circumstances of the case the amount due from the Company 'is not a reasonably definite sum'. In view of this complication, the entire claim against the Company was put to auction between the parties and Anant Ram bid Rs. 5,500/- for it.
(3) The present suit has been instituted at the instance of Anant Ram. In the plaint it was stated that defendant No. 1, the Company, used to prepare a challan for the timber in question, the Forest Department used to issue permits and the Canal Department used to levy fees which used to be paid by the defendant-Company. The plaintiff's accounts used to be maintained by Raghunath Singh. On account of dispute with Raghunath Singh, the plaintiff could not maintain complete accounts.
In paragraph 5 the plaintiff gave approximate quantities of the sleepers with respect to which he did the work entrusted to him but stated that the quantities were being given in accordance with the statements of Seetal Das and Bali Ram, employees of defendant No. 1 made in the previous suit which had been instituted by Raghunath Singh. He also specifically mentioned that complete and correct accounts were with the defendant.
(4) The defendant in his written-statement did not deny having kept accounts but objected to the plaintiff's instituting a suit for rendition of accounts as according to the contesting defendant, such a suit was not maintainable. This preliminary objection gave rise to three issues, namely:
1. Whether the suit for accounts is maintainable for the work actually done by the plaintiff upto the date when he left the work of carrying the timber to the godowns of the defendant.
2. Whether the suit is not maintainable qua the collection of timber which was left at Madhopur.
3. Whether the Court has no jurisdiction to try the suit as alleged.
(5) Both the Courts below decided issues Nos. 1 and 2 against the plaintiff holding that the suit for accounts was not maintainable in the circumstances of this case. Issue No. 3 was found against the defendant and it was held that paragraph 8 of the agreement did not contain an arbitration clause on account of which the dispute was exclusively referable to arbitration and, therefore, could not be disposed of by a civil Court.
According to the lower appellate Court, there was no dispute between the parties with regard to the interpretation of any clause of this agreement and the claim as put forward by the plaintiff was not covered by clause No. 8. In view of the decision on the first two issues, the plaintiff's appeal was dismissed. He has come up in second appeal to this Court.
(6) There is no doubt that a suit for accounts is an extraordinary remedy which is available to the plaintiff under special circumstances. Such a remedy is frequently resorted to in suits between principal and agent, between partners and other persons between whom there is a fiduciary relationship and also privity of contract. This remedy is not confined to suits between principal and agent or between partners. In equity, a suit for accounts is entertainable where there are circumstances of special complication necessitating the taking of accounts.
The ordinary remedy at law is a claim for a sum certain. A sum certain may not be a pre-determined specific amount if it is ascertainable, though not ascertained and it would be deemed to be a sum certain according to the well-known maxim-Id certum est quod certum redii potest-which means, that is certain which may be rendered certain.
(7) But in this case I do not think that the defendant can avail himself of the above maxim, as in view of the special circumstances of this case the plaintiff, before instituting the suit, could not on his own assess the amount due to him. This difficulty is created not only by the fact that the accounts were maintained by Raghunath Singh or that the amount due from the Company to the plaintiff was not 'a reasonably definite sum' as found by the Subordinate Judge in the previous suit referred to above.
The difficulty in this case arises because there were fixed rates for several types of work, namely catching, collecting, rafting, landing, stacking of the timber and of carting it to Pathankot. This work could not be carried through by the plaintiff because differences arose between the parties, and the plaintiff because of alleged irregularities in the making payments, committed by the Company, stopped doing this work, in May 1950. Part of the work was, therefore, done by the plaintiff and part of this work was got done by the defendant.
Without knowing the exact quantity of work which was done by the plaintiff and which was got done through others by the Company, it is not possible for the plaintiff to fix an exact amount. Under these circumstances, he can only fix an arbitrary figure and claim the amount.
(8) The test in all such cases is whether, having regard to the terms of the agreement between the parties and the nature of the work done by the plaintiff, it was possible for him to bring a suit for a definite amount or for an amount which was ascertainable, or on the other hand, a total sum could only be determined after the accounts in the possession of the defendant had been examined. In this case obviously the plaintiff could have no information in his possession with regard to the amount of work got done after May, 1950, through other contractors. Furthermore, the accounts on plaintiff's side were being maintained by Raghunath Singh and on account of dispute between Raghunath Singh and the plaintiff, there were not left with the plaintiff complete accounts.
(9) In view of the special circumstances of this case and of the nature of complexity mentioned above, the plaintiff cannot be non-suited on the ground that he should have instituted a suit for a specific sum. It was held by S. R. Das, C. J., when delivering the judgment of the Full Bench in Firm Ram Dev Jai Dev v. Seth Kaku, (1950) 52 Pun LR 31: (AIR 1950 EP 92), that a suit for account is not necessarily confined between a principal and agent. Wherever it was necessary, in order to ascertain the amount of money due to the plaintiff, he might ask the Court to pass a preliminary decree for accounts to be taken by or under the supervision of the Court. Reference may also be made to Punjab National Bank Ltd. v. Kirpa Ram, (1954), 56 Pun LR 135: (AIR 1954 Punj 176).
(10) For reasons stated above, I am satisfied that the plaintiff was entitled to institute a suit for accounts and such a suit was competent. I, therefore, set aside the decision of the Courts below and remand the case to the trial Court for decision on merits. This is very old case, having been instituted on 24th of December,, 1952, and the trial Court is directed to dispose it expeditiously. The parties are directed to appear before the trial Court on 22nd of February, 1960, when further proceedings on remand may be taken. The costs of the appeal will abide the result of the suit.
(11) Order accordingly.