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Rajendra Singh Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 255 of 1972
Judge
Reported in1983WLN295
AppellantRajendra Singh
RespondentState of Rajasthan and ors.
DispositionAppeal allowed
Cases ReferredTrilok Nath Dhar v. Dharmarth Council
Excerpt:
civil procedure code - order 20, rule 16--suit for accounts--maintainability of--suit for accounts can be maintained between parties with special relationship when amount is not ascertainable with due diligence--defendant paying royalty, hire charges for pump & royalty tax--amount not ascertainable by plaintiff--held, suit for accounts is maintainable.;a suit for accounts is confined to specified cases where there is a special relationship between the parties such as a suit by principal against his agent or by a partner against another partner or a costui qua trust against his trustee is too narrow to be acceptable and is based on old and out moded practice prevalent in engl. and long ago.;a suit for accounts would lie where it is necessary to ascertain the amount of money due from.....dwarka prasad gupta, j.1. the question which arises in this appeal is as to whether a suit for accounts can be maintained except when there is specified relationship between the parties.2. the plaintiff's case is that he along with the proforma defendant vishwanath had taken up a contract from the state of rajasthan for completion' hon of works specified in the plaint. the plaintiff and the proforma defendant bad completed the works in respect of which the contract was given to them, but they have not been paid the full amount in respect of the work done by them and a sum of rs. 1,000/- has been wrongly deducted by the defendant the plaintiff also alleged that according to the terms of the contract she defendant was to supply material including coal and machinery like pumps, which the.....
Judgment:

Dwarka Prasad Gupta, J.

1. The question which arises in this appeal is as to whether a suit for accounts can be maintained except when there is specified relationship between the parties.

2. The plaintiff's case is that he along with the proforma defendant Vishwanath had taken up a contract from the State of Rajasthan for completion' Hon of works specified in the plaint. The plaintiff and the proforma defendant bad completed the works in respect of which the contract was given to them, but they have not been paid the full amount in respect of the work done by them and a sum of Rs. 1,000/- has been wrongly deducted by the defendant The plaintiff also alleged that according to the terms of the contract she defendant was to supply material including coal and machinery like pumps, which the defendants provided but no proper accounting bad been made. The plaintiff and his partner bad also deposited security deposits with the defendant which have not been refunded. The plaintiff requested the State Government to clear the accounts and make payment of the amount as may he found due to the plaintiff and his partner together with the amount of security deposits, but the defendant informed the plaintiff by his letter dated July 27, 1960 that as certain amounts lying to the amount of the plaintiff were under objection, no payment could be made to him. There was a stipulation about arbitration in the contract and the parties approached the Superintending Engineer for arbitration who gave an award, but the Court subsequently set the award given by the Superintending Engineer aside. As such the plaintiff filed a suit for accounts praying that a decree may be passed in his favour in respect of such amount as may be found due to him from the defendant State, together with interest there on 6% per annum.

3. The defendants refuted the various allegations made by the plaintiff and stated that nothing was due to the plaintiff, but on the other hand a sum of Rs. 4847.14p. was due against the plaintiff. It was also submitted that a suit for accounts was not maintainable.

4. The Munsif, Bhadra held that a suit for accounts was maintainable in the circumstances of the case and passed a decree in terms of Order 20 Rule 16 CPC and directed that a Commissioner be appointed to go into the accounts and ascertain the amount payable to the plaintiff after taking the accounts The first appellate court, namely, the Additional District Judge Shri Ganganagar, bow ever, took a different view and held that a suit for accounts was not maintainable in the present case and that the plaintiff should have filed a suit for a specific sum, after payment of court fees in respect thereof.

5. In the present appeal, the first point that was urged by the learned Counsel for the appellant was that a suit for accounts was maintainable in the circumstances of the case. It was urged by the learned Counsel that there was no prohibition in the Code of Civil Procedure against filing a suit for accounts and no restrictions were provided in respect thereof, except those contained in Order/Rule 2 Order 20 Rule 16 CPC. Order/Rule 2 CPC provides that wherein a suit the plaintiff seeks recovery of money, the plaintiff she and state the precise amount claimed, but where the plaintiff sues for manse profits or any amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaintiff may state the approximate amount of the suit or value sued for. Order 20 Rule 16 CPC provides the manner in which the preliminary decree in a suit for accounts between a principal and agent or in 'any other suit for accounts' has to be passed and runs as under.

16. In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore provided for, where it is necessary, in order to as certain the amount of money due to of from any party, that an account should be taken, the Court shall before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.

Learned Counsel for the plaintiff-appellant argued that the contents of para 15 and 16 of the plaint show that so far as the amount of royalty or tax and hire charges of pumps supplied by the State for use by the plaintiff-contractor were concerned, the plaintiff was not in a position to ascertain the exact amount which he had to pay to the defendant State and as such it was not possible for him to state the exact amount was due to him from the State, which could be arrived at only after deducting the amount payable by the plaintiff to the defendant. It was also argued that no final bill was prepared in respect of the work done by the plaintiff as the matter was in dispute between the parties and until accounts were finally settled and the final bills were prepared, the plaintiff was not in a position to maintain a suit for a specified amount of money.

6. In England, at common law the action for accounts lay in certain cases but the procedure was very unsatisfactory and gradually the court of Chancery began to assume jurisdiction in the matters of accounts and the remedy at common haw gradually fell into disuse. The superiority of the equitable remedy arose mainly from the facts that the Court of Chancery could compel the defendant to make discovery on his oath, which the common law courts could not do and further its ma chancery and administrative powers were better adapted for taking accounts than those of the common law courts. The jurisdiction of the Court of Chancery to order an account was of a two fold character, firstly, it had exclusive jurisdiction to order an account in aid of a purely equitable right, as for instance a cestui qua trust could obtain an account from his trustees, or a mortgagor from a mortgage, who had entered into possession. Similarly, a remainderman could c impel a tenant for life, whose estate was granted to him without impeachment of waste committed by him. Secondly, the court of Chancery had concurrent jurisdiction to order an account in certain cases in aid of a legal right, such as cases of principal against an agent. Normally an agent cannot obtain an account against his principal, but in equity a decree for account could also be passed against a principal in a proper case. Similarly a decree for 'count could be passed against an infringe of a patent, copyright or trade mark on the best's that the order of the right might treat the infringe as his agent. Similarly, where there were mutual accounts between the plaintiff and the defendant i.e. where it was not merely a case of one party receiving money and paying it on account of the other, but where each of the two parties had received and paid money on the other's account, a suit for account could He in equity. The court of Chancery also entertained a suit for account where there were circumstances of special complications rendering the taking of account difficult at law. A suit for account could also be filed in equity in connection with the power of granting an injunction to prevent the violation of a legal right. Thus, where the court grant d an injunction to prevent legal waste, it might order the defendant to a count for any profit derived from acts of waste already committed. The Judicature. Act of 1973 enlarged the jurisdiction of the court of Chancery to entertain an action for account so that an action could be brought in any case in which the equity or common law formerly had jurisdiction to order an account, as in the case of a castui qui trust against a trustee, by a beneficiary or creditor against an executor or administrator, by a mortgagor against a mortgagee, by a principal against an agent, and by one punter against another. But no suit for accounts could bi maintained by a customer against his banker, for the relations between the two was in no sense fiduciary, and is merely that of a debtor and creditor. Moreover, where property was held by several co-tenants and one of them was receiving the profits to the excisions of the others, or one co-owner alone works mines under the joint land, the remedy of the other co-sharers lay in seeking accounts and not trespass. And where a person is in possession of land or immovable property belonging to a minor, the court treated him as a bailliff and not trespasser or person in adverse possession He was thus accountable for proper rent for occupation, less the cost of repairs' and less a reasonable amount for expenses (See Snell's Principles of Equity, 27th Edition).

7. On the basis of the principles of English Jaw a view was taken in some cases in our country that a suit for rendition of accounts is a special and unusual form of remedy which could be used only in some well recognized circumstances. In Gulam Kutabudin Khan v. Miaz Faiz Baksh and Ors. AIT 1925 Lahore 100, a building contractor expired and his sons filed a suit for rendition of accounts. A preliminary decree for accounts was passed by the two courts below, but the. I there High Court set aside the preliminary decree and observed as under on the basis of an earlier decision of the same High Court in Jowckar Singh v. Haria Mal (1899) 60 Punjab Reports 189.

the right to claim a statement of accounts is an unusual form of relief only granted in curtain specific cases and is only to be claimed when the relationship between the parties is such that this is the only relief which will enable the claimant to satisfactorily assert his legal rights.

The learned Judge of the Lahore High Court observed that as there was no duty cast upon the defendant under the law to keep accounts, a proper relief to claim by the plaintiff in the suit was for specific sum of money and the defendant may be called upon to produce account books in evidence. It was pointed out that under Section 213 of the Contract Act, an agent was under a statutory duty to render account to his principal, but the principal was under no counter-statutory obligation of the same nature towards the agent. In Bal Kishan & Co. v. Ram Nath AIR 1940 Lahore 195, it was held that a suit by a constituent for an account was not maintainable against the Pukka Adhatiya' because the relationship between the constituent and the Pakka Adhatiya was not that of a principal and an agent. It was held that only a suit for a liquidated sum of money can be maintained against the Pakka Adhatiya, as the calculation of the sum in on sense involves the taking of account but was a matter of simple mathematical application to the facts within the knowledge of both the parties. In Panna Lai and Ors. v. Ram Richpal and Ors. AIR 1940 Lahore 120, following the principle laid down in Jowar Singh's case (1899) 60 Punjab reports 189, it was observed that a suit for accounts was ah unusual form of relief which could only be maintained in certain specific cases and could only be claimed, where relationship between the parties was such that it as the only relief which could enable the claimant to satisfactorily assert his rights. In that case, a coherer against another, who had realized rent from the tenants, including the share of the plaintiff, filed the suit. It was held that the plaintiff, who claimed his share of the rent realized by the defendant, court maintain the suit for accounts, as the amount of rent realized was peculiarly within the knowledge of the defendant and it would be very difficult for the plaintiffs to ascertain the exact amount which they could claim, without the assistance of the defendants, In these circumstances, it was held that the relief of rendition of accounts was justified. In Firm Jassaram Bhagwan Dais v. Rattanchand Fatehchand . The practice prevalent in the courts in England, which has been referred to by Snell to his book 'Principle of Equity' and to which I have already made a reference above, was followed and it was held that an agent could not obtain a decree for accounts against his principal, for the agent has usually all the knowledge requisite to support his right and reposes no special confident in his principal. It was also held in that case that before being able to obtain an order for account, the plaintiff must satisfy the court that the document was an accounting party. In Ram Lai Kapur & Sons v. Asian Commercial Assurance Co. Ltd. AIR 1933 Lahore 483, an insurance agent filed a suit against his principal for accounts on the basis that he was not aware of the account of remuneration which was payable to him by way of commission, calculated on the prima of all insurance policies effected or introduced through the plaintiff. In that case, it was held by a learned Judge of the Lahore High Court that the principal is not an accounting party add the agent has no right to call upon him to account, Yet it was observed that it was not a hard and fast rule that under no circumstances can an agent call upon his principal to give an account. So a suit by the principal to claim an account from his agent is generally found on the fiduciary character of the agency, but the right of the agent has no such equitable basis, yet in certain cases the relationship between the parties may be such that the taking of account can be the only relief which would enable the claim met to satisfactorily assert his legal right. It was observed in the aforesaid case as under.

While no doubt the plaintiffs are aware of all policies affected or introduced through them they cannot certainly know which of these policies have lapsed, matured or been forfeited. Consequently it would not be possible for them to calculate what commission would be payable to them on policies affected through or introduced by them as agents of the Insurance Company. It was contended on behalf of the defendants-respondents that the plaintiffs could have requested the Insurance Company to furnish them with a statement of the policies in force and claim the account of commission due to them as a specific sum, but in view of the litigation that had already ensued between the parties, do not think that the plaintiffs would have been supplied with the information in question.

8. In Diwan Chand Santram v. Bhagat Ram and Ors. AIR 1946 Lahore 82. Teja Singh, J. exhaustively dealt with this question. In that case three brick-kiln owners agreed to supply bricks from their kiln and charge specified rates for different kinds of bricks, and the shares of the three kila owners were fixed and it was agreed between them that the parties would not sell bricks above their quota, but in case a party made a sale over and above his quota, he shall share profits according to the proportion of the sale agreed upon between them. It was alleged by one party that the other had sold bricks above their quota and according to the terms of the agreement between tie parties, plaintiff was entitled to a share in the profits made by the defendants. The question was raised that a suit for accounts was not maintainable as there was neither a relationship of principal and agent between the parties nor they were partners in a joint business, but the parties were different firms which were respectively the owners of their kilns. In the aforesaid circumstances, Teja Singh, J., observed as under.

On the authority of these cases I have no hesitation in holding that the proposition that a suit for accounts can only be brought by a principal against his agent, or by one partner against mother partner or by a cestui qui trust against his trustee is too narrow to be acceptable. The comet position is that the plaintiff must satisfy the court that either because of a particular trade, usage or of the peculiar relations between the parties the defendant is an accounting party or it is not possible for him to get any relief except by calling upon the defendant to render account to him and if he does that the suit for account would lie. There is no question of trade, usage in the present case, but in view of the contract between the parties which the lower appellate court bas held proved, I have no doubt that the action for rendition of accounts was properly brought.

In Lakashmiji Sugar Mill Co. v. Banwari Lal Tandon : AIR1959All546 , if was held that although there was no provision for a suit by an agent against his principal, either in the Contract Act or in the Limitation Act, & normally such a suit would not lie but in the circumstance specified, a suit for accounts was maintainable. It was father observed as under in the aforesaid case.

It is, therefore, clear that the exceptional circumstances of the agent not being able to claim a specific sum without the principal's accounts being gone into must exist. If this circumstance doe not exist a suit for accounts by the agent would be clearly non-maintainable.

In the aforesaid case, their Lordships of the Allahabad High Court followed the decision of their Lordships of the Madras High Court in Ram chandra Maahavdass Co. v. Hoovaka Mohunkutti Birankutti and Brothers AIR 1938 Mad 707, which was again a suit where an insurance agent claimed rendition of accounts from his principal. It was observed in the last mentioned case that only in exceptional cases, where the remuneration of the agent depends on the extent of dealings which are not known to him or where he could not be aware of the extent of the amount due to him unless the accounts of his principal are looked into, a suit by an agent against his principal would be competent. If the exact amount of money claim is known to him, the form in which a suit can be filed is the one for a specific sum of money.

9. In Kanhayalal Supdubhai v. Hiralal Deoram AIR 1947 Bom. 255, it was held by their lordships of the Bombay High Court as under.

A suit does not necessarily become a suit for accounts because the plaint asks for an account. The plaint must show that the defendant is an accounting party and that the plaintiff claims on the footing that an account has to be taken to ascertain the sum due to him. A suit for an accounts is a special form of suit. It does not mean every case in which accounts have to be looked into in order to ascertain the correctness or otherwise of the amount claimed by the plaintiff. A suit for an account only lies where defendant is under an obligation to render accounts to the plaintiff. There must be something more than a mere relationship of debtor and creditor. The defendant must stand in some other relation to the plaintiff, such as that of agent or bailee, or receive or trustee, or partner or mortgagee.

It was held in that case that the mere fact that in ascertaining the sum due to the plaintiff, it would be necessary to investigate into accounts, does not alter fie nature of the suit.

10. In Anant Ram Munshi Ram v. Spading Dinga Singh and Co. and Ors. , the plaintiffs, who were contractors, pleaded that on the basis of the agreement executed by the defendants, they had under taken to transport timber belonging to the defendant Company from river Ravi to various places. The plaintiff alleged that complete and correct accounts were with the defendants and on that basis instituted a suit for rendition of accounts, in respect of the amount payable to them for the work done. A learned Judge of the Punjab High Court observed as under

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 restored to in suits between principal and agent, between partner & other persons between whom there is a fiduciary relationship and also privacy of contract. This remedy is not confined to suits between principal and agent or between partners. In equity, a suit for accounts is entertain able 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 predetermined 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 cerium redial potest-which means that is certain which may be rendered certain.

It was further observed in that case that

The test is 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.

11. The learned Judge was of the opinion that in the case before him there were special circumstances on account of which the plaintiff could not, of his own, assess the amount due to him before instituting the suit, as he could not have information in his possession with regard to the amount of work got done through other contractors and on account of dispute with the partner of the plaintiff, he was left without complete accounts.

12. A Full Bench of the Punjab High Court in Firm Ram Dev Jai Dev v. Seth Kaku AIR 1950 East Punjab 92 (FB), dealt with the question at considerable length. After an exhaustive discussion of the matter S.R. Das, C.J., as he then was, observed as under.

Further a suit for account is not necessarily confined between a principal and agent. Wherever it is necessary, in order to ascertain the amount of money due to the plaintiff, he may ask the Court to pass a preliminary decree for accounts to be taken by or under the supervision of the Court See order 20 Rule 16. In this case according to to the defendant-appellant himself there were no less than 114 contracts for purchase or sales and it has to be ascertained which contract was wiped out or squared up by which contract, what was the resulting profit or loss in respect of such cross-contracts, what amount have been paid by or on behalf of the plaintiff respondent from time to time and how the same have been appropriated and what amount, if any, is now due to him. This is pre-eminently a matter for accounts and the defendant cannot avoid the accounting only on the plea that all the contracts are within the knowledge of the plaintiff.

In the aforesaid case, Kapur, J. referring to the the provisions of Order 7, Rule 2 and Order 20 Rule 16 CPC observed as under.

These two provisions show that a Court can order accounting not only where the suit is between Principal & agent but where it is necessary to ascertain the amount of money due from one party to another, or where after due diligence, it is not possible to ascertain the sum of money which is due from one party to another. It is not absolutely necessary that such a suit lies only where the parties stand in the position of Principal and agent to each other.

13. The same view was also taken in the case of The Punjab National Bank Ltd. v. Kripa Ram and Ors. , where a suit for accounts was filed against displaced persons to wham sums of money were advanced by plaintiff in Pakistan. After their migration to India, such displaced constituents claimed the amount due from the Bank and as he was not in a position to find out the exact amount due in his favour, he filed a suit for accounts. It was held that the suit for accounts was maintainable in the circumstances of the case.

14. In Narmada Chandra Banerjee v. Maharaj Bahadur Singh Duggar AIR 1937 Cal. 359,a suit for accounts by pleader against his client for a sewn due, in respect of his professional work done on behalf of his cheat, was held to be not maintainable on the ground that the principal owns no obligation to render accounts to the agent and the mere fact that in ascertaining the sum due to him, it would be necessary to investigate the accounts, did not in any manner authorize him to maintain a suit for accounts against the defendant.

15. In Firm Bhawani Sahai Salig Ram v. Chajju Mai and Ors. AIR 1937 Al. 276, it was held that the provisions of Order 20 Rule 16 CPC were not limited to a suit for accounts between principal and agent, but the words used in the rule were wide enough and apply to all cases where the court, instead of settling the accounts considers it necessary to stay its hand in order to ascertain the amount of money due to the agent or from the principal or from any party, by having on account taken before a Commissioner. If in order to ascertain the amount of money due to or from any party, an account is to be taken then the court may pass a preliminary decree directing such accounts to be taken, as it may think fit.

16. In Union of India v. Khatra Mohan Banerjee : AIR1960Cal190 , a suit was brought by the plaintiffs, on the original side of the Calcutta High Court, against the Union of India for recovery of money said to be due to them for work done in accordance with the contract. The trial judge, after recording his decision on the reversal issues, directed a reference for the ascertainment of the accounts due and payable by the defendant to the plaintiff. The learned Judge directed the referee to take accounts on the footing of certain measurements, for ascertainment of accounts. A Bench of the Calcutta High Court held that the order passed by the trial Judge was in accordance with the provisions of Order 20 Rule 16 C.P.C.

17. In Life Insurance Corporation of India v. Gurdial Singh , following the decision of the Full Bench in Ramdev Jaidev's case AIR 1950 East Punjab 92 (FB), it was held that the plaintiff could be given relief after rendition of accounts and that there was no bar for a suit for accounts, though ordinarily the plaintext would not be entitled to file a suit for accounts if it may be possible for him to ascertain the specific sum of money due to him from the defendant.

18. In State of Jammu & Kashmir v. Tota Ram AIR 1971 J & K. 71, after citing some of the cases referred to above, a Bench of the Jammu & Kashmir High Court observed as under.

Therefore, applying the tests laid down in various authorities on the subject, we have only to repeat that the plaintiff's attempt in converting a suit for a definite sum, which he could claim against the defendants, into a suit for accounts is a device unknown to the law and cannot be either upheld or e, couraged. The mere fact that he pretended not to know the exact amount due to him would not make any difference in his case or for that matte the statement of some Executive Engineer that he was not in a position exactly to state what amount was due to whom amongst the contracting parties did not make any difference. The suit as framed is bad and would not lie.

Their Lordships were also dealing with the case filed by a work contractor against the State Government for rendition of accounts, relating to construction work. But in that case the measurements of the work done by the contractor were recorded in the relevant measurement books and the final bill was prepared which the plaintiff claimed to have executed under pressure.

19. The aforesaid decision was followed by a Full Bench of the Jammu & Kashmir High Court in the case of Trilok Nath Dhar v. Dharmarth Council, Sri Nagar and Ors. AIR 1975 J & K 76. In that case the earlier Division Bench judgment in Lala Tota Ram's case AIR 1971 J & K 71, was followed and it was held that the scope of a suit for accounts was limited to certain number of cases, for instance between one partner against another, between the beneficiary against the executor or administrator, between mortgagor and the mortgagee, cestui qui trust against a trustee and a principal against an against. But no suit for accounts can be maintained by a promise against a promise or as between two contracting parties. It was observed that the defendant did not stand in any fiduciary capacity so as to impose upon him any legal obligation to render account to the plaintiff, the relations between the parties being that of a contractor and contractee or a promisor and promisee. In fact, it was found in that case by the Full Bench of the Jammu and Kashmir High Court that the contractor had completed both the works and his own witness admitted that the plaintiff had received full and final payment of the construction work and it was held that the plaintiff merely pretended to know nothing about the amount out-standing and only on that basis he filed a suit for rendition of accounts, although the same was ascertained and could be ascertained from the accounts maintained by him.

20. A consideration of all the aforesaid cases go to show that the proposition that a suit for accounts is confined to specified cases where there is a special relationship between the parties such as a suit by principal against his agent or by a partner against another partner or a castui qui trust against his trustee is two narrow to be acceptable and is based on old and out mode practice prevalent in England long ago. In my view, the maintainability of a suit for accounts in India has to be judged on the basis of the provisions contained in Order 7, Rule 2 CPC and order 20 Rule 15 CPC, which are the relevant provisions governing the maintainability of such suits. It is thus well established that a suit for accounts would lie where it is necessary to ascertain the amount of money due from one party to another and where even after due diligence it is not possible for the plaintiff to ascertain the sum of money which is due from one party to another without the assistance of to defendant or without looking into the accounts of the defendant. Order 7, Rule 2 itself provides that where the plaintiff seeks recovery of money, the plaintiff should state the precise amount claimed. Thus where the amount due to the plaintiff is ascertained or could be reasonably ascertained by exercise of the diligence by the plaintiff then a suit for accounts would not lie and in such circumstances the plaintiff should file a suit for the recovery of specific amount. Merely because the plaintiff proceeds that he does not know the exact amount due to him from the defendant would not entitle him to maintain a suit for accounts and any attempt by the plaintiffs by some ingenious device to convert a suit for definite sum into a suit for accounts must be discouraged. But if the plaintiff is not in a position genuinely to find out the exact amount due to him from the defendant and if there are no means at his disposal to ascertain the precise amount due to him from the defendant or if there are cross claims arising between the parties and the plaintiff has to pay some amount to the defendant for some goods supplied to on or work done by the defendant on behalf of the plaintiff, then there could be n o bar to the maintainability of a suit for accounts as amount due to the plaintiff to the defendant has yet to be ascertained and deducted from the amount due to the plaintiff from the defendant. In such a case, the plaintiff may ask the court to pass a preliminary decree under Order 20 Rule 16 CPC for taking of accounts by or under the supervision of the court. In such suit, the plaint ff has to satisfy the court that it is not possible for him to account any relief except by calling upon the defendant to produce his account in is respect of all or some of the items which may form the subject matter of the suit. Thus apart from the cases where particular kind of relationship exists between the parties to the suit, such as a partner and partner, a principal and agent, a mortgagor and a mortgagee, a cestui qui trust and a trustee, or between coherers or other fiduciary relationships, a suit for accounts would also lie where it would be the only relief which could entitle the claimant to satisfactorily assert his legal rights.

21. It appears that although the earlier judgments of the Lahore High court were brought to the notice of their Lordships of the Jammu & Kashmir High court, while deciding the case of Lala Tolaram's case AIR 1971 J & K 71 & Trilokinath Dhar's case AIR 1975 J & K 76, yet the subsequent Full Bench judgment of the East Punjab High Court in firm Ramdev Jaidev's case AIR 1950 East Punjab 92 (FB) does not appear to have been brought to their lordship's notice. With great respect to the learned Judges of the Jammu & Kashmir High Court who decided Lola Tola Ram's case AIR 1917 J & K 71, and Trilokinath Dhar's case AIR 1975 J & K 76. I am unable to agree with them that the scope of filing a suit for accounts is limited only to cases where particular kind of relationship exists between the parties, and such a remedy would not be available in other cases where genuinely the plaintiff is not in a position to seek any other relief from the court in assertion of his legal rights, except the taking of accounts between the parties by or under the supervision of the court. In my humble view, proposition should not be so narrowly laid down, as to exclude a suit for accounts in all other cases except those where the plaintiff discloses a particular fiduciary nature of relationship between the parties. But the question about the maintainability of a suit for the accounts should be considered on the touch stone of the provisions of Order 7 Rule 2 CPC. Thus, where a plaintiff can file a suit for the recovery of a specified amount, he should seek recovery of the precise amount, even though the process of ascertainment of the amount due to him may be some what difficult or long drawn out. But wherefrom his own accounts the plaintiff is unable to spell out the precise amount which is due to him from the defendant & the real position could only be ascertained after taking of accounts from both the parties or from the defend only the be filing of a suit for accounts cannot be completely ruled out. I am in respectful agreement with the view taken by the learned Judges of the Full Beach of the East Punjab High Court in Ramdev Jaidev's Case 1899 60 Punjab Reports 189, which was a case of a Pakka Ardhia who is not considered to be an agent but who deals with his constituent as a principal to principal. Learned Judge of the Punjab High Court definitely laid down the preposition that a suit for accounts is not necessarily confined to case where a particular kind of relationship existed between the parties, like that of principal and agent. In those case, where in view of the terms of the contract between the parties, there are cross obligations placed on both the parties, then the plaintiff would not be in a position to file a suit for specified sum of money, unless the amount due to the other perty is disclosed by him and the accounts of both the parties are gone into; or where the defendant is the accounting pray, then the defendant has to render accounts to the plaintiff, the latter would not be in a position to find out the precise amount due against the defendant, the proper remedy for the plaintiff would not he to file a suit for accounts & in my view such a suit would he maintainable, having regard the provisions of Order 7 Rule 2 and Order 20 Rule 16 CPC.

22. Applying the aforesaid principles to the facts of the present case, it is clear from the averments made in paras 15 and 16 of the plaint to the effect that the defendant had paid royalty tax on behalf of the plaintiff, which was payable by him and similarly the defendant was to be paid by the plaintiff hire charges for pumps supplied by him, but the defendant has neither rendered accounts nor disclosed to the plaintiff the amount which the defendant had paid to the concerned department by way of royalty tax or the amount which was due to the defendant from the plaintiff on account of hire charges of pumps. It has also been stated in the plaint that the final bills have not been prepared and finalized and as such the plaintiff was not in a position to ascertain the precise amount which was due to him from the defendant the contracts were entered into in the year 1956 and the work had also been finished in the year 1957; yet the final bills were not settled till the plaintiff filed the suit on November 16, 1965. Further the plaintiff was not in a position to know the exact amount payable by him to the defendant on account of the two items referred to above. In such circumstances it appears reasonable that the plaintiff could not even with due diligence, find out the precise amount which was due to him from the defendant and as such a suit for accounts is maintainable, as the relief for taking accounts was the remedy which the plaintiff could claim in the present case.

23. As a result of the aforesaid discussion, the appeal is allowed and the decree and judgment passed by the Additional District Judge, Ganganagar is set aside and the preliminary decree for accounts under Order O Rule 16 CPC, passed by the Munsif, Bhadra dated January 9, 1969 is restored. The trial court should now appoint a Commissioner to go into the accounts and ascertain the amount of money due to the defendant from the plaintiff, as directed by the trial court. It may be observed here that the learned Additional District Judge, Ganganagar has given his findings on some of the issues relating to accounts, which will have to be gone into now by the Commissioner As such it is made clear that the findings recorded by the Additional District Judge, Ganganagar in his judgment under appeal in respect of such issues is set aside and such finding shall not be binding on the Commissioner or the trial court. On the other hand, the Commissioner as well as the trial court would be free to arrive at their own conclusions after taking of accounts in respect of such matters.

24. As the suit out of which this appeal arises was filed in the year 1965, the trial court is directed to expedite the disposal of the proceedings for preparation of the final decree.


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