1. This appeal is directed against the preliminary judgment and decree of the Subordinate Judge of Sivaganga in a suit for accounts, O.S. No. 30 of 1951
2. The facts are:--The plaintiff Karuppiah Pillai was conducting a money-lending firm at Kuaa Lumpur (Malaya) under the name and style of PR. K. KR. It has been managed by agents appointed by him under the terms and conditions obtaining amongst the Nattukottai Chettiars. The first defendant who is a close relation of the plaintiff was sent to Kuala Lumpur as the agent of the plaintiff, since his son Narayana Pillai was coming back to India. The conditions of service under which the first defendant was appointed as agent have been set out in paragraph 4 of the plaint. In accordance with the practice prevailing in those parts the first defendant executed a salary chit to the plaintiff on 24th November, 1939 and left for Kuala Lumpur on 7th January, 1940 and reached there on 22nd January, 1940. The plaintiff's son executed a power-of-attorney to the first defendant for managing the concern. Sometime later the second world war broke out and Kuala Lumpur was taken over by the Japanese. It was under Japanese occupation from December, 1941 to May, 1945. There was no communication between Kuala Lumpur and India. After communications were restored, the first defendant was sending kurippu copies occasionally and also balance sheets to the plaintiff, from which the plaintiff says it was not possible for him to know about the real state of affairs. On account of the various reasons the first defendant was directed to hand over charge to one Kannuswamy who was the agent of the plaintiff's brother's firm at Kuala Lumpur. The first defendant handed over charge to him in or about January, 1947 and returned to India on 23rd August, 1947. The defendant, then according to the plaintiff, did not turn up or hand over the accounts to him. Then the first defendant is again stated to have set out for Kuala Lumpur on his own business on 8th May, 1948 and came back only in February, 1951. The plaintiff states that he made repeated demands from the first defendant to render accounts and finally sent a notice on 12th January, 1951, which was returned. Then he has filed the suit for the rendition of accounts from 7th January, 1940, to 23rd August, 1947.
3. The case for the first defendant was entirely different. His case is that prior to Japanese occupation he was duly sending to the plaintiff kurippu copies. The Japanese occupation lasted from the beginning of 1942 and continued till September 1945. The accounts for the period and also those relating to the subsequent period after the British reoccupation have been sent to the plaintiff from time to time. Then. after he returned to India on 23rd August, 1947, he went to the plaintiff's house and handed over to him records relating to the handing over of the charge to Kannuswami Pillai. According to the first defendant he has rendered a complete and true account of his agency from the time he took over charge upto the time he handed over charge to Kannuswami. In fact the first defendant wants to make out that in the bargain he lost all his arrears of salary because this was set off against the profits of the grocery business which according to the first defendant the plaintiff forewent.
4. The learned Subordinate Judge dismissed the suit on two grounds, viz., limitation and on the ground that he who seeks equity must do equity and that in as much as the first defendant has done his part of the bargain and plaintiff has deliberately suppressed the accounts, the latter cannot be given any equitable relief of rendition of accounts on the foot of agency.
5. The point of limitation which weighed with the lower Court was this. It was held in Venkatachallam Chetty v. Narayanan Chetty (1914) 28 M.L.J. 140 and Subramaniam Chettiar v. Maruthamuthu (1944) I M.L.J. 440 that when the cause of action arose out of India the benefit of Section 13 of the Indian Limitation Act cannot be availed of by a plaintiff. But in Muthu-kanni Mudaliar v. Andappa Pillai (1954) 2 M.L.J. 731 it has been held that a suit for personal relief against a defendant can be instituted in a Court within the local limits of whose jurisdiction the defendant is residing or carrying on business on the date of the institution of the suit, wherever the cause of action for the suit had arisen. To such a suit the provisions of the Statute of Limitation in force in the country of the forum, that is, the lex fori would apply ; and that Section 13 of the Indian Limitation Act would apply to cases where the suit is instituted in India even though the cause of action might have arisen outside India, that is, also for suits based on a cause of action which arose out of India. Rathina Thevan v. Pakkirisami Thevan (1929) 28 L.W. 645 and Subramaniam Chettiar v. Maruthamuthu (1944) I M.L.J. 440 relied upon by the lower Court were overruled. Therefore, the case cannot be dismissed on the ground of limitation as has been done by the learned Subordinate Judge ; and it was open to the plaintiff to exclude the period when the defendant was outside India in computing the period of limitation.
6. The second point relates to he allegations and the counter allegations which have been set out above. It will be noticed that the case of the plaintiff is that kurippu copies were sent to him irregularly and that they did not give him a true picture of what the defendant owed him in the shape of accounting for the agency. On the other hand, the case for the defendant was that he had been regular and comprehensive in the matter of sending accounts though as a matter of fact when he returned to India he gave this plaintiff all the account books, etc., and that nothing further can be had from him. The learned Subordinate Judge came to the conclusion that the plaintiff has not filed all the records in the shape of kurippus, etc., which have been handed over to him by the first defendant. In fact, the documents which have been filed in the Court are the correspondence, Exhibits A-2 and A-7, the Aynthugai Exhibits A-8 and A-9 and the correspondence Exhibits A-12 to A-17 and the kurippu copies Exhibits A-18 to A-22, and the correspondence Exhibit B-1 to B-4 and the lawyer notices that were exchanged were Exhibits A-10 and A-11.
7. On account of the fact that both parties filed a joint memo, on 4th February, 1954, to the effect that they were not letting in any oral evidence at that stage and that issues 1, 5 and 7 were not pressed by the defendants and that issues 2, 2-a 2-b 4, 6, and 9 may be considered by the Commissioner who may be appointed if a preliminary decree is passed in that suit, issues 3, 3-a and 8 alone have to be considered. At the stage of the preliminary enquiry the learned Subordinate Judge had not the benefit of any evidence except this documentary evidence mentioned by me above and on that material he had to assess whether all the account books, etc., sent by the first defendant have reached the plaintiff.
8. The learned Subordinate Judge on this material came to the conclusion that plaintiff has suppressed some of the accounts, etc., handed over to him by the first defendant and on that conclusion, he deduced that the suit was bound to fail on the following argument put forward by the first defendant. The defendant relied upon the decision in Upendra Kishore Chowdhury v. Ramtara Debya Choudhurani 13 CW.N. 696 where it was laid down that plaintiff who is in possession of the accounts and other papers cannot be allowed to sue the defendant for accounts unless and until he produces them into Court with a statement of what they contain and showing what the balance is. The decision is based on the principle that a person seeking equity must do equity. It has been further held in that case that when an account is to be taken between the parties, the first essential requisite to be satisfied is that the person who is in possession of the accounts should produce all of them into Court. In B.C. Chakravarthy v. Kiran Chandra Rai I.L.R.(1925) Cal. 766 the principle of the decision in U.K. Rai Chowdhury v. Ramtara Debya Choudhurani 13 CW.N. 696 had been followed. In Shiva Prasad v. Hanuman Bux : AIR1938Pat392 has been upheld.
9. On the foot of these decisions the learned Subordinate Judge came to the conclusion that the conduct of the parties as disclosed by the correspondence that passed between them unmistakably goes to show that the entire accounts and the documents must have been handed over by the first defendant to the plaintiff either at the time he actually gave over the charge or after he returned to India personally.
10. This is the finding which is assailed before me on two grounds, namely that as a matter of fact it was not correct and secondly even in assuming that the plaintiff was guilty of suppressing certain documents it would not entail the dismissal of the suit.
11. So far as the first point is concerned, I am in entire agreement with the learned advocate, Mr. Desikan, that at that stage there was nothing on record for the learned Subordinate Judge to be so emphatic and comprehensive. All that we can assume at this stage is that all the accounts which are said to have been handed over by the first defendant to the plaintiff are not forthcoming. In a case of that nature, it is not open to the Court to dismiss the suit, because as has been pointed out in Shankar Lal v. Tosgan Pal : AIR1934All553 where the liability of the defendant's agent to render accounts arose on the facts admitted in the pleadings, a preliminary decree should be passed directing that an account be taken from the defendants. In rendering accounts it is open to the defendants to establish their allegation that certain material account-books or papers are in possession of the plaintiff who has deliberately withheld them. If their allegation is proved the Court will doubtless draw proper inference from the conduct of the plaintiff. The fact that the plaintiff was in possession of certain documents and was withholding them cannot absolve them of their liability to render accounts for the business. The decision in Ram Dass v. Bagwat Doss (1904) 1 All. L.J. 347 was relied upon. In that case it was held that law does not impose a duty upon a plaintiff who calls on his agents to account first to satisfy that there is or ought to have been some surplus in the hands of his agents. It is a duty for the Court to fix a date for furnishing of the accounts and it is for the defendant to prove the amount of his receipts.
12. Turning to the second point, B. C. Chakravarthy v. Kiran Chandra Rai I.L.R.(1925)Cal. 766 has been explained in a judgment of this Court. It is held in an unreported judgment in A.S. No. 299 of 1932 by Varadachariar and Burn, JJ., as follows:
Lastly the respondents' learned Counsel contended that the plaintiff, who is now in possession of the account-books and who has from time to time received fortnightly kurippu copies as usual among Chettiars and has thus had abundant information about the transaction carried on by the defendant has not even in the plaint alleged what it is that he complains of in the transactions of the defendant, and even his evidence as to demands that he made for an explanation from the defendant is very vague and unreliable. He points to the fact that the suit was filed just at the end of the third year after the defendant left the plaintiff's service and contends in such circumstances the Court ought to hold that the plaintiff had no cause of action at all. In support of this contention he relies upon certain observations in Bharat Chandra Chakravarty v. Kiran Chandra Rai I.L.R.(1925) Gal. 766 repeated in Nalini Kumar Chakaravarty v. Gadahar Choudhury (1931) 49 C.L.J. 245. These cases no doubt lay down that the machinery of the Court ought not to be employed merely for the purpose of examining accounts without some basis laid for the suit for an account, but they were not cases in which the defendant denied the existence of an accountable relationship. On the other hand, the cases in B.C. Chakravarty v. Kiran Chandra Rai I.L.R.(1925)Gal. 766 recognises that the question of the existence of liability to account is for the Court to decide and as the defendant has in this case denied the existence of such liability, it is difficult to hold that the plaintiff had no cause of action for his suit. It is not the practice in this presidency when a principal is suing his agent for accounts to state in the plaint itself, objections to various items in the account. When the preliminary decree for accounts is passed, the plaintiff will in the ordinary course be called upon to file his statement of charges and the defendant will have an opportunity of meeting them. It is no objection to the maintainability of the suit therefore that the plaint does not itself contain a detailed statement of the charges.
13. The net result of this analysis is that the fact that plaintiff has probably suppressed certain records, kurippus, etc., handed over to him by the first defendant is not a ground for dismissing the suit but only to have the matter investigated in the enquiry in the final decree stage. The Commissioner will at that stage naturally go into the question before fixing any liability upon this first defendant as to what were the accounts, etc., that were supplied by him to the plaintiff and the liability if any that has been proved as against the first defendant. If accounts are proved to have been handed over by the first defendant to the plaintiff and the latter is deliberately withholding them, then his case would be at an end, that is his demand for rendition of accounts will be at an end and the Commissioner will have to send a blank report that he cannot assess the liability of the first defendant vis-a-vis the plaintiff.
14. This is not the stage for canvassing the adequacy and reliability of the information that might be supplied to the Commissioner for assessing the accounts.
15. The decree and judgment of the lower Court are set aside, and a preliminary decree directing the first defendant to render a true and proper account for his agency of the plaintiff firm from 7th January, 1940, till 23rd August, 1947, is passed, and the taking of accounts is relegated to the final decree stage. Costs to abide the result. Both parties will be at liberty to place all materials before the lower Court and Commissioner in regard to what is alleged to have been handed over and what is alleged to be withheld.