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J.C. Das Vs. the Cachar Native Joint Stock Company, Ltd. and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in87Ind.Cas.764
AppellantJ.C. Das
RespondentThe Cachar Native Joint Stock Company, Ltd. and ors.
Excerpt:
civil procedure code (act v of 1908), order xxvi, rule 11 - accounts, suit for--order for taking accounts, whether can be made before determination of defendant's liability. - .....judge directing certain accounts to be taken by a commissioner appointed in the suit. the suit was commenced so long ago, i think, as the year 1920 by the company against certain of its officers including the auditor seeking to make them liable for certain loss which had been incurred by the company which, it is alleged is owing to the defalcation of some of the officers of the company.2. the claim against the auditor at whose instance this rule was obtained was for a specific sum of some rs. 69,000 and before all this was established a reference was made by the subordinate judge to a commissioner directing certain accounts to be taken preliminary to the hearing of the suit. the order in the form in which it; had been made by the district judge was ' admittedly too wide and an.....
Judgment:

1. This is a Rule obtained at the instance of one of the defendants in the suit with regard to an order that was made by the Subordinate Judge directing certain accounts to be taken by a Commissioner appointed in the suit. The suit was commenced so long ago, I think, as the year 1920 by the Company against certain of its officers including the auditor seeking to make them liable for certain loss which had been incurred by the Company which, it is alleged is owing to the defalcation of some of the officers of the Company.

2. The claim against the auditor at whose instance this Rule was obtained was for a specific sum of some Rs. 69,000 and before all this was established a reference was made by the Subordinate Judge to a Commissioner directing certain accounts to be taken preliminary to the hearing of the suit. The order in the form in which it; had been made by the District Judge was ' admittedly too wide and an application with regard thereto was made before Mr. Justice Chakravarti and myself sometime in November last. The actual question now arises before us was not sofa as I recollect raised at that time, the application being confined to the form and extent of the order which had been made. It has now been brought to our notice that the order made by the Subordinate Judge involves the taking of certain accounts before any liability has been established against the present petitioner. We think that this, on the face of it, is not warranted by the nature of the suit notwithstanding the provisions of Order XXVI, Rule 11 to which we have been referred. We think the proper course for the Subordinate Judge is to try the suit in order to determine whether the petitioner is liable at all to the Company for the defalcation which has been alleged and we accordingly make the Rule absolute and we direct that the proceedings before the Commissioner shall be stayed and that the suit shall proceed in order that the liability of the various defendants to the Company may be determined if such liability in fact exists.

3. It is extremely unfortunate that this suit which was commenced so long, I think, as the year 1920 has not been brought to. trial and in making the Rule absolute we direct that the Subordinate Judge shall take this case up within one month from date and the matter will be brought' to our notice if the case is not commenced within that time with liberty to apply.

4. Costs-hearing-fee, five gold mohurs will be costs in the cause.


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