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2003 DIGILAW 613 (KER)

Brothers Chitty Fund v. Jacob Mathew

2003-09-25

K.K.DENESAN, S.SANKARASUBBAN

body2003
Judgment :- Sankarasubban, J. This appeal is filed against the judgment in A.S.No.80 of 1992 of the District Court, Pathanamthitta. O.S.No. 29 of 1991 is a suit against which A.S.No.80 of 1992 was filed. The suit was filed for settlement of accounts. 2. There are three plaintiffs in the suit. Defendants are two chitty funds. According to the plaintiffs, they had money transactions with defendants 1 and 2. Foreman of the first defendant by name George had given to amounts and got executed documents including mortgage, pronote, etc. The main plank of attack in the plaint is that the documents were executed not voluntarily but also on coercion and undue influence exerted by foreman. It is also stated that some of the debts were discharged. Further, it is stated that the defendants have filed suits against the plaintiffs. But according to the plaintiffs, since many of the documents are forged, amounts are not due under those documents by the plaintiffs. Therefore they pray that accounts be taken as to actual amount due from the plaintiff to the defendants. 3. The defendants filed written statement under which they had denied the allegations made by the plaintiffs. They also raised the contention that the suit for accounts is not maintainable. The trial court, on an appreciation of the facts, held that the suit is not maintainable and dismissed the suit. On appeal, Learned District Court took the view that the suit for accounts is maintainable and remitted the suit back to the trial court. It is in the above circumstances that the present C.M.A. has been filed. 4. We heard learned counsel for the appellants and learned counsel for the respondents. 5. Learned counsel for the appellants submitted that since there is no reciprocal transaction between the parties, no question of accounting arises in this case. Learned counsel submitted that the transactions between the plaintiffs and the defendants actually are money transactions and it is not a case where the defendants are not aware of the amounts due under the documents. Suits have been filed against the plaintiffs by the defendants for realization of the amount. It is to prolong the litigation that the present suit has been filed. 6. On the other hand, learned counsel for the respondents submitted that it cannot be said that the suit for accounts will not lie. Suits have been filed against the plaintiffs by the defendants for realization of the amount. It is to prolong the litigation that the present suit has been filed. 6. On the other hand, learned counsel for the respondents submitted that it cannot be said that the suit for accounts will not lie. Learned counsel submitted that there were many transactions between the plaintiffs and the defendants. Hence, it has become necessary for the accounts to be taken. 7. Many decisions were cited before us by both sides. Reference was made to Order 7 Rule 2 and Order 20 Rule 16 of the Code of Civil Procedure. A Suit for account 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 enquiry, 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 redil potest - which means, that is certain which may be rendered certain - see Anant Ram Munshi Ram - Messrs Spedding Dinqa Singh and Company and others - A.I.R. 1960 Punjab 415. The ruling further states as follows: 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. 7. In Ram Dev Jai Dev v. Seth Kavu - A.I.R. (37) 1950 East Punjab 92, a Full Bench of the High Court held as follows: "A suit for account is not necessarily confined between a principal and agent. 7. In Ram Dev Jai Dev v. Seth Kavu - A.I.R. (37) 1950 East Punjab 92, a Full Bench of the High Court held as follows: "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 nor accounts to be taken by or under the supervision of the Court". In State of Jammu and Kashmir v. L.Tota Ram - A.I.R. 1971 Jammu and Kashmir 71, it was observed as follows: "A suit for rendition of accounts is a special and unusual form or remedy which can be resorted to only in some well recognised circumstances. It is not enough in such a suit that the plaintiff does not know the exact amount that he can claim from the defendant. Nor is it any reason as to what amount is due to one or the other that a suit for accounts will lie". In that case, the suit for rendition of accounts was filed relating to construction work of certain motor road. The court held as follows: "The suit was not maintainable. The plaintiffs attempt in converting a suit for definite sum which he could claim against the defendants into a suit for accounts was a device unknown to the law and could not be either upheld or encouraged. He was working the contract and he knew what work he had done." In C.S. Nair v. Travancore Devaswom Board - 1987 K.L.J. 838, a Division Bench of this Court held as follows: "Plaintiff is in the know of the amounts spent by him and the amount of damages to which he is entitled. When a crystallized amount is due, it is not open to him to lay the suit as one for accounts in as much as there is no account to be settled between the parties, but only an ascertainment of the quantum of damages. The plaintiff who knows the amount of work that he has done, the amount he has spent, and the amount of damages, if any he has incurred, can only file suit for damages for a specified ascertained sum. He cannot masquerade the suit as one for settlement of accounts, for the reason that there is no account to be settled between the parties". He cannot masquerade the suit as one for settlement of accounts, for the reason that there is no account to be settled between the parties". Decisions of Jammu and Kashmir High Court were followed. 9. Learned counsel for the respondents relied on the decision in The Kerala State Electricity Board v. Marshall Sons & Co. (India) Ltd, Madras-1985 K.L.J. 930, wherein it was observed as follows: "The finding that the suit as framed is maintainable is perfectly justified, viewed from another angle too. At one time it was thought that a suit on accounts could be entertained only when certain specified jural relationships existed. The view is no longer tenable. During the passage of time, the old notion had to yield to consideration in which equity was assigned a dominant role. The development of law in this regard is perceptible by a close reading of the early English decisions and reference to the views expressed by eminent jurists. It is unnecessary in this case for this Court to assess the development of law on this aspect; for that had been clearly and exhaustively dealt with by the Supreme Court in Narandas v. Papammal, AIR 1967 SC 333. The question involved in that case as whether an agent could sue the principal for accounts. The Supreme Court noted the statutory right of the principal to sue the agent under Section 213 of the Indian contract Act. It was observed that the statute was not exhaustive and that the right of the agent to sue the principal is an equitable right arising under special circumstances". In Roshanlal v. R.B. Mohan Singh Oberai - A.I.R. 1975 S.C. 824, the Supreme Court observed as follows: "That equity jurisprudence is flexible and meets the challenge of new situations without the law". The Supreme Court adopted the observation contained in the current legal problems, 1952 Vol.5 at page 1 reading: "New days may bring the people into new ways of life and give them new out looks; and with new rules of law". The Supreme Court further clarified that: "Enquiry is not penalty but justice and even where neither party is at fault, equitable considerations may shape the remedy". Thus, the argument of the learned counsel for the respondents was that the court of equity can take into account the special circumstances and entertain the suit for accounts. The Supreme Court further clarified that: "Enquiry is not penalty but justice and even where neither party is at fault, equitable considerations may shape the remedy". Thus, the argument of the learned counsel for the respondents was that the court of equity can take into account the special circumstances and entertain the suit for accounts. But according to us, on a close scrutiny of the plaint, the suit cannot be held to be maintainable. It is not a case of any reciprocal arrangement between the plaintiffs and the defendants. It is admittedly a case where the plaintiffs have borrowed amount from the defendants on various occasions and various documents were executed for this purpose. The plaintiffs were aware of those documents and also aware of the amount paid under various documents. What is alleged is that some of the documents were executed under vitiating circumstances, in which case the amount cannot be realized under those documents. It is their further case that some cheques were issued for payment of the amount and this has not been taken into account for the purpose of discharging the debt. We feel that this is not a circumstance necessitating a suit for accounts. It cannot be said that the amount cannot be ascertained. The plaintiffs cannot take advantage merely because there are a number of transactions. Hence, we are of the view that the suit for account is not maintainable. In the above view of the matter, the judgment under appeal is set aside, we hold that the suit, O.S.No.29 of 1991 is not maintainable. Appeal is disposed of as above.