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2006 DIGILAW 2742 (MAD)

B. Kotti v. G. Subbiah

2006-10-16

A.C.ARUMUGAPERUMAL ADITYAN

body2006
Judgment :- (Prayer: This Appeal has been filed against the decree and judgment passed in O.S.No.46/1985 on the file of the Subordinate Judge At Poonamallee, dated 11.6.1991.) This appeal has been preferred against the decree and judgment passed in O.S.No.46/1985 (pauper O.P.41/84) on the file of the Sub-court, Poonamallee. 2. The facts in brief in the plaint are as follows: The suit was filed by the plaintiff in informal pauperize to realize Rs.75,000/- with interest. The plaintiff has appointed the Defendant as power agent through the power deed dated 28.9.1981. As per the said power deed, the Defendant has to lookafter the business conducted by the plaintiff and to maintain the accounts for the same. The Defendant is bound to handover the entire profits of the business to the plaintiff. But the Defendant has failed to perform his duty properly and began to set up another Arrack Shop, just one mile away from the plaintiff's arrack shop. If the Defendant would have conducted business in a proper manner, the plaintiff would have received Rs.1,40,000/- towards net profit. Plaintiff issued notice dated 1.4.1982 to the Defendant for rendition of accounts. The Defendant in his reply notice dated 23.4.1982 had demanded to repay the loan amount of Rs.30,000/- from the plaintiff. For the said notice the plaintiff has issued notice of rejoinder dated 23.07.1982. Even though the net profit would be much more, the plaintiff restricts the same to Rs.75,000/-. Hence, the suit. 3. The Defendant in his written statement would contend as follows: It is not correct to say as per general power dated 28.9.1981 the plaintiff had handed over the business to the Defendant. The Defendant never conducted any business on behalf of the plaintiff. Hence, the Defendant is not bound to furnish the plaintiff any balance sheet (Profit and loss statement). There is no cause of action to the plaintiff. Hence the suit is liable to be dismissed. 4. On the above pleadings the learned trial Judge has framed five issues and on the basis of the documentary and oral evidence has come to a conclusion that the plaintiff is not entitled to any relief under the suit and consequently dismissed the suit with costs. 5. Aggrieved by the findings of the learned trial Judge the plaintiff has filed this appeal. 6. 5. Aggrieved by the findings of the learned trial Judge the plaintiff has filed this appeal. 6. Now the point for determination in this appeal is whether the decree and Judgment passed in O.S.No.46/1985 on the file of the Sub-Court, Poonamallee, is liable to be set aside for the reasons stated in the memorandum of appeal? 7. The Point:- 7(a) The learned counsel for the appellant would contend that only on the basis of the memo of valuation and calculation given under the plaint, the plaintiff has estimated income of the business said to have been run by the Defendant on behalf of the plaintiff as per the deed of general power executed under Ex.A.1 by the plaintiff in favour of the Defendant dated 28.9.1981. So admittedly there is no document produced to show the income derived by the Defendant out of the business transferred by the plaintiff to the Defendant under Ex.A.1. What was transferred under Ex.A.1 was an Arrack shop bearing No.30/81, 82 under licence No.45/1981, 1982 issued by the Tamil Nadu Government during the auction of the arrack shops. Ex.A.1 is the registration copy of the power deed. According to the Defendant, who was examined as D.W.1 before the trial Court, he had advanced a loan of Rs.30,000/- to the plaintiff to meet the debt incurred by the plaintiff in the arrack business and that he never demanded the plaintiff to execute Ex.A.1-power of attorney. In his evidence D.W.1 would deny the very execution of Ex.A.1-power deed itself. But in his reply notice, Ex.A.4 dated 23.4.1982, the Defendant has stated that, when the Defendant demanded the plaintiff to repay the earlier hand loan of Rs.30,000/-, the plaintiff came with a proposal to execute the general power of attorney and registered the same in favour of the Defendant and also prepared a power of attorney and obtained the defendant's signature, but the Registrar has refused to register the same for want of proper stamp. But it is seen from Ex.A1 that the said document was registered and Ex.A.1 is only a registration copy of the power deed. 7(b) The learned counsel for the appellant/plaintiff would fairly concede that to show the estimated income from the business for the period between 1.7.1981 to 1.6.1982 there is no document produced by them and only document available on record is the ipsi-dixt of P.W.1/plaintiff. 7(b) The learned counsel for the appellant/plaintiff would fairly concede that to show the estimated income from the business for the period between 1.7.1981 to 1.6.1982 there is no document produced by them and only document available on record is the ipsi-dixt of P.W.1/plaintiff. There is no documentary evidence to corroborate P.W.1's evidence regarding the estimated net profit from the business conducted by the Defendant on behalf of the plaintiff under Ex.A.1. Even though the plaintiff would claim that from 1.7.1981 to 1.6.1982 the Defendant would have received an estimated income of Rs.1,40,000/- the plaintiff has restricted his claim to Rs.75,000/-. The learned counsel for the appellant would contend that on the basis of Ex.A.1 he would have filed a suit against the Defendant for rendition of accounts, instead the plaintiff has filed the suit for Rs.75,000/- on the basis of Ex.A.1. The evidence of D.W.2 is also note worthy. D.W.2 is an employee under Exercise Department. He would depose that under deed of power, said to have been executed by the licencee in favour of another person even under unavoidable circumstance, the Exercise Department will not handover the liquor bottles to the power holder. But in the cross-examination he had deposed to the fact that he cannot say as to who had received the chellan from their office on 1.7.1981 without referring to the records and he is not aware as to whether Subbiah had received the chellan son 20.06.1981 after paying the amounts. He has further deposed that without referring to the relevant register he cannot say who had received the chellan after dispersing the amount on 20.2.1982, 27.2.1982, 2.3.1982, 14.3.1982 and 16.3.1982. So it is clear from the evidence of D.W.2 that Arrack shop was continuously being run by even after Ex.A.1 date. It is not the case of the Defendant that arrack shop, after the execution of Ex.A.1, was not run either by the plaintiff or by the Defendant. Any how as rightly decided by the learned trial Judge the plaintiff cannot get a decree under this suit because he has failed to furnish the exact estimate of income for the period from 1.7.1981 to 1.6.1982 from the suit arrack shop. Proper remedy open to the plaintiff is to file a suit for rendition of accounts against the Defendant. Point is answered accordingly. 8. Proper remedy open to the plaintiff is to file a suit for rendition of accounts against the Defendant. Point is answered accordingly. 8. In fine, the appeal is dismissed confirming the decree and Judgment passed in O.S.No.46/1985 on the file of the Subordinate Court, Poonamallee. The learned counsel for the appellant would contend that the plaintiff may be given an opportunity to file a suit for rendition of accounts against the Defendant. The request of the learned counsel for the appellant is acceded and the plaintiff is permitted to file a suit for rendition of accounts on the basis of Ex.A.1 within three years from this date, if so advised. No costs. Appellant is liable to pay the court fee due to the Government.