Judgement

SIKRI, C.J.I.:- This appeal by special leave arises out of a suit filed by the respondent, Data Ram Jagannath, hereinafter referred to as the plaintiff, against the appellant, Mohinder Singh Jaggi, hereinafter referred to as the defendant, for realisation of Rupees 9385.09 towards principal and Rupees 1338.54 towards interest at 12% per annum, on Khata account. Before the Trial Court the defendant raised a counter claim in his additional written statement claiming accounts from the plaintiff in respect of the goods which came into their possession in pursuance of an agreement.

2. The Trial Court decreed the plaintiff s suit against the defendant but also accepted the cross-claim of the defendant for accounts and passed a preliminary decree for accounts to be rendered by the plaintiff for the goods lying in his custody. The Trial Court observed that the details of the decree would be worked out in the final decree.

3. The plaintiff appealed against the preliminary decree for accounts passed in favour of the defendant. The High Court allowed the appeal and set aside that part of the judgment and decree of the Trial Court which directed the plaintiff to render accounts, and dismissed the cross-claim made by the defendant in his additional written statement. The defendant having obtained special leave, the appeal is now before us for disposal.

4. The suit was filed by two plaintiffs; Dataram Jagannath, a registered partnership firm, and Dataram Jagannath, H. U. F., but they will be referred to compendiously as, the plaintiff. The plaint was filed on July 3, 1961, alleging that the plaintiff agreed to supply funds to the defendant as and when necessary to carry on his business. The plaintiff from time to time advanced loans fo the defendant either in cash or by cheque or by retiring hundis form the Bank or by supplying goods to him on credit. After giving up certain amount stated to have become time-barred and also giving up some interest the balance was claimed.

5. In the written statement dated April 16, 1962, the defendant pleaded in para 5 "that without going to the account of both the parties and without settlement of account the plaintiffs cannot sue for any definite amount, hence, the plaintiffs without bringing a suit for account and without settlement of account cannot bring this suit in the present form for a definite sum of money." The defendant further denied that there was any agreement for advancing loans as such, as alleged by the plaintiff. It was further alleged in Para 18 that "the true facts of the case are that the defendant who carries on business of Motor Accessories is to place orders to outside stations and receives them through Railway and through Banks. that at times of necessities in order to release the said goods from Banks the defendant on various occasions approached Sri Baij Nath who released the R/R of the defendant on payment and against the said payment the plaintiff used to retain the goods. Subsequently the defendant either released the goods or any part thereof on payment within a time required by the plaintiff No. or the plaintiff No. sold the goods so retained by him and realised his dues." (sic) It was further allege that the defendant was not liable to pay the sum of Rupees 26,654,44; rather the plaintiff was liable to pay the said amount with interest to the defendant. It was also alleged that certain payments had not been accounted for.

6. It appears from the judgment of the Trial Court that the defendant asserted about the presence of a written agreement, vide his adjournment petition dated October 27, 1961, and the plaintiff denied about the presence of such a written agreement vide his objection dated November 4, 1961. When the plaintiff prayed for the amendment of the plaint on April 1. 1963 so as to include the statement of accounts as per of the plaint, the defendant filed the additional written statement. In this statement it was alleged in para 1 that "there was an agreement o