An agent is not entitled to sue his principal for accounts except in exceptional circumstances.

GOPAL KRISHNAN NAIR, J.

( 1 ) THIS Second Appeal is directed against the Judgment of the Subordinate Judge at Kurnool, who dismissed the defendants appeal and confirmed the decree for plaintiffs passed by the District Munsif, Adoni.

( 2 ) THE plaintiffs-respondents instituted a suit for an account against the defendant in the Court of the District Munsif, Adoni, on the basis of a contract of agency arising out of a power-of-attorney (Exhibit B-3) dated 29-12-1951 executed by the plaintiffs in favour of the defendant for the management of their estate. The defence was that the defendant had earlier been appointed agent by the deceased mother of the plaintiffs under Exhibit B-5 dated 28-11-1940 for management of the said properties and that he had overpaid the plaintiffs mother and was entitled to an account and reimbursement from the plaintiffs who admittedly inherited the properties from mother. The defendant, therefore, asked that an account be taken for the period beginning from 28-11-1940 and ending with the death of the plaintiffs mother in June 1951 and the amount due to him ascertained and awarded to him. This claim was made by the defendant in the shape of a counter claim in respect of which he paid a court-fee of Rs. 11. 00 as though it were a plaint in a suit for rendition of accounts.

( 3 ) THE main question that arose for decision in the Courts below was whether the counter claim raised by the defendant was sustainable. The trial Court held that the counter claim related to a different contract of agency and could not therefore be set up in answer to the plaintiffs action which was based on a separate later contract. Consequently it passed a preliminary decree for accounts in respect of the period covered by Exhibit B-3. The defendant was not satisfied with this preliminary decree. He wanted an account relating to the agency created by the plaintiffs deceased mother to be taken. He, therefore, appealed to the Subordinate Judge, Kurnool. The learned Subordinate Judge dismissed the appeal on the grounds that the defendants counter-claim which related to a different contract was not maintainable and that it was barred by time.

( 4 ) IN this Second Appeal, the defendant has again pressed his counter claim. Mr. Bhujangarao for the defendant has urged that in respect of his counter claim the defendant was in effect and substance a plaintiff and that as a suit for accounts by him would be maintainable his counter claim ought to have been decreed.

( 5 ) IT is true that a counter claim can well be regarded as substantially a cross action. It is not the same as a legal set off under O. VIII R. 6 of the Code of Civil Procedure or an equitable set-off for that matter. Every set-off can be pleaded as counter claim cannot be pleaded so desires; but every counter claim cannot be pleaded as a set-off. It is however beyond doubt that a counter-claim can be maintained only where the defendant is entitled to bring an independent action for the same relief in the same Court in which the counter-claim is laid. Therefore, if the defendant in the instant case is not entitled as an agent to bring an independent suit for an account against the plaintiffs as his principles, the counter-claim preferred by him has to fail. This is the crucial aspect of the problem which however was not gone into by the courts below.

( 6 ) THERE is no provision in the Contract Act or any other enactment conferring a right on an agent to sue his principle for accounts. The general rule is that an agent is not entitled to bring a suit for accounts against his principle except in exceptional circumstances. Such exceptional Circumstances would exist where the agent is unable to know the amount due to him without examining the accounts which are in the possession of his principal and which he is not able to get at, or where his remuneration depends upon the extent of the dealings entered into between his principal and third parties which he is not aware. In other cas

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