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2003 Supreme(Ker) 561

Judges : S.SANKARASUBBAN,K.K.DENESAN
Brothers Chitty Fund - Appellant
Versus
Jacob Mathew - Respondent
Case No : CMA.No. 3 of 1994
Decided On : 09/25/2003
Advocates Appeared :
For the Appellants: V. Giri, Advocate. For the Respondent : P.G. Parameswara Panicker, B. Radhakrishnan, Advocate.

Headnote:

Civil Procedure .Code . 1908, Order .XX, Rule .16 and Order .VII, Rule .2 – 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 suit was filed for settlement of accounts –Held, 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 for accounts to be taken by or under the supervision of the Court – "A suit for rendition of accounts is a special and unusual form of 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 amount is due to one or the other that a suit for accounts will lie – Appeal is disposed.

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. 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

















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