The main legal point established in the judgment is that the suit for recovery of money was maintainable, and the court relied on the auditors' report to decree the suit.

B. RAJENDRAN, J

1. The defendant in C.S. No.196 of 1993 is the appellant in this appeal. This appeal is filed as against the decree and judgment dated 05.07.2007 made in C.S. No. 1096 of 1993 passed by the learned single Judge, decreeing the suit filed by the plaintiff/respondent herein for a sum of Rs.1,69,51,588/- with interest at 18% per annum from the date of filing the suit till decree and at 12% per annum from the date of decree till the date of realisation with proportionate cost. By the said decree and judgment, the learned single Judge dismissed the counter claim made by the defendant/appellant herein.

2. Originally, the plaintiff has filed the suit for recovery of a sum of Rs.2,13,00,398.94 with interest thereon at 18% per annum from the date of filing the suit till the date of realisation; for recovery of Rs.11,20,703/- being the value of the stock lying with the defendant and for costs. Subsequently, the plaint was amended to include a sum of Rs. 31,88,698/- being the tax liability payable by the defendant and the suit claim was accordingly enhanced.

3. According to the plaintiff/respondent herein, the defendant/ appellant was originally appointed as a sole agent in the year 1963 and subsequently, in the year 1974, the defendant was appointed as a consignment sales agent. In between 1974 to 1992, the defendant was having transaction with the plaintiff, for which the defendant sent statement of account to the plaintiff including debit and credit notes. In between 1988 to 1992, there was disagreement between the plaintiff and the defendant as the defendant defaulted in remitting the amount. There were exchange of correspondence between the plaintiff and the defendant for reconciliation of accounts and disputing the receipt of payment of amount, as the case may be. In fact, by a letter dated 14.08.1992, the plaintiff claimed a sum of Rs.2,33,67,000/- as due, whereas, the defendant, by the letter dated 26.08.1992 has admitted outstanding difference upto 25.07.1992 at Rs.1,96,57,000/-. Thereafter, between 1992 to 1993, there were various correspondences exchanged between the parties regarding the reconciliation of account. Since the amount was not paid by the defendant, as claimed, the plaintiff filed the suit on 03.08.1993 claiming the amount, of course basing also on the admission of the defendant vide letters dated 18.06.1986, 01.08.1998 and 26.06.1992. Along with the suit, various applications were filed for interim injunction, attachment of immovable property before judgment etc., In fact, application No. 5665 of 1995 was filed for appointment of an independent auditor to inspect and reconcile the accounts from 1963 to 1992. This Court, by an order dated 02.04.1998, allowed Application No. 5665 of 1995 and M/s. Sarathy and Vasu, were appointed as auditors to reconcile the account.

The auditors were also directed to make independent inspection and reconcile the accounts from 1963 to 1992. The auditor appointed by this Court also filed interim as well as final report. Based on the auditor report, the suit was decreed and the defendant was directed to pay a sum of Rs.1,59,51,588/- with interest at the rate of 18% per annum and 12% from the date of decree.

4. The case of the defendant/appellant is that the defendant is acting as consignment agent from 1974 and there is no written agreement. The suit ought to have been filed for rendition of account and not for recovery of amount, therefore, the suit is not maintainable. Unless the books of accounts of both the plaintiff and the defendant are disclosed to each other, the liability to pay the amount cannot be ascertained. The defendant submitted weekly sales and stock statements to the plaintiff. The defendant, as agent, is entitled to deduct distribution charges, handling charges and reimbursement of 50% of the magazine licence fee at the time of making weekly remittances against the dues. The defendant raises debit notes as against other expenses. At the t