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Allahbad High Court
R.B.MISRA,J.M.L.SINHA
Chaubey Sushil Chandra - Appellant
Versus
Raj Bahadur - Respondent
Decided On : 09/20/1976
AGENT - SUIT FOR ACCOUNTING - MAINTAINABILITY - SPECIAL CIRCUMSTANCES - AMENDMENT OF PLAINT - LIMITATION - MUTUAL, OPEN AND CURRENT ACCOUNT - RECIPROCITY OF DEALINGS - TEST.
Fact of the Case:
The plaintiff, Raj Bahadur, filed a suit for rendition of account of firm Hanuman Glass Works at Firozabad Sections A and B and to pass a decree against the defendant for such amount trial may be found due to the plaintiff in respect of the share of profits of Lal Pyare Lal and Lala Ram Swarup. The defendant, Chaubey Sushil Chand, filed a suit claiming a decree for Rs. 17,316/5/-with pendente lite and future interest against the assets of late Lala Pyare Lal in the hands of Raj Bahadur.
Finding of the Court:
The court held that the suit filed by Raj Bahadur was not maintainable as there were no special circumstances to justify such a suit. The court also held that the amendment sought by Raj Bahadur to change the relief originally claimed for rendition of accounts and a decree for the amount found due on such rendition of accounts into a new relief for a decree for a specific amount was not permissible as it would change the nature of the suit and the cause of action. The court further held that the suit filed by Chaubey Sushil Chand was barred by limitation as the account between the parties was not mutual, open and current.
Issues: 1. Whether the suit filed by Raj Bahadur for rendition of account was maintainable? 2. Whether the amendment sought by Raj Bahadur to change the relief originally claimed was permissible? 3. Whether the suit filed by Chaubey Sushil Chand was barred by limitation?
Ratio Decidendi: 1. A suit for accounting by an agent against the principal is not ordinarily maintainable. However, in exceptional circumstances, such a suit may be maintainable if the agent is not able to claim a specific sum without the principals amounts being gone into. 2. An amendment of the plaint to change the nature of the suit or the cause of action is not permissible after the bar of limitation has become available to the defendant. 3. An account is mutual, open and current when there are reciprocal demands between the parties and the balance is sometimes in favour of one party and sometimes in favour of the other.
Final Decision: Both the appeals were dismissed with costs.
R. B. MISRA, J. :- These are two appeals against the common judgment of the First Additional Civil Judge, Agra dated 24th September 1956 in two cross suits between the parties, Suit No. 91 of 1952 giving rise to First Appeal No. 29 of 1957 was filed by Raj Bahadur against Chaubey Sushil Chand. Keshri Mal and Prem Chand, while suit No. 75 of 1952 giving rise to First Appeal No. 33 of 1957 was filed by Chaubey Sushil Chand against Raj Bahadur. The material facts leading upto these appeals are as follows:
2. There is a glass factory known as Hanuman Glass Works at Station Road, Firozabad, Chaubey Sushil Chand was the sole owner till 1929 or 1930. In or about the year 1930-31 late Lal Pyare Lal uncle of Raj Bahadur appeared on the scene. He was taken in either as partner or on commission and his share was fixed at 3/6 in a rupee. In or about the year 1935 Lal Pyare Lal started another business for the purchase and sale of sand etc. used in the manufacture of glass in the name and style of Lal Pyare Lal Agarwal.
According to Raj Bahadur, this new business was in partnership with Chaubey Sushil Chand wherein the share of Chaubey Sushil Chand was fixed at As. -/10/and that of Lala Pyare Lal at As. -/6/- in a rupee. According to Chaubey Sushil Chand, it was, however, a private concern of Lal Pyare Lal. In or about the same year Lal Ram Swarup, father of Raj Bahadur, also joined the firm Hanuman Glass Works as a servant on a salary of Rs. 35/-per mensem. Later on, he was also taken either as partner or on commission and the shares of these persons were readjusted in such a way that Chaubey Sushil Chand was to have As. -/9/6. Lala Pyare Lal -/3/6 and Lal Ram Swarup -/3/-. On 9th August, 1943, the firm Pyare Lal Agarwal entered into a financial agreement on commission basis with M/s Himalaya Glass Works at Firozabad for financing and supplying raw materials to and for the sale of the finished products of the latter firm. The said arrangement, however lasted only for a year when huge amount had fallen due to the firm Pyare Lal Agarwal. A suit was filed by Lal Pyare Lal for the recovery of the dues against M/s Himalaya Glass Works. Pyare Lal in the meantime died and late Lal Ram Swarup as his legal representative entered into a compromise and under the compromise only a decree of Rs. 8000/- was passed. Firm Pyare Lal Agarwal stopped its business and was dissolved some time in 1944 on the failure of Himalaya Glass Works though its final accounts could not be settled and wound up on account of the pendency of the suit against M/s Himalaya Glass Works.
3. It appears that about the same time the business of Hanuman Glass Works was divided into two sections, known as Sections A and B. Section A was to deal in chemical etc. while section B was to deal in the manufacture and sale of Block Glass only. In Section A, the shares of Chaubey Sushil Chand, Lala Pyare Lal and Lala Ram Swarup continued to be the same as stated earlier but in Section B, (also known as Kanch Bhatti) two more partners, that is, Shri Keshari Mal and Shri Prem Chand were taken as new partners and their shares were readjusted. The firm Hanuman Glass Works Sections A and B was not dissolved on the death of Lala Pyare Lal and under an oral agreement between the surviving partners they continued as before. The share of Lal Pyare Lal, however, devolved on Lal Ram Swarup Lal Ram Swarup also died on 23rd September, 1951. On his death the firm stood legally absolved.
4. It further appears that in the account books of Firm Hanuman Glass Works Section A Lal Pyare Lal opened two Khatas - one in the name of Lala Pyare Lal and the other in the name of Lala Pyare Lal Agarwal, Khata in the name of Lala Pyare Lal Agarwal represented the commission advances made in cash or kind to Himaliya Glass Works through firm Pyare Lal. Later on the two Khatas were amalgamated.
4-a. Chaubey Sushil Chand in his suit no. 75 of 1952 against Raj Bahadur claimed a decree for Rs. 17,316/5/-with pendente li
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