Full Text
HIGH COURT OF DELHI
Date of Decision: 3rd January, 2018
MOHAN MEWAWALA ..... Appellant
Through: None
Through: Mr. Baswat Pattnaik, Advocate (DR1364/10, Mob.9873057127).
JUDGMENT
1. The present suit is for rendition of accounts. The Appellant - Plaintiff (hereinafter, `Plaintiff') in the suit, sought rendition of accounts on the ground that he was a commission agent for the Respondent-Defendant (hereinafter, `Defendant’). The suit was dismissed vide order dated 7th August, 2006, primarily on the ground that the suit as framed is not maintainable. The trial court held that since the Plaintiff knew the specific amount that was due and had quantified the same in the Plaint and in the notice, the suit for rendition of accounts is not maintainable. Relevant portions of the impugned order are set out below: “…It is thus clear from a plain reading of the aforesaid paragraphs that the Plaintiff knew as to from which particular companies the amount had been by the Defendants and what amount had been paid. Surprisingly, the Plaintiff even after having a definite idea of the amount recoverable from the Defendant, had chosen to file the suit for rendition of accounts 2018:DHC:47 instead of making a prayer for recovery of specific amount. The judgment Gokal Jewellers (Supra) is applicable to the facts of this case. The suit, as framed, is not maintainable. This issue is decided in favour of the Defendants and against the plaintiff.”
2. The present appeal impugning the above order was admitted on 21st January, 2008. Thereafter, none appeared for the Appellant on 5th August, 2011 and the matter remained on board.
3. Learned counsel for the Respondent is present and has taken the court through the impugned order dated 7th August, 2006. The learned trial court has after perusing the pleadings and the documents on record arrived at a categorical conclusion that the Plaintiff knew as to what are the amounts due from the Defendants. In fact, the Plaintiff had adequate knowledge of the payments made by the various companies to the Defendants and the amount recoverable from the Defendants.
4. The legal position in respect of suits for rendition of accounts is clear and is settled by the Supreme Court in K.C. Skaria vs. The Government of State of Kerala, (2006) 2 SCC 285 (hereinafter, `KC Skaria') wherein the Court held as under:
17. To summarise, a suit for rendition of accounts can be maintained only if a person suing has a right to receive an account from the defendant. Such a right can either be (a) created or recognized under a statute; or (b) based on the fiduciary relationship between the parties as in the case of a beneficiary and a trustee, or
(c) claimed in equity when the relationship is such that rendition of accounts is the only relief which will enable the person seeking account to satisfactorily assert his legal right. Such a right to seek accounts cannot be claimed as a matter of convenience or on the ground of hardship or on the ground that the person suing did not know the exact amount due to him, as that will open the floodgates for converting several types of money claims into suits for accounts, to avoid payment of court fee at the time of institution.”
5. A division Bench of this Court while following KC Skaria (supra) has further held in Hari Gokal Jewellers vs. Satish Kapoor 2006 (88) DRJ 837 (DB) (hereinafter, ‘Gokal Jewellers’) as under:
6. The judgment in KC Skaria (supra) has been considered by this Court in Narendra Kumar Rajgarhia v. Vao Techmash Export (dated 31st August, 2017 in CS(OS) 176/2000), wherein the Court dismissed the suit filed by the Plaintiff, who was the commission agent of the Defendant, in similar circumstances.
7. Reiterating the position taken by a Division Bench of this Court in Gokal Jewellers (supra), this Court in Srinivasa Ferro Alloys Limited v. VLS Finance Limited (dated 25th July, 2011 in CS(OS) 575/1999) held that ‘Plaintiffs cannot be permitted to file a suit for recovery under the garb of suit for rendition of accounts’. Thus, the legal position is quite well settled and needs no further reiteration.
8. A perusal of the suit record reveals that the suit in this case was filed on 13th March, 2002. The plaint has set out and detailed in paragraph 4 the various companies/firms from whom business has been procured by the Plaintiff for the Defendant. It is the Plaintiff’s case that the Defendant was to supply copies of all the bills to the Plaintiff for proper accounting which was not done. The Plaintiff has enumerated the specific amounts of business procured by it and the commission payable by the Defendant. In the written statement, the Defendant pleaded that the suit is barred by limitation and contended that no amount is payable. Vide order dated 2nd June, 2006 the following issues were framed in the suit:
1. Whether the Plaintiff is entitled to the relief of rendition of accounts, as prayed for? OPP
2. Whether the suit is time barred? OPD
3. Whether the Plaintiff has no cause of action? OPD
4. Whether the suit is not maintainable? OPD
5. Relief. Issues 2, 3 & 4 were taken up as preliminary issues and vide the impugned order the suit was dismissed.
9. A perusal of the record further shows that prior to the institution of the suit i.e. on 8th February, 1999 the Plaintiff had addressed a communication to the Defendant computing the various amounts due from the Defendant. The Plaintiff claims that a total sum of Rs.27.48 Lakhs is due from the Defendant on account of commission amount. This being the position, the Plaintiff ought to have filed a suit for recovery and not a suit for rendition of accounts. The view taken by the trial court is thus, correct in law.
10. A suit for rendition of accounts cannot be filed in place of a suit for recovery. Such a course of action is impermissible. The trial court has rejected the suit on the ground that the suit by the Plaintiff ought to have been for recovery of a specific amount and not a suit for rendition of accounts. Thus, the impugned judgment is in accordance with the settled legal principles and is neither erroneous nor perverse. The decisions cited above are clearly applicable to the facts of the present case. The suit is not maintainable.
11. The impugned judgment also records that the suit is time barred inasmuch as the last notice was given by the Plaintiff on 8th February, 1999, but the suit was instituted only on 13th March, 2002, which was beyond the limitation period of three years. The notice being an admitted document between the parties, the suit ought to have been instituted within the period of limitation i.e. three years from 8th February, 1999. Having not done so, the suit is barred by limitation. On both counts, the impugned judgment is upheld. The appeal is accordingly dismissed.
PRATHIBA M. SINGH (Judge) JANUARY 03, 2018 R