Gurbaksh Singh Sodi vs Ballavdas Agarwalla

Rentjpada Mukherjee, J.—This appeal arises out of the judgment and decree passed by Sri Monindra Mohan Bhattacharji, subordinate judge, First Court, Howrah, on February 24. 1947, in Title Suit No. 38 of 1944. The suit was originally instituted in the firm-name of Bellavdas Eshwardas, a joint Hindu family trading firm, having its head office at 12, Cullen Place, Howrah, and the plaint was signed and verified on behalf of the firm by Ballavdas Agarwalla, said to be one of the proprietors of the above firm. Thereafter on February 18, 1945, a petition for amendment of the plaint was filed, in which it was disclosed that the firm had another proprietor Eshwardas Agarwalla. A prayer was made for bringing on the record both the proprietors as Plaintiffs. The prayer was allowed by the subordinate judge by his order, dated March 14, 1945, with the result that the suit was no longer a suit by a firm, but a suit by two proprietors of the firm in their individual capacity.

The Plaintiffs'' case in brief may be set forth as follows. The Plaintiffs are the catering contractors of the erstwhile East Indian Railway and some other Railways, having their head office at 12, Cullen Place, Howrah, and the Defendant No. 1 was employed first as an inspector of their catering business at Lucknow on June 1, 1939, and he executed a service contract at the head office at Howrah on July 1, 1939. In October, 1941, the Plaintiffs were appointed by the Railway Administration as their agents and contractors for procurement of foodstuff and distribution of the same, among the Railway employees at Lucknow, and the Plaintiffs took charge of their Railway grain shop at Lucknow on or about October 10, 1941. The Defendant took charge of the said grain shop as its superintendent in addition to his own duties as inspector of the catering business, on the same terms and conditions as set forth in the service contract, dated July 1, 1939. In the initial stages, the funds for the grain shop business were first kept in a Home Savings account with the Central Bank of India Limited, Defendant No. 3, but in or about the month of July, 1942, Defendant No. 1 opened a separate account in the said Bank wherein the funds of the grain shop business were kept. The Defendant No. 1 managed the business well for some time, but later on it transpired that he had misappropriated large sums of money and falsified accounts, and he did not render true and proper accounts though the Plaintiffs made demands in this behalf from time to time. The Defendant No. 1 also made large profits by utilising the Plaintiffs'' money for carrying on a side business with Pokermull Bishambhar Dayal, Defendant No. 2, grain merchants of Lucknow, in clear violation of the terms of the service contract. The Defendant No. 1 was, therefore, placed on suspension on June 5, 1944, and this suit for accounts and other reliefs was instituted on September 6, 1944.

The main relief in the suit was asked against Defendant No. 1. As against him the Plaintiffs asked for a decree for accounts relating to moneys received by him in the course of management of the catering business and the grain shop business, and also for accounts of the side business with Defendant No. 2. As against Defendant No. 2 the Plaintiffs prayed for a decree for accounts of the said business. As against the Bank, defendant No. 3, the Plaintiffs prayed for an injunction restraining the Bank from making any further payment to defendant No. 1 pending the disposal of the suit.

The main contestant in the lower court was Defendant No. 1, whose defence inter alia was the following: The suit is not maintainable in its present form inasmuch as the firm was a partnership firm and not a joint Hindu-family business, and the firm was not registered according to the provisions of the Indian Partnership Act. The Howrah court had no territorial jurisdiction to try the suit, as no part of the cause of action arose within the local limits of the jurisdiction of that court. The service contract was executed at Lucknow on the day the Defendant No. 1 took service with the Plaintiffs on June 1, 1939, and not at Howrah on July 1, 1939, as alleged by the Plaintiffs. On the merits, the Defendant No. 1 denied his liability for accounting, alleging that he had never handled any cash, either of the catering business or of the grain shop. business, the cash having been handled and the daily transactions having been made by the mumms in charge of the business, who sent reports of the daily transactions to the Plaintiffs at their head office at Howrah, and also remitted the surplus cash to them directly. When large scale transactions began to be made, the Plaintiffs placed sufficient funds at the disposal of the Defendant No. 1 for running the business, and so in July, 1942, Defendant No. 1 opened a current account with the Central Bank of India Limited, and all transactions, both relating to the purchase of food grains and the payment of prices, were made since that time through the medium of the Bank, and the Defendant sent monthly reports of these Bank transactions to the Plaintiffs from July, 1942, to September, 1943, after which the grain shop was taken over by the Railway. The above monthly reports would clearly explain the state of the accounts and operate as a sufficient discharge of Defendant No. 1 from his liability, and although Defendant No. 1 had no further liability for accounting, he made over all the account papers of the business as also his Bank accounts to Plaintiff Ballavdas at Howrah, who examined the accounts and directed the Defendant No. 1 to remit Rs. 2,857-4-3 pies in full and final settlement of all the claims. The Defendant No. 1 accordingly sent a cheque for this amount which was accepted by the Plaintiffs. So there can be no question of further accounting.

The Defendant No. 2 also filed a defence denying any liability to render accounts, and alleging that there was no relationship of principal and agent between the Plaintiffs and this Defendant. The Defendant No. 3 also filed a written statement pleading that the Bank was an unnecessary party.

The learned subordinate judge decreed the suit in a preliminary form against the Defendant No. 1, and dismissed the suit against the Defendant No. 2. The suit was also decreed against Defendant No. 3.

As against the judgment and decree of the subordinate judge, this appeal has been preferred by the Defendant No. 1. The following points arise in this appeal:

(1) Is the suit maintainable in its present form?

(2) Has the Howrah court territorial jurisdiction to try the suit ?

(3) Is the Defendant No. 1 liable to render accounts to the Plaintiff? If so, what should be the form of accounting?

(4) Is the Defendant No. 1''s plea adjustment and settlement or accounts true?

As regards the first point, the plea of the Appellant was that the business or businesses, for accounts of which this suit has been instituted, constituted a contractual partnership business, and not a joint Hindu family business. This contention was overruled by the subordinate judge. Not a scrap of paper has been forthcoming on the side of the Appellant to show that the catering business of which the grainshop business was a mere extension and adjunct, was a partnership business. Of course, it is intelligible that it was not possible for the Appellant to produce any paper for showing the nature and character of the business, but Plaintiff Ballavdas (Plaintiffs'' witness No. 2) stated specifically in his evidence that the Railway, catering business was a joint family business of himself and his cousin Eshwardas, and the business has been handed over to them from their ancestors. This evidence has been accepted by the subordinate judge, who has pointed out that no partnership was ever entered into by Ballavdas and Eshwardas, and there is no reason why they should have refrained from registering the business had it been a partnership one.

Learned Counsel for the Appellant drew our attention to one line in the deposition of Ballavdas, where he stated in his cross-examination that the grain shop business at Lucknow was not the family business of the Plaintiffs. Evidently by this statement Ballavdas meant that the grain shop business was not an ancestral business, otherwise this part of the statement cannot be reconciled with his earlier statement that the Railway catering business was the ancestral business of the Plaintiffs. Agreeing with the finding of the learned subordinate judge, we hold that the catering business as also the grain shop business was a joint Hindu-family business of the Plaintiffs, and not a contractual partnership concern.

The contention that was urged with some force on behalf of the Appellant was that the suit, as framed, was a nullity, and no subsequent amendment could cure or validate the initial defect. I have already mentioned that the suit was originally instituted in the name of the firm. It is an accepted principle of law that an undivided Hindu family carrying on business is not entitled to sue as a firm under Order XXX of the Code of Civil Procedure. Lalchand Amonmal v. M.C. Boid and Co. (1934) ILR 61 Cal. 975. There can be no manner of doubt that the suit, as it was originally brought, is not maintainable. I have already observed that a petition for amendment was filed on February 13, 1945, which, was allowed, and both the proprietors of the firm were allowed to carry on the suit in their individual capacity. Learned Counsel for the Appellant argued with some force that the suit itself was a nullity inasmuch as it was instituted by a body which was not a legal entity. He contended that just as a suit instituted against a sole deceased Defendant is a nullity, a suit instituted by or against a joint Hindu family is also a nullity. The analogy, in our opinion, does not hold good. A suit against a deceased sole Defendant is a nullity because the Defendant has no factual existence whatsoever. The same thing cannot be said about a suit instituted by or on behalf of a joint Hindu family because the family has got factual existence, although no legal right or status has been conferred upon it to maintain a suit. In our opinion, if a suit is originally instituted on behalf of a joint undivided Hindu family, and if later on all the members or coparceners constituting the said family are brought on the record as Plaintiffs, the defective plaint is validated and the suit cannot be thrown out as being a nullity. We may also point out that at the time of the institution of the suit one of the Plaintiffs had signed and verified the plaint. Another Plaintiff was brought on the record subsequently within the period of limitation. So this was practically a case of mere addition of Plaintiffs, and the plaint cannot be thrown out on the ground that the suit was initially a nullity.

The next point urged on behalf of the Appellant was that one of the coparceners had been left out, and so the suit was bad for defect of party. It appeared from the cross-examination of Ballavdas (Plaintiff'' witness No. 2) that his father Boochamall, and Jyoti Prasad, father of Eshwardas, had another brother, Ram Bux, who was interested in some of the ejmali family businesses. An argument was built on this statement that Ram Bux, if alive, should have been made a Plaintiff, and indeed, his heirs should have been impleaded as Plaintiffs.

The question of defect of party was not specifically pleaded in the written statement of the Defendant No. 1. The objection that the suit is not maintainable in the present form, does not necessarily imply an objection that a vital party has been left out whose omission is fatal to the success of Plaintiffs'' suit. In this connection I may refer to the amendment petition filed on February 13, 1945, in which it has been distinctly stated that the two Plaintiffs Ballavdas and Eshwardas are the partners of the firm. An additional written statement was filed on March 27, 1945, in which the objection of the non-maintainability of the suit was reiterated, but there is not a whisper in the additional written statement that any necessary party had been left out. In this connection, I may refer to a letter written by Defendant No. 1 himself, ext. 1(Z), dated May 30, 1944, in which it was admitted that the firm had two proprietors and no more. In these circumstances, we cannot theorise as to whether Ram Bux, or any other person claiming through Ram Bux, has any interest in the business of the suit, and the objection on that score which appears to have been improvised on Ballavdas''s statement in cross-examination must be ruled out.

We, therefore, hold that the suit is maintainable in its present form.

The second point urged on behalf of the Appellant was that the court of the subordinate judge at Howrah had no territorial jurisdiction to try the suit. It was alleged on behalf of the Appellant that the businesses were carried on at Lucknow, where Defendant No. 1 resided for looking after them. The Plaintiffs no doubt resided generally at Howrah, but the place of residence of the principal should not determine the forum of the suit. A reference was made in this connection to a case, Koka Audinarayana Rao Naidu v. Rhavaraju Lakshminarayana Rao [1940] A.I. 3. (Mad.) 588.

The Plaintiffs Respondents, on the other hand, contended before us, that the service contract was executed by the Appellant at the head office of the Plaintiffs at Howrah, and this fact conferred jurisdiction on the Howrah court to try the suit. It is, therefore, necessary to examine where the service-contract was executed.

The contract has been marked as Ext. 3 in this suit. It appears to have been signed by Gurbaksh Singh Sodhi, the Appellant, as employee, and by Plaintiff No. 1 Ballavdas on behalf of the proprietors. Further, the contract appears to have been attested by two witnesses, viz., Ram Chandra munim and R.C. Banerjee. The date is given as July 1, 1939. Below the signature of R.C. Banerjee the place of execution is noted as Howrah. Except the bare testimony of the Appellant, there is no other evidence on the record that the contract was signed and executed by him at Lucknow on June 1, 1939, on which date he entered the Plaintiffs'' service. The Appellant admitted in his evidence that the contract was attested by R.C. Banerjee. There is no reason whatsoever why at that distant time, R.C. Banerjee would post-date his signature. It is also quite likely that the Appellant, who was entering a service of some responsibility would be made to sign and execute the service-contract in the presence of the proprietors at their head office at Howrah, and it is extremely unlikely that the general manager R.C. Banerjee would be sent to Lucknow, for witnessing the execution of the contract at that place, as was contended by the Appellant.

On behalf of the Appellant reliance was placed on a telegram purporting to have been sent by him from Tundla. The telegram itself is not forthcoming. An account of the Plaintiffs, Ext. 4(b), would show that a charge for the telegram said to have been despatched from Tundla on July 1, 1939, was allowed by the Plaintiffs. This amount was entered in the account, dated July 23, 1939, Ext. 4(b). In the absence of any reliable or satisfactory evidence, we are unable to hold that the Appellant was really at Tundla on July 1, 1939, and he despatched the telegram from Tundla on that date. It is quite possible that a subordinate officer of his had despatched the telegram from Tundla, even if it be assumed that such a telegram was despatched from Tundla on July 1, 1939. That fact, however, is not borne out by the Plaintiffs'' accounts. The finding of the subordinate judge on this point is halting and inconclusive, inasmuch as he says that the Defendant''s plea that he did not sign the service-contract at Howrah may be true. After examining the evidence in detail, we hold that the service-contract was executed at Howrah by the Appellant on July 1, 1939, and this fact confers jurisdiction on the court at Howrah to try the suit.

Some observations were made by the subordinate judge to the effect that the Appellant had accepted the position that the accounts were to be rendered at Howrah, and accordingly he sent his monthly reports to Howrah, and he has also pleaded that full and final settlement of accounts had taken place at Howrah. In the opinion of the subordinate judge, these facts also vested the Howrah court with jurisdiction. We are unable to agree with the above observations of the subordinate judge, inasmuch as an admission of the parties cannot confer jurisdiction where such jurisdiction is inherently wanting.

On behalf of the Plaintiffs it was alleged that even if it be conceded that territorial jurisdiction was wanting in the Howrah court, the Appellant has failed to substantiate that there has been a failure of justice in the trial court, and so under the provisions of Section 21 of the Code of Civil Procedure, the Appellant should not be allowed to question in this Court the jurisdiction of the Howrah court. After examining the records of this case, and after hearing the appeal on its merits, we think that the provisions of Section 21 of the CPC are attracted to the facts of the present case.

It is now admitted that the grain-shop-business, the accounts whereof are the main bone of contention between the parties, has practically been wound up and all the material papers have been sent to the Plaintiffs'' head office at Howrah. It is also the case of the Appellant that the accounts have been adjusted at Howrah. Although it was stated in the memorandum of appeal that there has been a failure of justice in the trial court in this case, it was not specifically stated in what manner or in what respect injustice has been done to the Appellant by the trial of the present suit at Howrah. As no case of failure of justice has been made out, we hold that the trial at Howrah is not vitiated by want of jurisdiction, The Bengal Provident and Insurance Co. Ld. v. Kamini Kumar Choudhury (1918) 22 C.W.N.

On the grounds stated above we hold that the Howrah court had jurisdiction to try the suit.

We now come to points 3 and 4 which deal with the merits of the suit.

It is an admitted fact that the Appellant was employed in Plaintiffs'' business from June 1, 1939, to June 5, 1944. At first he was employed as an inspector of the Plaintiffs'' catering business at Lucknow, and later on as superintendent of the grain-shop business after the Plaintiffs got a contract for the Railway grain-shop at Lucknow for supplying food grains to Railway employees. The nature of this business was that the Plaintiffs would procure and purchase food grains, mostly wheat, on behalf of the Railway, and distribute them amongst the Railway staff at Lucknow on coupon system, realising a commission from the Railway on the total quantity of foodstuff purchased and distributed by them. Besides wheat, rice, and pulses and other foodstuff also appear to have been stocked and sold at the shop. For the purpose of the present appeal, we need not enter into further details as to the nature of the business conducted in the grain-shop. It is admitted on behalf of the Appellant that ever since the inception of the grain-shop business he was placed in charge of it, over and above his own duties as inspector of the catering business. The grain-shop business was conducted till October, 1943, and was taken over by the Railway in November, 1943. It took some months more to collect the outstanding dues and pay the outstanding debts. The Plaintiffs'' case was that although from the latter part of 1943 the Appellant was being repeatedly asked to render accounts, he did not submit any, and, therefore, he was placed on suspension on June 5, 1944.

The accountability of the Appellant seems to have been denied in paras. 10 and 11 of the written statement wherein it was stated that the Appellant did not handle any cash, either of the catering business or of the grain-shop business. It was the munims of either business who handled the cash and maintained daily accounts, copies whereof were directly sent by them to the head office at Howrah, and the surplus cash was also remitted by them to the proprietors direct, from time to time. It was further contended by the Appellant that when large scale transactions began to be made for the grain-shop business from June, 1942, the purchases and the payments were made through the Appellant''s Bank-account, the monthly reports of which were submitted regularly by him, and these reports in themselves constitute a sufficient discharge from the Appellant''s liability for rendering accounts.

In the appeal before us, it was fairly conceded by learned Counsel for the Appellant that his client had liability for accounting, and whether or not there is any specific provision in the service contract, such accounts should be rendered, because large sums of money belonging to the Plaintiffs have passed through Defendant No. 1''s Bank-account, for which, as agent, he must render a true and proper account. But the learned Counsel for the Appellant put forth a threefold defence in answer to Plaintiffs'' claim which I shall consider one after another.

First, the monthly reports submitted by Defendant No. 1 about the Bank transactions should be taken as a sufficient discharge of the Appellant''s liability.

Secondly, the accounts were thoroughly examined and verified by one Ramdayal, munim at Lucknow, towards the end of 1943, and subsequently by Plaintiff Ballavdas at Howrah in March, 1944, and in pursuance of the latter''s instructions, the Appellant sent a cheque for Rs. 2,857-4-3 pies in full and final settlement of Plaintiffs'' claim. This cheque was accepted by the Plaintiffs which put an end to all liability of the Appellant for accounting.

Thirdly, it was contended by the Appellant that all the account papers were submitted to the Plaintiffs, who did not object to any item and did not call upon the Defendant to explain any dubious or suspicious entry, and so the Plaintiffs have got no cause of action for instituting the suit.

As to the first contention of the Appellant, I may mention that even according to the Appellant''s admission large sums of money of at least the grain-shop business passed either through the Appellant''s Bank account or through his hands, for which a true and proper account must be rendered. In this connection I may refer to the Appellant''s Home Savings account with the Central Bank of India (Ext. 12). This account appears to have been opened on November 19, 1935, with a deposit of Rs. 10. It is admitted that during June and July, 1942, the funds of the grain-shop business were put in this account. A lump sum of Rs. 10,000 belonging to the Plaintiffs was withdrawn from this account on July 24, 1942, on which date a Current account in the same Bank was opened in the Appellant''s name (Ext. 14). Exhibit 14 shows the position of the current account from July 24, 1942, till the end of that year. Exhibits 14A to 14G are copies of the current account of the Appellant from January 1, 1943, to April 26, 1944. The balance on the last date was Rs. 6,239-3-9 pies after the payment of Rs. 2,857-4-3 pies to the Plaintiffs by a cheque, to which I shall refer later. The Plaintiffs'' contention in the lower court was that the entire balance of the current account belonged to them. This was not admitted by the Appellant, whose case was that the Plaintiffs'' money was mixed up with his own money and that the moneys belonging to the respective parties can be easily separated.

After examining the accounts for the purpose of coming to a decision as to whether a preliminary decree should be passed, we are of the opinion that the contention of the Appellant that the moneys of the two parties can be easily separated, cannot be accepted and the dispute between the two parties regarding the current account amounts cannot be satisfactorily settled, unless the Bank accounts are checked and verified with the Plaintiffs'' business accounts. Such a verification was admittedly never done by the Appellant himself. The monthly reports of the Bank accounts which the Defendant sent to Howrah (Exts. D series) are mere copies of the Bank account. They cannot certainly operate to give the Appellant a discharge from his liability for rendering accounts. This is made clear by some of the letters which passed between the parties.

Exhibit B28 is a letter, dated February 7, 1944, in which the Plaintiffs were demanding that Rs. 9,014-13 as., being the balance in the current account on November 25, 1943, should be sent to them, as the amount wholly belonged to them. Exhibit B53 is a letter written by the Appellant Sodhi on February 12, 1944, in which he stated that although the above sum was the balance in the current account, the whole of it could not belong to the Plaintiffs, and the Appellant stated that he was liable to pay the money remitted to his Bank from day to day, minus the payments made by him.

The Bank accounts do not give a complete picture of the accounts of the grain-shop business, and their accuracy cannot betaken as axiomatic without verifying them with reference to the business papers of the Plaintiffs, which appear to have been kept in the usual course of business. The fact whether all moneys received by the Appellant from various sources were duly credited, and all disbursements were properly made, can only be ascertained after verifying the Bank accounts with the account papers maintained in the course of the business.

In this connection I may refer to some further fact, for coming to a conclusion that the monthly reports relied on by the Appellant cannot absolve him from any liability for accounting. Exhibit I.S. is a letter, dated September 15, 1942, which was addressed by the Plaintiffs to the Appellant. In this letter he was asked to show in his monthly statements all transactions made through the Bank. He was also asked to send an account showing the cash balance in the Bank, the value of wheat in the shop at cost, the value of wheat under transit, and also to give a clear idea about the wheat transactions. Except in the first monthly report (Ext. D), dated August 18, 1942, all other reports are silent, so far as the stock and price of wheat and other informations are concerned. In these circumstances, Exts. D series cannot be accepted as having operated as a valid discharge of the Appellant from his liability for accounting.

I now come to the second contention of the Appellant, viz., whether the accounts were completely examined by the parties, and the cheque for Rs. 2,857-4-3 pies accepted in full and final settlement. The plea of final adjustment and settlement of accounts falls under two heads: (i) it was contended, in the first place, that all the accounts were thoroughly checked and verified by Ramdayal, munim at Lucknow; and (ii) Ballavdas himself scrutinised the accounts at Howrah, and a cheque for Rs. 2,857-4-3 pies was given by the Appellant in full and final settlement. As to the first part of the above contention, it became admitted before us that the Lucknow accounts, particularly the accounts of the grain-shop, were examined by one Ramdayal, munim during the latter part of 1943. On October 2, 1943, it was reported by Appellant Sodhi to the general manager R.C. Banerjee, that the munim at Lucknow was an incompetent man, and there was a muddling of accounts and stock position of the foodgrains. (Ext. B51.) The letter of R.C. Banerjee, Ext. B23, dated October 13, 1948, would show that Ramdayal, munim, was asked to proceed to Lucknow to look into the accounts there. The correspondence on the matter would show that Ramdayal was sent to Lucknow for examining the accounts which are reported to be in a hopeless mess. He was never asked, and certainly he was not authorised, to settle or adjust the accounts as between the Plaintiffs and the Appellant. So Ramdayal''s examination of the accounts does not absolve the Appellant from his liability to render accounts to the Plaintiffs-Respondents. Ramdayal was not called to depose by either party, nor does the record contain any report which Ramdayal might have made in the matter. In these circumstances, the examination of the accounts by Ramdayal does not avail the Appellant in any way so far as this suit is concerned.

The next, and the more important, branch of the Appellant''s argument was that he made over all account papers to the Plaintiffs at Howrah, which were examined and scrutinised by Plaintiff Ballavdas himself in March, 1944, and the liability of the Appellant was fixed at Rs. 2,857-4-3 pies by Ballavdas, and the Appellant sent a cheque for this amount to him in full and final settlement of all claims of the Plaintiffs. That a necessity was felt for taking a full and detailed account from the Appellant from the last part of 1943, would be made clear by some of the correspondence which has been filed by the parties. Exhibit B48 is a letter, dated November 22, 1943. In this letter the Appellant was asked to come with all documents after all accounts under dispute with the Railway had been settled. Exhibit IM is a letter, dated November 29, 1943, in which Sodhi reported to R.C. Banerjee that the accounts were not ready. Exhibit B24 is a letter, dated December 20, 1943. In this letter Plaintiff Ballavdas himself asked the Appellant to bring all account papers and Bank papers for final adjustment of accounts and scrutiny. The account papers which were to be brought by Sodhi were also specified. Exhibit B50 is a letter, dated December 30, 1943, by Sodhi to R.C. Banerjee, general manager, in which it was reported that the account papers were sent through one Hajarilal. Exhibit B27 is a letter, dated February 1, 1944, from R.C. Banerjee to Sodhi in which Sodhi was asked to remit the balance of Rs. 9,000 or so, and was also asked to settle the grain-shop matters. Exhibit 1Z 23 is a letter, dated February 4, 1944 in which Sodhi stated that the amount due to the firm fell far short of the amount of Rs. 9,000, and the Hindi accounts were full of incorrect and fraudulent entries. Exhibit IN is a letter, dated February 7, 1944, wherein the proprietors wrote to Sodhi, that the accounts were completely under his charge and he could not avoid responsibility by throwing blame on others. This is the background against which the adjustment of accounts is said to have taken place during the 1st part of March, 1944.

The most material document relating to the alleged adjustment is a letter, dated April 10, 1944, ext. B60. It purports to have been addressed by Appellant Sodhi to Plaintiff Ballavdas. It is stated in this letter that in accordance with the final settlement of the Lucknow Bank account, which Ballavdas had arrived at after examining the accounts in Appellant''s presence, the Appellant enclosed a cheque for Rs. 2,857-4-3 pies as desired by Ballavdas and also a consolidated statement showing the complete transaction carried out through the Appellant''s Bank from June, 1942, to January, 1944. Admittedly, Plaintiff Ballavdas was at Hathras at this time in connection with a marriage ceremony. The Plaintiff''s case is that the Appellant sent only the cheque to Ballavdas at Hathras without the covering letter or the consolidated statement. The Appellant''s case is that he not only sent the cheque but also the letter and the consolidated statement to Ballavdas, and he also sent copies of the letter and the statement to the head office at Howrah. It is somewhat immaterial whether the covering letter and the consolidated statement were sent to Ballavdas at Hathras, because it is an admitted fact that they were sent to Howrah, and also it is in evidence that in less than a week of receipt of this letter and statement, the general manager sent a reply to Sodhi on April 17, 1944 (Ext. B26), acknowledging receipt of the cheque, but repudiating the allegation of full and final settlement. This letter is said to have been written according to the instructions of the proprietors.

On behalf of the Appellant, it was contended before us that Ballavdas himself accepted the cheque and did not repudiate the allegation of adjustment of accounts although he himself wrote a letter to the Appellant on April 23, 1944 (Ext. B20). In his evidence in the lower court Ballavdas stated that the story of adjustment was repudiated by his manager under his instructions. This also seems to be the tenor of the letter marked Ext. B26. In these circumstances, there was no necessity for Ballavdas to repudiate the story of full and final settlement separately. The Appellant''s plea that the accounts were completely adjusted by Ballavdas cannot be believed, not only because the allegation of settlement was forthwith repudiated on behalf of the Plaintiff, but also because the story is full of inherent improbabilities.

It is the case of the Appellant that Ballavdas scrutinised the accounts and gave a discharge. No written discharge is forthcoming in this case. It is not the case of the Appellant that the assistance of any officer of Lucknow was taken for verifying the accounts. It cannot be believed that Ballavdas who resided at Howrah would have been in a position to examine and verify the accounts. Then again Ext. B60 itself would show that what was settled was the Lucknow Bank account of the Appellant. Evidently the Appellant was still labouring under the impression that an examination of his Bank account only would completely exonerate him from his liability of rendering account. On an examination of these facts and circumstances, we are of the opinion that the accounts were never adjusted completely between the Plaintiffs-Respondents on the one hand and the Appellant on the other. Some money was admittedly due to the Plaintiffs. The acceptance of the cheque for Rs. 2,857-4-3 pies followed by a repudiation does not amount to a final settlement of accounts. We, therefore, hold that the accounts were never adjusted as has been alleged by the Appellant.

I now pass on to the last objection taken by the Appellant on the question of his liability for accounting. It was argued on his behalf that he has submitted all account papers, and no entry has been objected to by the Plaintiffs-Respondents, and be was never called upon to explain accounts; so there is no cause of action for this suit. Reliance was placed in support of this contention on the case, Bharat Chandra Chakrabarty v. Kiran Chandra Rai (1825) ILR 52 Cal 786. There are. however, distinguishing features in the present case which take it out of the purview of the decision of the case cited before us. It has been found by the trial court that all account papers were not submitted by the Appellant and some were withheld by him. In the second place, it has been found that the Appellant had been repeatedly called upon to render accounts and as his plea of adjustment of accounts has failed, it must be taken that he refrained from submitting true and proper accounts. Lastly, it transpired from the cross-examination of the Appellant that the account papers are faulty and open to suspicion in several respects. In one portion of his cross-examination, the Appellant admitted that some direct supplies to the Railway were not entered in the accounts. He further admitted that on the back of the copy of a statement some transactions were shown with the Defendant No. 2 which are not entered in the accounts, although the purchases were made with Plaintiffs'' money. There are thus many items of the accounts which require explanation. That being the case, we are of the opinion that the Appellant''s liability for rendering accounts has not been discharged, and he should be called upon to render accounts.

The next question is in respect to which of the business or businesses there should be accounting, and what should be the form of accounting. The lower court has decreed the suit in a sweeping and comprehensive form for taking accounts between the parties by a commissioner in respect of the (i) catering business, (ii) grain-shop business, and (iii) the side business. The decree for the side business cannot stand. There is no definite finding by the subordinate judge that the side business was actually conducted by the Appellant and no account papers in respect of that business were forthcoming in the lower court. The Plaintiffs should be satisfied if all the moneys received by the Appellant are accounted for. In these circumstances, the decree should be set aside so far as the side business is concerned.

As regards the catering business and the grain-shop business, there can be no doubt that there should be an accounting. The Appellant admittedly received large sums of money in connection with the grain-shop business. It was also brought to our notice that moneys from catering business of some outstations were received by the Appellant. For the purpose of the preliminary decree it was not necessary to show exactly what sums of money were received by the Appellant from the catering business at Lucknow or outstations. This matter will come within the scope of final accounting. It is obvious, therefore, that the Appellant must render accounts for the moneys received for the catering and grain-shop business but the sweeping form in which the decree has been passed by the subordinate judge cannot be maintained. The Plaintiffs have not furnished any succinct statement of accounts with the plaint as is generally done in cases of this description. The claim against the Appellant has been tentatively laid at Rs. 20,000, but no data or materials have been furnished even in a rudimentary form in support of this figure. The Appellant was not the writer of the books of accounts which were written in Hindi. It would be grossly unfair to ask him to explain each and every item of entry in the accounts. He should certainly be asked to account for all moneys received by him on Plaintiffs'' account from whichever source he might have received them, and also to account for all disbursements made by or through him. A suitable direction will be given in the ordering portion.

While on the subject of accounting, we must observe that the lower court''s finding on issue No. 5 of that court must be reversed. This issue runs to the effect:

Are the monies deposited from time to time in the Defendant''s Home Savings Account and the Current Account with the Central Bank of India or any part thereof the property of the Plaintiffs ?

This issue has been answered in favour of the Plaintiffs which probably means that all the moneys deposited in the two accounts belonged to the Plaintiffs. Such a finding at this stage of the suit is premature and unwarranted, as it cannot be properly made unless the whole accounts are gone into and scrutinised by a commissioner. So the finding upon issue No. 5 is set aside.

In the result, this appeal is allowed in part. The judgment and decree of the lower court are modified in the following manner: There will be a preliminary decree for accounts with regard to the catering business and the grain-shop business but the decree for accounting for the side business is set aside. By January 2, 1953, the Plaintiffs-Respondents must file in the trial court a succinct statement of accounts showing all sums of money received by the Appellant on Plaintiffs'' account for the catering business and the grain-shop business. The account will show all disbursements made by or through the Appellant on Plaintiffs'' behalf in connection with the catering business and the grain-shop business, and the balance, if any, which according to the Plaintiffs would be recoverable from the Appellant. In this statement the Plaintiffs will also be entitled to show such transaction or transactions as have not been entered in the accounts and for the omission of which the Appellant is liable as also transactions which according to the Plaintiffs are of a doubtful or suspicious nature. Upon such a statement being furnished, the Appellant will be at liberty to file his answer thereto within such time as the lower court may allow. After the above statement and the Appellant''s answer, if any, are filed, a commissioner will be appointed by the lower court for taking accounts between the parties on the basis of the above statement and answer which will be examined and verified with reference to the account papers already filed by the Plaintiffs-Respondents in court and such Bank papers of the Appellant as he has already filed and as he may file subsequently. If the Plaintiffs fail to file the statement within the period mentioned above, the suit will stand dismissed.

The injunction order passed by the lower court against Respondent No. 4 is affirmed.

Having regard to the result of this appeal, the Appellant and the Plaintiffs-Respondents will bear their own costs of this appeal.

On behalf of Respondent No. 4 a prayer was made for being allowed costs. We, however, find that in the present appeal no relief was claimed against this Respondent, and there was no necessity for the appearance of Respondent No. 4. That Respondent will bear its own costs in this appeal.

Mookerjee, J.

I agree.