Shiva Prasad Seth and Others vs Hanuman Bux Seth

Chatterji, J.—This appeal arises out of a suit for accounts. The plaintiffs have a shop at Sariya in which, they say, their father during his lifetime appointed the defendant as manager on 24th October 1920. He was in charge of the entire business of the shop and was responsible for cash and accounts. He worked till 26th February 1931 when he was dismissed. During the whole period of his service he never explained accounts to the plaintiffs. On the date of his dismissal he is said to have executed a chitha in favour of the plaintiffs agreeing to render accounts. As he put off the matter the plaintiffs through their pleader served him with a notice on 30th March 1931 by registered post asking for accounts. In reply he raised various pleas but never rendered accounts. At the time of his dismissal he made over certain account books to the plaintiffs. On examination of these accounts it is said he was found to have misappropriated at least Rs. 5100; with these allegations the plaintiffs-brought the suit asking for accounts from, him from 24th October 1920 to 26th February 1931. The defendant contested the suit chiefly on the ground that he was not in sole charge of the shop, that he rendered accounts for the period, in question, that all the account books being with the plaintiffs, they could not sue for accouts without giving details of the claim, and that the suit was barred by limitation, as the defendant was dismissed on 15th January 1931, i.e. more than three years before the institution of the suit. The defendant also denied having executed any chitha on 26th February 1931. The learned Subordinate Judge accepted the defence and dismissed the suit. Hence this appeal by the plaintiffs.

The suit was brought on 26th February 1934, that is to say, just on the point of expiry of three years from the date of dismissal as given by the plaintiffs. Along with the plaint a large number of account books ranging from the year 1975 Sambat to 1987-88 Sambat, a list of which has been mentioned in Schedule A in the plaint, were filed. The defendant''s definite case is that all the account books were made over to the plaintiffs and that he explained the accounts. It is an admitted fact that the father of the plaintiffs used to go to the Sariya shop sometimes monthly and sometimes at an interval of two or three months and the object of such visits was to look after the shop. Plaintiff 1 who is P.W. 1 admitted in his evidence that the books of account for Sariya shop were explained each year by either Ghasilal or Raghunath'' or the defendant.

In view of these admitted facts the learned Subordinate Judge was quite right in accepting the defendant''s version that the accounts used to be explained by the defendant every year. But so far as the accounts for the year 1986-87 Sambat are concerned, the year had not expired when the defendant was dismissed and therefore the occasion for explaining the accounts at the end of the year did not arise.

The defendant''s case is that he was dismissed on 15th January 1931 but the learned Subordinate Judge has shown that he wrote the bahis of the plaintiffs'' firm till Fagun Badi 13, 1987 Staibat (15th February 1931). According to the plaintiffs the defendant was dismissed on 26th February 1931 and on that date be executed a chitha, Ex. 3, in which he acknowledged the liability to render accounts. The genuineness of this document is doubted by the learned Subordinate Judge and so he does not rely upon it. Leaving aside this document, if we refer to the notice, Exhibit 1, which was sent by the plaintiffs through their pleader to the defendant on 30th March 1931 and the reply Ex. 2 sent by the defendant on 11th April 1931, it will appear that when the defendant left the plaintiffs'' service he was willing to render accounts but the plaintiffs'' father had no time to look to them.

In the reply, Ex. 2, the defendant further says that he subsequently rendered the entire accounts to the plaintiffs. If really he had done so he must have taken a receipt from the plaintiffs'' father but no such receipt is forthcoming. It is therefore difficult to hold that the defendant did render accounts for the year 1986.87 Sambat. Ordinarily on this finding the plaintiffs would have been entitled to a preliminary decree for accounts from the defendant for the year 1986-87 Sambat. But quite a different situation is created by the fact that the plaintiffs are in possession of all the account books and although they had them in their custody for full three years before they brought the suit they do not either in the plaint or in the evidence give any idea of the nature or extent of the items in respect of which any explanation is needed from the defendant. Indeed it is true that an agent merely by handing over to his principal a set of account books is not absolved from the liability to explain them; but where the principal who is in possession of all the account books sues his agent for accounts he is expected |to disclose such particulars as will establish a prima facie liability of the defendant to account.

In the present case no such particulars are given. There is a bare allegation in the plaint that on examination of the accounts the plaintiffs found that the defendant had misappropriated at least Rs. 5100. No attempt is made in the evidence to substantiate this allegation. The amount mentioned obviously extends over the whole period for which accounts are claimed. But, as I have already held, the accounts were rendered by the defendant for the years previous to 1986-87. In the evidence there is nothing to show that so far as the year 1986-87 is concerned, there is any item of receipt or disbursement with regard to which the defendant may be called upon to account. P.W. 1 says "I prepared an account after defendant left from, the bahis. That account I have not filed".

Upon these facts the plaintiffs have hardly any justification for asking for accounts. In this connection it will be useful to refer to the following observations from the decision in Bharat Chandra Chakrabarty Vs. Kiran Chandra Rai, :

It is not open to any principal, who has got all the accounts of his agent in his possession, to employ the machinery of the Court for examining his accounts on the off chance of making his agent liable for any sum which on such examination may be found due from him.

Reference may also be made to the case in Upendra Kishore Rai v. Ramtara Debya 13 C.W.N. 696. We called upon the plaintiffs to satisfy us with reference to the account books that really any useful purpose will be served by passing a preliminary decree for accounts. The learned;1 counsel on behalf of the plaintiffs appellants and the learned advocate for the defendant respondent placed before us some of the entries in the account books of the years 1986 and 1987, but we are not convinced that any liability on the part of the defendant to account has been established. The real object of the suit seems to be to recover by way of damages from the defendant certain bad debts due from customers which could not be realised from them. In this view it is unnecessary to go into the other questions raised in the appeal. The decision of the learned Subordinate Judge in my opinion seems to be correct.

I would accordingly dismiss the appeal but without, costs

Fazl Ali, J.

I agree.