Lrs of Ram Kumar Vs. Ram Kumar Murarka and Sons - Court Judgment

SooperKanoon Citationsooperkanoon.com/1165203
CourtRajasthan Jodhpur High Court
Decided OnSep-29-2014
AppellantLrs of Ram Kumar
RespondentRam Kumar Murarka and Sons
Excerpt:
1 in the high court of judicature for rajasthan at jodhpur :judgment: s.b.civil firs.appeal no.99/1985 lrs of ramkumar versus ram kumar murarka & sons (pvt.) ltd.date of judgment :: 29.09.2014 present hon'ble mr.justice arun bhansali mr.sunil ranwa, for the appellant/s. ----- by the court: this appeal under section 96 cpc is directed against the judgment and final decree dated 19.8.1985 passed by the additional district judge, bhilwara, whereby in a suit for rendition of accounts, the court passed a decree for payment of a sum of rs.15,944.99 p. alongwith interest @ 6% p.a.from the date of filing of the suit i.e.20.10.1964. the facts in brief may be noticed thus : the plaintiff- respondent filed a suit for rendition of accounts against the appellant-defendant. a preliminary decree dated 21.4.1969 was passed for rendition of accounts for the period from 16.7.1962 to 13.8.1963, the preliminary decree was confirmed by this court by its judgment dated 15.3.1979 passed in s.b.civil regular 2 firs.appeal no.92/1969. on passing of the preliminary decree, the trial court appointed a commissioner to look into the accounts produced by the parties, who submitted his report dated 3.1.1983 inter-alia reporting that the enterprise sustained a loss of rs.11,282.86 p. as per the profit and loss account, there were some debtors of the company, but since the limitation for enforcing the liability had expired nothing could be recovered and came to the conclusion that nothing remains to be recovered from the defendant as the enterprise had suffered loss during the period under scrutiny. on filing of the report, the plaintiff raised two objections regarding the quantum of sugar manufactured and the amount of advance made by the plaintiff and prayed that the commissioner report be modified or set-aside to the extent of objection and due amount to be decreed in favour of the plaintiff. the trial court, after hearing the parties, modified the income as well as the expenses as determined by the commissioner and come to the conclusion that a net profit of rs.15,944.99 p. was proved and accordingly passed the decree. it would be appropriate to indicate the income and expenditure found by the trial court, which reads as under :- income income from sugar rs.38,800.00 income from rope rs.314.80 sum advanced by plaintiff rs.13,993.68 income from molasses rs.5225.00 total : rs.58,533.48 3 expenditure purchase of sugarcane rs.20,545.15 central excise & octroi rs.4,238.24 stationary & postage rs.94.24 labour charges rs.8,609.25 packing material etc.rs.1,983.90 machinery expenses rs.3,383.89 fuel and other expenses rs.3,533.82 total : rs.42,388.49 in the commissioner report dated 3.1.1983, the commissioner had found the expenses towards purchse of sugar cane at rs.20,545/-, income from sale of sugar at rs.32,701.44 p. and the amount advanced by the plaintiff at rs.12,583.70 p. and for rest of the heads of income and expenditure adopted the profit and loss account and balance- sheet produced by the defendant which indicated a loss of rs.11,282.86 p. regarding the income from molasses, the commissioner came to the conclusion that no stock of molasses was available, the commissioner accepted the production of sugar at 337 bags and 40 kg. as claimed by the defendant. it is submitted by learned counsel for the appellant that the trial court was not justified in coming to the conclusion that the percentage of sugar extracted was at 7% without any basis and reliance placed on exhibit-128 was wholly misplaced. it was further submitted that the finding regarding amount of molasses is wholly perverse, inasmuch as, it was not even the case of plaintiff that any molasses was sold by the defendant and no objection in this regard was raised in the objections filed before 4 the court. further the submissions were made regarding accepting the amount of sum advanced by the plaintiff in contradiction to the amount arrived at by the commissioner. it was claimed that the findings recorded by the trial court are contrary to the plaintiff's own stand regarding loss incurred by the defendant during the relevant period and therefore, the same deserves to be set-aside. despite service, no one is present on behalf of the respondent. i have perused the impugned judgment and the record of the trial court and have considered the submissions made by learned counsel for the appellant. the trial court while considering the commissioner's report for the purpose of final decree came to the conclusion that from the agreement entered into between the defendant and the contractor exhibit-128 it was apparent that the agreement inter se the defendant and the contractor was regarding producing 7% sugar from the sugar cane crushed and therefore, the plea regarding production of sugar at 337 bags and 40 kg. was incorrect and the production of sugar was taken at 400 bags and taking the sale price at rs.97/-, the amount of rs.38,800/- was arrived at. from perusal of the agreement exhibit-128, which was entered into between one kudrat ali khan and the defendant regarding working of the factory, it was inter-alia agreed that it would be the responsibility of the contractor to provide sugar @ 5 7% of the sugar cane. the said document exhibit-128 was found proved by the trial court and the said finding attained finality by way of dismissal of the firs.appeal by this court. before the commissioner, the defendant did not produce any material to prove the claim of sugar extraction less than 7% and reliance was placed on the income and expenditure account and the balance-sheet showing loss. the mere reliance on income & expenditure account and balance-sheet was not sufficient, inasmuch as, despite presence of the said income & expenditure account and balance-sheet, the suit for rendition of accounts was filed by the plaintiff and after contest and considering the income & expenditure accounts and balance-sheet, the trial court passed a preliminary decree which came to be sustained by this court. as such, accepting the amount of sugar cane purchased as claimed by the defendant, the trial court was perfectly justified in view of exhibit-128 in coming to the conclusion that the sugar extracted was 400 bags, and not 337 bags as accepted by the commissioner, as such, to the extent of income from sale of sugar, the finding recorded by the trial court deserves to be sustained. so far as the amount of sum advanced at rs.13,933.68 p. by the plaintiff to the defendant is concerned, the commissioner again relying on the books found and accepted the sum advanced at rs.12,583.70 p., however, the commissioner ignored duly proved exhibits-6 to 12 alongwith exhibit-127 and schedule 'b' with the plaint and did 6 not advert to the said documents at all. as such, the conclusion arrived at by the trial court that the plaintiff had advanced a sum of rs.13,993.68 p. is wholly justified and the finding in this regard does not call for any interference. coming to the issue of sale of molasses, apparently the issue regarding sale of molasses was not raised by the plaintiff while objecting to the commissioner's report, however, the trial court based on the averments contained in para 12 of the plaint and the written statement filed by the defendant came to the conclusion that 275 qtl. molasses was available and taking the income at rs.19/- per qtl. determined rs.5,228/-. a bare look at the plaint averments reveal that in para 15 of the plaint, the plaintiff admitted to have sold 700 containers of molasses after taking the possession of the factory to which in the written statement it was contended that the quantity of molasse was about 250-275 qtl. amounting to rs.5,000/-. however, the trial court misreading the said averments made in the written statement came to the conclusion that the defendant had accepted the availability of 275 qtl. of molasses and has not accounted for the same and arrived at the finding as indicated here-in-before. the averment in the written statement was regarding the stock of molasses available at 275 qtl. in the factory premises at the time possession was taken by the plaintiff and not 700 containers as claimed by the plaintiff and which molasses was admittedly sold by the plaintiff itself and as such, the trial court clearly fell in error in construing the 7 averments made in the written statement that the defendant had sold the molasse amounting to 275 qtl. @ rs.19/- per qtl. and therefore, the finding in this regard deserves to be quashed and set-aside. the finding regarding the cost of sugar cane arrived at by the commissioner being erroneous even in terms of the annexures to the commissioner report was rightly modified by the trial court from rs.21,757/- to rs.20,545.15 p. the rest of the amounts of expenditure were accepted by the commissioner without even adverting to the material placed before him and by accepting the income & expenditure accounts produced by the defendant, as such, the trial court was made to re-examine all the items indicated in the income & expenditure accounts and has arrived at sums different from the income & expenditure accounts based on the material available on record. the contentions raised by learned counsel for the appellant that in absence of objection by the plaintiff in this regard, the trial court was not justified in disturbing the commissioner's report is wholly misplaced in the facts and circumstances of the case. as noticed, the commissioner had not even considered the various items of expenditure and had simply accepted the income & expenditure accounts produced by the defendant and therefore, the trial court was justified in re-examining the various items and arrive at a finding based on the documentary evidence available on record. as such, the contention in this regard has no substance and the same is, therefore, rejected. 8 in view of the above discussion, the appeal is partly allowed. the judgment and decree dated 19.8.1985 passed by the trial court is modified to the extent that the plaintiff is entitled to a sum of rs.10,719.99 p. alongwith interest @ 6% p.a.from the date of filing of the suit i.e.20.10.1964. no costs in this appeal. (arun bhansali).j. rm/-
Judgment:

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT

: S.B.CIVIL FIRs.APPEAL NO.99/1985 LRs of Ramkumar versus Ram Kumar Murarka & Sons (Pvt.) LTD.Date of Judgment :: 29.09.2014 PRESENT HON'BLE Mr.JUSTICE ARUN BHANSALI Mr.Sunil Ranwa, for the appellant/s.

----- BY THE COURT: This appeal under Section 96 CPC is directed against the judgment and final decree dated 19.8.1985 passed by the Additional District Judge, Bhilwara, whereby in a suit for rendition of accounts, the Court passed a decree for payment of a sum of Rs.15,944.99 P.

alongwith interest @ 6% p.a.from the date of filing of the suit i.e.20.10.1964.

The facts in brief may be noticed thus : the plaintiff- respondent filed a suit for rendition of accounts against the appellant-defendant.

A preliminary decree dated 21.4.1969 was passed for rendition of accounts for the period from 16.7.1962 to 13.8.1963, the preliminary decree was confirmed by this Court by its judgment dated 15.3.1979 passed in S.B.Civil Regular 2 FiRs.Appeal No.92/1969.

On passing of the preliminary decree, the trial court appointed a Commissioner to look into the accounts produced by the parties, who submitted his report dated 3.1.1983 inter-alia reporting that the Enterprise sustained a loss of Rs.11,282.86 P.

as per the profit and loss account, there were some debtors of the Company, but since the limitation for enforcing the liability had expired nothing could be recovered and came to the conclusion that nothing remains to be recovered from the defendant as the Enterprise had suffered loss during the period under scrutiny.

On filing of the report, the plaintiff raised two objections regarding the quantum of sugar manufactured and the amount of advance made by the plaintiff and prayed that the Commissioner Report be modified or set-aside to the extent of objection and due amount to be decreed in favour of the plaintiff.

The trial court, after hearing the parties, modified the income as well as the expenses as determined by the Commissioner and come to the conclusion that a net profit of Rs.15,944.99 P.

was proved and accordingly passed the decree.

It would be appropriate to indicate the income and expenditure found by the trial court, which reads as under :- INCOME Income from Sugar Rs.38,800.00 Income from Rope Rs.314.80 Sum advanced by plaintiff Rs.13,993.68 Income from Molasses Rs.5225.00 TOTAL : Rs.58,533.48 3 EXPENDITURE Purchase of Sugarcane Rs.20,545.15 Central Excise & Octroi Rs.4,238.24 Stationary & postage Rs.94.24 Labour Charges Rs.8,609.25 Packing material etc.Rs.1,983.90 Machinery expenses Rs.3,383.89 Fuel and Other expenses Rs.3,533.82 TOTAL : Rs.42,388.49 In the Commissioner Report dated 3.1.1983, the Commissioner had found the expenses towards purchse of sugar cane at Rs.20,545/-, income from sale of sugar at Rs.32,701.44 P.

and the amount advanced by the plaintiff at Rs.12,583.70 P.

and for rest of the heads of income and expenditure adopted the profit and loss account and balance- sheet produced by the defendant which indicated a loss of Rs.11,282.86 P.

Regarding the income from Molasses, the Commissioner came to the conclusion that no stock of Molasses was available, the Commissioner accepted the production of Sugar at 337 bags and 40 kg.

as claimed by the defendant.

It is submitted by learned counsel for the appellant that the trial court was not justified in coming to the conclusion that the percentage of sugar extracted was at 7% without any basis and reliance placed on Exhibit-128 was wholly misplaced.

It was further submitted that the finding regarding amount of Molasses is wholly perverse, inasmuch as, it was not even the case of plaintiff that any Molasses was sold by the defendant and no objection in this regard was raised in the objections filed before 4 the Court.

Further the submissions were made regarding accepting the amount of sum advanced by the plaintiff in contradiction to the amount arrived at by the Commissioner.

It was claimed that the findings recorded by the trial court are contrary to the plaintiff's own stand regarding loss incurred by the defendant during the relevant period and therefore, the same deserves to be set-aside.

Despite service, no one is present on behalf of the respondent.

I have perused the impugned judgment and the record of the trial court and have considered the submissions made by learned counsel for the appellant.

The trial court while considering the Commissioner's Report for the purpose of final decree came to the conclusion that from the agreement entered into between the defendant and the contractor Exhibit-128 it was apparent that the agreement inter se the defendant and the contractor was regarding producing 7% sugar from the sugar cane crushed and therefore, the plea regarding production of sugar at 337 bags and 40 kg.

was incorrect and the production of sugar was taken at 400 bags and taking the sale price at Rs.97/-, the amount of Rs.38,800/- was arrived at.

From perusal of the agreement Exhibit-128, which was entered into between one Kudrat Ali Khan and the defendant regarding working of the factory, it was inter-alia agreed that it would be the responsibility of the contractor to provide sugar @ 5 7% of the sugar cane.

The said document Exhibit-128 was found proved by the trial court and the said finding attained finality by way of dismissal of the fiRs.appeal by this Court.

Before the Commissioner, the defendant did not produce any material to prove the claim of sugar extraction less than 7% and reliance was placed on the income and expenditure account and the balance-sheet showing loss.

The mere reliance on income & expenditure account and balance-sheet was not sufficient, inasmuch as, despite presence of the said income & expenditure account and balance-sheet, the suit for rendition of accounts was filed by the plaintiff and after contest and considering the income & expenditure accounts and balance-sheet, the trial court passed a preliminary decree which came to be sustained by this Court.

As such, accepting the amount of sugar cane purchased as claimed by the defendant, the trial court was perfectly justified in view of Exhibit-128 in coming to the conclusion that the sugar extracted was 400 bags, and not 337 bags as accepted by the Commissioner, as such, to the extent of income from sale of sugar, the finding recorded by the trial court deserves to be sustained.

So far as the amount of sum advanced at Rs.13,933.68 P.

by the plaintiff to the defendant is concerned, the Commissioner again relying on the books found and accepted the sum advanced at Rs.12,583.70 P., however, the Commissioner ignored duly proved Exhibits-6 to 12 alongwith Exhibit-127 and Schedule 'B' with the plaint and did 6 not advert to the said documents at all.

As such, the conclusion arrived at by the trial court that the plaintiff had advanced a sum of Rs.13,993.68 P.

is wholly justified and the finding in this regard does not call for any interference.

Coming to the issue of sale of Molasses, apparently the issue regarding sale of Molasses was not raised by the plaintiff while objecting to the Commissioner's Report, however, the trial court based on the averments contained in para 12 of the plaint and the written statement filed by the defendant came to the conclusion that 275 Qtl.

Molasses was available and taking the income at Rs.19/- per Qtl.

determined Rs.5,228/-.

A bare look at the plaint averments reveal that in para 15 of the plaint, the plaintiff admitted to have sold 700 containers of Molasses after taking the possession of the factory to which in the written statement it was contended that the quantity of Molasse was about 250-275 Qtl.

amounting to Rs.5,000/-.

However, the trial court misreading the said averments made in the written statement came to the conclusion that the defendant had accepted the availability of 275 Qtl.

of Molasses and has not accounted for the same and arrived at the finding as indicated here-in-before.

The averment in the written statement was regarding the stock of Molasses available at 275 Qtl.

in the factory premises at the time possession was taken by the plaintiff and not 700 containers as claimed by the plaintiff and which Molasses was admittedly sold by the plaintiff itself and as such, the trial court clearly fell in error in construing the 7 averments made in the written statement that the defendant had sold the Molasse amounting to 275 Qtl.

@ Rs.19/- per Qtl.

and therefore, the finding in this regard deserves to be quashed and set-aside.

The finding regarding the cost of sugar cane arrived at by the Commissioner being erroneous even in terms of the annexures to the Commissioner Report was rightly modified by the trial court from Rs.21,757/- to Rs.20,545.15 P.

The rest of the amounts of expenditure were accepted by the Commissioner without even adverting to the material placed before him and by accepting the income & expenditure accounts produced by the defendant, as such, the trial court was made to re-examine all the items indicated in the income & expenditure accounts and has arrived at sums different from the income & expenditure accounts based on the material available on record.

The contentions raised by learned counsel for the appellant that in absence of objection by the plaintiff in this regard, the trial court was not justified in disturbing the Commissioner's Report is wholly misplaced in the facts and circumstances of the case.

As noticed, the Commissioner had not even considered the various items of expenditure and had simply accepted the income & expenditure accounts produced by the defendant and therefore, the trial court was justified in re-examining the various items and arrive at a finding based on the documentary evidence available on record.

As such, the contention in this regard has no substance and the same is, therefore, rejected.

8 In view of the above discussion, the appeal is partly allowed.

The judgment and decree dated 19.8.1985 passed by the trial court is modified to the extent that the plaintiff is entitled to a sum of Rs.10,719.99 P.

alongwith interest @ 6% p.a.from the date of filing of the suit i.e.20.10.1964.

No costs in this appeal.

(ARUN BHANSALI).J.

rm/-