Dismissed

Gurtej Singh v. M/S Kalgidhar Trading Company/ Commsssion Agent Thr Its Partners

Punjab & Haryana HC13 Aug 2024CR/6896/2016

Case brief

AI extract

What is this about?

Suit for rendition of accounts; preliminary decree passed; Local Commissioner's report objected to by both parties. First Appellate Court set aside final decree and remanded for decision of objections and framing of issues. High Court upheld both remand and issue-framing orders, noting matter had since been finally decided and attained finality.

What the court decided

AI extract

Gurtej Singh Vs M/S Kalgidhar Trading… — Execution and Attachment | Punjab & Haryana HC (2024)

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SAO No.23 of 2016 (O&M) CR No.6896 of 2016 (O&M)

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2024:PHHC:104301 2024:PHHC:104308

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Reserved on : August 08, 2024 Date of Decision: August 13, 2024

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SAO No.23 of 2016 (O&M)

Gurtej Singh

… Appellant

Versus

M/s Kalgidhar Trading Company/Commissioner through its partners

…Respondent

II.

CR No.6896 of 2016 (O&M)

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Gurtej Singh … Appellant

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Versus

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M/s Kalgidhar Trading Commission Agent through its partners …Respondent

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CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA

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Present: - Ms. Ruchi Sekhri, Advocate for the appellant/pe##oner.

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Mr. K.B. Raheja, Advocate for the respondents.

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DEEPAK GUPTA, J.

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This order shall dispose of two cases #tled above, as both of them have arisen out of the same proceedings between the same par#es. In order to avoid confusion, the par#es shall be referred as per their status before the trial Court.

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2.1 Civil Suit No.183 of 2005 was filed by plain#ff -Gurtej Singh ( appellant herein ) against M/s Kalgidhar Trading Company/Commission Agents

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Page no.1 out of 7 pages

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Sarita Rani 2024.08.13 04:01 I attest to the accuracy of this document/order

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SAO No.23 of 2016 (O&M) CR No.6896 of 2016 (O&M)

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through its four partners. The suit was for rendi#on of accounts. It was claimed that plain#ff being an agriculturist used to sell his crops through the defendant's agency. He also used to deposit cash with the defendant's agency and used to withdraw small amounts from #me to #me for his domes#c needs. It was alleged that defendants had not rendered accounts despite his requests and had misappropriated the sale proceeds of his crops. With these submissions, he prayed for a decree of rendi#on of accounts.

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2.2 Two of the partners of the defendant's firm, contested the suit. They denied that the plain#ff was selling his crops regularly. According to them, plain#ff had sold crops only once. It was also claimed that plain#ff had obtained an amount of ₹2 lacs from defendant firm and that present suit was the counter blast, so as to pressurize the defendants to give up that amount and in fact, plain#ff had never deposited any amount in cash with the defendant's firm. It was also stated by the defendants that they had never refused to render the accounts.

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2.3 Necessary issues were framed. A=er taking the evidence, preliminary judgment and decree dated 03.11.2007 was passed in favour of the plain#ff-appellant. The said decree was not challenged.

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2.4 Later, plain#ff filed an applica#on for passing final decree, in which certain objec#ons were filed by the defendants. The Court vide its order dated 05.05.2011 appointed the Local Commissioner to inspect the accounts of defendant's firm, i.e. M/s Kalgidhar Trading Company as per the preliminary decree dated 03.11.2007 and prepare the relevant accounts statements pertaining to both the par#es. The said Local Commissioner submi@ed his report dated 24.01.2012. None of the par#es were sa#sfied with the said report and both of them filed separate objec#ons.

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2.5 Objec#on was raised by the plain#ff to the effect that the Local Commissioner had not taken into account an amount of ₹85,400/-, which was due to him as the sale price of the wheat crops. Besides, the other amounts as deposited by the plain#ff in the ' Rokar Bahi' /Daily Book’ of the defendants were not taken into considera#on. On the other hand, the objec#on was raised by the defendants against the report of the Local Commissioner by

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Sarita Rani 2024.08.13 04:01 I attest to the accuracy of this document/order

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SAO No.23 of 2016 (O&M) CR No.6896 of 2016 (O&M)

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submiDng that the Local Commissioner had chosen the entries made in the 'Rokar Bahi' by adopting the 'pick and choose' method by over looking the entries, which were against the plain#ff and in favour of the defendants.

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2.6 The trial Court, although referred about the objec#ons against the report of the Local Commissioner as filed by both the par#es, but without giving any findings on the objec#ons, passed the final decree on 02.05.2013 by holding that the applicant/decree holder/plain#ff was en#tled to recover an amount of ₹3,61,436/- from the respondents-JD on the basis of rendi#on of accounts.

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Against the aforesaid final decree, the defendants filed appeal before the District Courts. Before the First Appellate Court, objec#on was raised by the appellants-defendants to the effect that without deciding the objec#ons against the report of the Local Commissioner, the final decree had been passed by the trial Court. Upholding this conten#on, the First Appellate Court found that despite objec#ons received against the report of the Local Commissioner as filed by both the par#es, the trial Court had failed to decide the same and had straightway passed the impugned judgment and decree dated 02.05.2013. With these observa#ons, the Appellate Court set aside the judgment and decree dated 02.05.2013 passed by the trial Court and remanded the case vide his order dated 02.01.2016, to the trial Court with the direc#on to decide the objec#on first and if it feels so, to frame the issues, collect evidence and then decide the objec#ons submi@ed on the report of the Local Commissioner.

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Consequent to the aforesaid order dated 02.01.2016, the trial Court framed issues on 22.07.2016 based upon the objec#ons as filed by both the par#es.

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5.1 Against order dated 02.01.2016 remanding the ma@er to the trial Court, SAO No.23 of 2016 is filed by the plain#ff sta#ng therein that there is no provision for invi#ng any objec#ons to the report of the Local

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Sarita Rani 2024.08.13 04:01 I attest to the accuracy of this document/order

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SAO No.23 of 2016 (O&M) CR No.6896 of 2016 (O&M)

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Commissioner appointed under Order 26 Rule 9 CPC and in case any objec#ons are filed by either of the par#es, then neither of the par#es is en#tled to claim any issue with respect to the report and that the objec#ons if any, are to be considered a=er the cross-examina#on, if any, of the Local Commissioner by the Court under Order 26 Rule 10 CPC and that too alongwith other evidence at the #me of final hearing. In support of this conten#on, learned counsel has referred to “Balbir Dewan Cold Storage and General Mills v. Naveen Chander”, 1989 PLJ 247 and “Roshan Lal Singla v. Suresh Kumar”, 2009(2) Law Herald 863 .

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5 . 2 By way of separate revision, i.e. CR No.6896 of 2016, the plain#ff has assailed the order dated 22.07.2016, whereby pursuant to the remand order of the Appellate Court, the trial Court has framed issues on the report of the Local Commissioner based upon the objec#ons filed by both the par#es.

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The conten#on raised by learned counsel for the respondents is that a=er the remand order dated 02.01.2016 and consequent to the framing of the issues on 22.07.2016, both the par#es led evidence and based thereon, the trial Court has already decided the ma@er on 24.11.2017 and it has been found that in fact, it is the defendants/respondents, who were en#tled to an amount of ₹10,737/- from the plain#ff. However, it was held that the said amount was not recoverable, as it had become barred by limita#on and this way the applica#on for passing of the final decree was dismissed.

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6.1 Learned counsel further contends that as far as the objec#ons regarding framing of the issues on the report of the Local Commissioner is concerned, facts of every case are different. In the present case, as both the par#es had objected to the report of the Local Commissioner and the Local Commissioner was not examined by any of the par#es, so it was considered appropriate by the Appellate Court to direct the trial Curt that it has to first dispose of the objec#ons and in case it felt necessary, to frame issues and call for the evidence. Learned counsel has jus#fied the order dated 02.01.2016 of the Appellate Court in this regard.

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Sarita Rani 2024.08.13 04:01 I attest to the accuracy of this document/order

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SAO No.23 of 2016 (O&M) CR No.6896 of 2016 (O&M)

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2024:PHHC:104301 2024:PHHC:104308

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Replying to the aforesaid conten#on, learned counsel for the appellant/plain#ff does not dispute that the ma@er has since been decided by the trial Court vide order dated 24.11.2017, whereby the applica#on for passing of final decree has been dismissed, but it is contended that passing of final order was subject to the outcome of the present SAO and Civil Revision. At the same #me, it is conceded by learned counsel for the appellant/plain#ff that no appeal against the judgment and decree dated 24.11.2017 of the trial Court has been filed by the plain#ff.

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I have considered submissions of both the sides and have appraised the record carefully.

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It is no doubt true that when a Local Commissioner is appointed under Order 26 of CPC and he submits his report, there is no provision for invi#ng any objec#on to the report of the Local Commissioner. However, in case any of the par#es opt to file objec#ons against the report of the Local Commissioner, none of the par#es can claim any issue with respect to the report. As has been held by this Court in Balbir Diwan Cold Storage's case (supra) that objec#ons if any filed by the par#es are to be considered a=er the cross-examina#on, if any of the Local Commissioner by the Court under Rule 10 of Order of 26 of CPC and that too alongwith the evidence at the #me of final hearing.

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However, the facts of the present case are quite peculiar. It is not only that only one of the par#es had filed the objec#ons against the report of the Local Commissioner. Rather, none of the par#es were sa#sfied with the report of the Local Commissioner. Both the par#es filed their respec#ve objec#ons against the report of the Local Commissioner, sta#ng the grounds inasmuch as plain#ff claimed that entry favourable to him was not taken into account and similarly, defendants alleged that the Local Commissioner had adopted the 'pick and chose' policy. It is further evident from the record that none of the par#es preferred to examine the Local Commissioner in support of

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Sarita Rani 2024.08.13 04:01 I attest to the accuracy of this document/order

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the objec#ons as raised by them.

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In the aforesaid facts and circumstances, when none of the par#es was sa#sfied with the report of the Local Commissioner and both of them had filed their objec#ons, the Appellate Court did not commit any error in direc#ng the trial Court to decide the objec#ons of both the par#es and if considered necessary to frame issues on the report based upon the objec#ons of both the par#es and decide the ma@er afresh. Procedure is handmaid of jus#ce and it depends upon fact and circumstances of each case, as to whether any issues are required to be framed on the report of the Local Commissioner.

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In the present case, as has been no#ced above that none of the par#es was sa#sfied with the report of the Local Commissioner and had given their own reasoning to challenge the report and therefore, it was considered appropriate by the Appellate Court to direct the trial Court to decide the objec#ons and in case, it feels necessary to frame issues and take evidence. So, order can not be stated to be wrong.

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Besides, it has already been no#ced that a=er framing the issues by way of order dated 27.07.2016 and a=er taking evidence led by the par#es, the trial Court has already decided the ma@er finally by way of order dated 24.11.2017 and has come to the conclusion that in fact, some of the amount was due in favour of the defendants, but as the claim had become barred by limita#on, so no order could have been passed in favour of the defendants. With these findings, the applica#on for final decree was dismissed. It has also been no#ced that against this order dated 24.11.2017, no appeal has been filed by the plain#ff-appellant.

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In view of all the aforesaid facts and circumstances, it is held that there is no merit either in the appeal filed against the order dated 02.01.2016 or in the revision filed against the order dated 27.07.2016. Even otherwise, the

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Sarita Rani 2024.08.13 04:01 I attest to the accuracy of this document/order

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ma@er has been rendered infructuous with passing of order dated 24.11.2017, which has a@ained finality.

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