Shri Ganesh Arjun Ghatwal (Since ... vs Smt. Shrimati Arjun Ghatwal And ...
2004 Latest Caselaw 1239 Bom

JUDGMENT

N.A. Britto, J.

1. This appeal is filed by the defendants in Special Civil Suit No. 20/97/ A against the judgment/decree dated 8.7.2002, of the learned Civil Judge, Senior Division, Bicholim, by which the plaintiff's suit for recovery of a sum of Rs. 23,67,260.42 and/or for accounts was decreed against the defendants in the sum of Rs. 19,39,015.02 with interest at the rate of 6% per annum from 1.2.1997.

2. The parties hereto shall be referred to in the names as they appear in the cause title of the said civil suit.

3. There is no dispute that late Arjun Ganesh Ghatwal is the husband of plaintiff No. 1 (since deceased) and father of plaintiff Nos. 2, 3 4, 5, 6 and 7 and defendant No. 1. The defendant No. 2 is the wife of defendant No. 1.

4. The said late Arjun Ganesh Ghatwal was a tenant of some properties including paddy fields situated at Poira in Mayem Village which were acquired for the construction of new B G line between Roha and Mangalore for the Konkan Railway Corporation by virtue of Notification issued under Section 4(1) of the Land Acquisition Act, 1894. The defendant No. 1 was the eldest son of the said Arjun Ganesh Ghatwal and he received 80% of the compensation payable pursuant to a power of attorney dated 20.4.1992 and affidavit given in his favour by the late Arjun Ganesh Ghatwal. The balance of 20% of compensation was also collected by defendant No. 1 after the death of the said Arjun Ganesh Ghatwal which took place on 12.7.1994, pursuant to a power of attorney given on 1.8.1994 by plaintiff Nos. 1, 2 and 3.

5. There is also no dispute now before this Court that the compensation which was received by defendant No. 1 pursuant to the power of attorney dated 20.4.1992, given by the said Arjun Ganesh Ghatwal is Rs. 13,39,921.76 and the compensation received by him pursuant to the power of attorney given on 1.8.1994 is Rs. 5,99,093.26 as held by the learned Trial Court by assessing the evidence produced.

6. The case of the plaintiffs is that defendant No. 1 kept the said compensation (80%) with him stating that the same would be distributed to the plaintiffs and to him, as per their shares as per the wish of late Arjun Ganesh Ghatwal. The plaintiffs stated that as their old house situated in Survey No. 42/2 was also acquired, defendant No. 1 told the plaintiffs that he would pay the said compensation but later on he began to dodge them and avoided to make the payment as a result of which the plaintiffs first revoked the power of attorney dated 1.8.94 on 21.11.1996 and then by lawyer's notice dated 20.1.1997, called upon defendant No. 1 to pay their shares in the said compensation.

7. On the other hand, it is the case of the defendants, as far as the receipt of 80% of compensation is concerned, that the same was paid by defendant No. 1 to his father as per his directions who distributed the entire amount as per his wish to his heirs in whom he was interested. The defendants stated that the 20% of compensation was utilised for the construction of the new house to the knowledge of the plaintiffs. The defendants also stated out of the said amount, he constructed 3 houses and spent more than Rs. 6,00,000/-.

8. As already stated, the Defendants do not dispute that the amount received by defendant No. 1 is Rs. 13,39,921.76, being 80% of compensation and Rs. 5,99,093.26, being 20% of the compensation, payable on account of the said acquisition.

9. Mr. S. D. Lotlikar, learned Senior Counsel of the Defendants has referred to the provisions of Order 20, Rule 16 and has submitted that the suit of the plaintiffs being one for accounts, the learned Trial Court ought to have passed a preliminary decree first, before decreeing the suit finally. Mr. Lotlikar has further submitted that the learned Trial Court had to make a distinction between the amount received prior to the death of their father and the amount received after his death.

10. Mr. J. E. Coelho Pereira, learned Senior Counsel of the Plaintiffs has first submitted that the submission made by Mr. Lotlikar, is not a ground taken in the memorandum of appeal and, therefore, ought not be considered. Mr. Coelho Pereira, learned Senior Counsel has next submitted that Rule 16, Order 20 of the C.P.C. provides that a preliminary decree is required to be passed where it is necessary to do so and in this case it was not necessary and both the parties had chosen to produce evidence, in support of their respective claims. He further submits that the learned Trial Court has decided the suit on the basis of the evidence as regards the quantum of compensation received by defendant No. 1 first as attorney of his father and then as attorney of the plaintiff Nos. 1, 2 and 3.

11. Rule 16, Order 20 of the C.P.C. reads as follows :-

Decree in a suit for account between principal and agent.-

In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore provided for, where it is necessary in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.

12. As can be seen from the words of Rule 16, Order 20 a preliminary decree is required to be passed where it is necessary in order to ascertain the amount of money due to or from any party and not otherwise.

13. In the case of Hukam Chand Gappulal Parwar and Anr. v. Mohammadji Abdulji Musalman and Anr., AIR 1940 Nag. 207 a Division Bench held that though the general rule is that in suits for an account, a preliminary decree directing accounts to be taken should be passed before passing a final decree, yet in cases where the facts are so simple, either by admission or proof, as to afford a ready decision, so that the taking of accounts shall be unnecessarily lengthening the proceedings, without any benefit to the parties, a final decree may be passed, without any preliminary decree. In the case of Purushottam Hardas and Ors. v. Amruth Ghee Co. Ltd., Guntur and Ors. a Division Bench of that Court observed that there is no rule or principle of law which requires a Court to pass a preliminary decree invariably in every suit for accounts. Normally, a preliminary decree is granted in such suits because it would be necessary to go into the accounts and a Court may think it advisable to appoint a Commissioner to ascertain the state of account between the parties. But that is not a rigid rule which should be followed in every case irrespective of its circumstances. In simple cases, which do not involve much scrutiny of accounts, a Court is not bound to pass a preliminary decree but could straightway give a decree for a certain amount if the material on record enables it to do so.

14. In the case at hand, the parties did not prevail upon the learned Trial Court to pass a preliminary decree. On the contrary, the case at hand is a case where the receipt of 80% as well as 20% of the compensation was admitted by the defendants and both the parties chose to lead evidence to show what was the amount which was actually paid by the Government on account of the said acquisition and this could have been proved, by simple method, as has been proved in this case, by the production of the records from the office of Special Land Acquisition Officer. The suit of the Plaintiffs was not for accounts as is generally understood but was a suit directing the defendant No. 1 to account for the money which he admittedly received, first on behalf of deceased Arjun Ganesh Ghatwal and subsequently on behalf of plaintiff Nos. 1, 2 and 3 pursuant to powers of attorney executed in his favour. The case being a simple one where both the parties had chosen to lead evidence on merits of the case without there being a preliminary decree and where such decree was also unnecessary, it is now not open to the defendants to contend in appeal that no final decree could be passed without there having been a preliminary decree passed in the suit. The first contention of the defendants, therefore, has got to be rejected.

15. The second contention of the defendants is that the complexion of the suit has now changed after the death of defendant No. 1, in that, the legal heirs of deceased defendant No. 1 would be liable to pay only to the extent of the assets in the hands of the said legal representatives. In this context, Mr. Lotlikar, learned Senior Counsel has placed reliance on the cases Badrinath Upadhya v. Kesho Kumar, AIR 1940 Pat. 114; Krishna Mhatarba Temkar and Anr. v. Baban Rambhau Temkar and Ors., AIR (32) 1945 and Maneklal Mansukhbhai v. Jwaladutt Pilani, AIR (34) 1947 Bom. 135.

16. In our view, the subsequent death of deceased defendant No. 1 cannot change the complexion of the decree. To what extent his legal representatives would be liable to pay would be a matter which the Court executing the decree would be concerned with. Needless to say, the legal representatives would be liable to pay the decretal amount to the extent of the assets received by them from the said defendant No. 1.

17. Mr. Lotlikar, learned Senior Counsel has further submitted that the suit was not maintainable in the absence of filing of inventory proceedings. In reply, it has been submitted by Mr. J. E. Coelho Pereira, learned Senior Counsel that in the proceedings of inventory complicated facts are not gone into inasmuch as the inventory proceedings in this case were filed subsequent to the filing of the civil suit. This submission of Mr. Lotlikar, has been rightly dealt with by the learned Trial Court and rejected. The suit was not for the partition of the estate of deceased Arjun Ganesh Ghatwal after his death but was a suit to account for the monies received by the defendant No. 1 pursuant to the powers of attorney first executed by the said Arjun Ganesh Ghatwal and after his death by the plaintiff Nos. 1, 2 and 3, which account defendant No. 1 was bound to render to the plaintiffs upon the death of said Arjun Ganesh Ghatwal and subsequently to the plaintiff Nos. 1, 2 and 3 after the revocation of the power of attorney by them. In our view, this submission of Mr. Lotlikar also deserves to be rejected.

18. Next, it has been submitted by Mr. Lotlikar, that in case the suit is for accounts from defendant No. 1 for monies received by him, then the same was not maintainable against defendant No. 2 who was the wife of defendant No. 1. This submission also deserves to be rejected, partly. Although, defendant No. 2 filed a written statement alongwith defendant No. 1, defendant No. 2 did not take such plea in her written statement. It has been pointed out by the learned Trial Court that the monies received by defendant No. 1 from the Special Land Acquisition Officer was invested by defendant No. 1 in the Joint Accounts of defendant No. 1 and defendant No. 2 and that being the position, the defendant No. 2 would certainly be liable to pay to the plaintiffs to the extent she has received the said monies or other assets which the defendant No. 1 was entitled to account for.

19. Lastly, it has been submitted by Mr. Lotlikar that the suit was for rendition of accounts but the learned Trial Court failed to take note of the fact that the defendant No. 1 was acting as the head of the family and overlooked the fact that all were staying together and for that matter the defendant No. 1 might have spent substantial amount for the maintenance of the family. This submission also deserves to be rejected because it was not the plea of the defendants that any of the amounts received by the defendant No. 1 pursuant to the power of attorney executed either by Arjun Ganesh Ghatwal or for that matter plaintiff Nos. 1, 2 and 3 was spent by defendant No. 1 towards the maintenance of the family. It is well settled proposition of law that no amount of proof can be looked into to support a plea which is not taken. The defendant No. 1 in this case had taken a specific plea that the amount received by him towards 80% of compensation was either paid by him to the said Arjun Ganesh Ghatwal who distributed the same as per his wish or as per his directions the amount was withdrawn and paid to him, during his life time, and, as far as the balance of 20% of compensation was concerned, it was spent by him for construction of house/s. These pleas have been rightly found as disproved by the learned Trial Court. Infact, the learned Trial Court has accepted that an amount of Rs. 2,00,000/- as stated by the plaintiffs must have been spent by the defendants for construction of the said house.

20. As far as the plea of limitation is concerned, the learned Trial Court has rightly concluded that the suit was governed by Article 26 of the Limitation Act, 1963 and that the period of 3 years had not lapsed from 12.7.94 when the said Arjun Ganesh Ghatwal died or from 21.11.96 when the second power of attorney was revoked, the suit having been filed on 27.3.97.

21. In view of the above, we find that there is no merit in this appeal and consequently the same is hereby dismissed with costs by the defendants, throughout.