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Suit No.441 of 1969, decided on 5th November, 1983.

---O. XXVI, r.11--Commission for accounts--Report of--Court passing preliminary decree and appointing Commissioner for taking accounts from defendant in respect of sale-proceeds of bales of jute products sent to defendants by plaintiff and defendant required to submit account of expenses in respect of items mentioned in preliminary decree- Commissioner in his report simply relying on a typed copy of statement produced by defendant before him and remarking that statement is supported by evidence in form of vouchers, receipts and entries in books of account kept in normal course of business but showing nothing due and payable to plaintiff from defendant--None of -items mentioned in preliminary decree shown in statement which Commissioner made basis of his report--Report of Commissioner set aside in circumstances.

---O.XX, rr.16 & 17--Rendition of accounts--Defendant required to render accounts to plaintiff, forwarding a detailed accounts of dealing S up-to-date alongwith a bank draft in full and final settlement of dues of plaintiff--Plaintiff in their letter duly acknowledging receipt of statement of accounts sent by defendant but producing in evidence only letter and withholding statement of accounts--Defendants in their evidence succeeding to establish that statement of accounts produced by them was in fact copy of account sent to plaintiff--Defendants at no time held, rendered any accounts to plaintiff.

---O.XX, rr.16 & 17--Rendition of accounts--Plaintiff sending bonus vouchers for sale to defendant who acted as Commission agent for them--Bonus vouchers soul for an amount lesser than their face value- Defendant producing original sale note which plaintiff unable to rebut- Sale duly entered in books of accounts maintained by defendant it normal course of business--Sale of bonus vouchers for a sum less than face value, held, stood proved.

---S.186--Civil Procedure Code (V of 1908), O.XX, rr. 16 & 17--Agent, duty of--Defendants acting as commission agent for plaintiff and under terms of agency liable to render account for sale-proceeds of good; sent to him by plaintiff for sale--Defendant, held, not liable to account for a sum paid by plaintiffs for release of goods.

Muhammad Hanif for the Plaintiff.

G.M.Qureshi for the Defendants.

Dates of hearing: 18th to 20th October, 1983.

The preliminary decree in the suit was passed on 12-8-1980 and Mr.Zaheeruddin Khan, Advocate was appointed as the Commissioner for taking accounts. The Commissioner submitted his final report dated 10-11-1982, stating that nothing is due and payable to plaintiff by the defendants.

The plaintiff has filed objections to the above report contending that the Commissioner had no jurisdiction to hold that there is nothing due and payable by the defendants to the plaintiff as he was only directed by the Court to take the accounts. It is also contended that the report of Commissioner is based on misreading of evidence and does not reveal any basis for the conclusions. The learned counsel for the defendants on the other hand, contends that although the Commis sioner has not discussed the evidence produced by the parties before him, he is in a position to demonstrate with reference to evidence on record that the conclusions of the Commissioner are fully supported by the evidence produced by the parties before him. The Commissioner in his report has simply relied on a typed copy of statement (Y/7) produced by the defendants before him and remarked that the statement (Y/7) is supported by evidence in the form of vouchers, receipts and entries in the books of account kept in the normal course of business and therefore nothing is due and payable to the plaintiff by the defendants. The statement (Y/7) relied by the learned Commissioner only shows those amounts of rent, commission and bank interest which the defendants had shown in their income-tax returns filed in the years 1965 and 1966. The total amount under the heads shown in the statement (Y/7) works out to Rs.57,247.22 only and failed to understand as to how on the basis of this statement (Y/7) the learned Commissioner reached the, conclusion that nothing was due and payable by the defendants to the plaintiff. The preliminary decree in the suit directed rendition of account; by the defendants in respect of sale-proceeds of 926 bales of jute products sent to defendants between 7-11-1964 and 9-4-1965, a sum of: Rs.1,10,540 advanced by the plaintiff to the defendant during the existence of agency agreement and the sale-proceeds of bonus vouchers of the face value of Rs.40,823. The defendants were also required to submit an account of expenses incurred by them on the consignment of 926 bales of jute products by way of godown rent, insurance premium, labour charges etc. and the amount of Commission earned by them @ 1%. None of the items mentioned in the preliminary decree are shown in the statement (Y/7) which formed the basis of the report of Commis sioner. I accordingly see no option but to set aside the report of Commissioner, dated 10-11-1982. After having set aside the report of Commissioner I anxiously considered that whether the case be sent back to the Commissioner for reconsideration or I should decide it finally myself. The learned counsel for the parties jointly requested that the amount due to plaintiff, if any, may be determined by the Court instead of sending it back to the Commissioner for determination. Keeping in view the fact that the suit is almost 14 years old and entire evidence relating to accounts has been produced by the parties I think it will only be appropriate, if I determine the amount due myself in the circumstances of the case. I have accordingly considered in detail the accounts and the evidence produced by the parties before the Commis sioner and my findings are as follows:----

The first item of the preliminary decree relates to the rendition of accounts in respect of sale-proceeds of 926 bales of jute products. The defendant admits having received the above goods. It is also admitted that the total invoice value of 926 bales comes to Rs.6,97,690 and as against that the total remittance made by the defendants to the plaintiffs works out to Rs.6,55,719.50 only. With regard to the shortfall of Rs.44,540 in the amount remitted to plaintiff as against the invoice value of the goods the explanation offered by the defendants is that in one of the invoices, the value of the goods was over invoiced by the plaintiff and therefore on the protest of defendants the same was reduced by the plaintiff by making cash payment of Rs.44,540 to the bank concerned and directing them to release the goods to defendants against payment of Rs,50,000 only as against the invoice value of Rs.94,540. The correspondence produced before the Commissioner shows that the defendants on 23-4-1965 vide Exh.P.51 complained about the over invoiced value of the goods at Rs.94,540 and requested the plaintiff to direct their bankers to release the same against payment of Rs.50,000 only. The plaintiff was again reminded by the defendants vide letter, dated 3-5-1965 (Exh. P-52) in this behalf. On 6-5-1965 vide Exh.P-53 Mr.S.I. Sethia of plaintiff wrote to the defendants that from copies of their letters he understood that the defendants wanted release of consignment against Rs.50,000 only and balance will be paid by the defendants after the goods were cleared. Thereafter the plaintiff sent to their bankers M/s. United Bank Ltd. Khulna, a cheque in the sum of Rs.44,540 and directed them to release the goods to defendants upon payment of Rs. 50,000 only vide Exh. P.54. The consignment was accordingly released to the defendants against payment of Rs.50,000 only. This controversy is however not of such significance as admittedly the defendants were not liable to pay to the plaintiff for the 926 bales of jute goods according to invoice value of goods; but under the agency agreement they were required to sell the same at the best available market price in Karachi, on behalf of plaintiff and were entitled to a commission of 1% on the actual sale price of the goods. The defendants were also entitled to charge godown rent, fire insurance charges, labour charges, and other incidental expenses. The above arrangement between the parties is fully reflected in paragraphs 2 to 5 of the plaint. The defendants .in this behalf have contended that the total sale-proceeds of the 926 bales of jute products realised by them comes to Rs.6,60,493.38 out of which they admittedly remitted to the plaintiff only a sum of Rs.6,55,719.50 which also included a sum of Rs.2,569,50 as bank commission and charges. The defendants have claimed a sum of Rs.91,477.49 on account of various expenses incurred on the consignment details whereof are as follows:----

In support of the above claim the defendants produced before the Commissioner a file containing copies of 19 bills allegedly sent to plaintiff between the period from 18-12-1964 to 30-3-1966, in which the sale-proceeds of all the 926 bales of jute goods amounting to Rs.6,60,493.38 and the expenses shown above are specifically mentioned. The learned counsel for the plaintiff contends that the defendants failed to prove before the Commissioner that these documents (19 bills) were sent to plaintiff or that at any time they rendered accounts in respect of these amounts to the plaintiff. The correspondence between the parties produced before the Commissioner, however, do show that the procedure followed by the parties was that the defendants after sale of goods used to report the sale-proceeds as well as the expenses incurred on them in a bill which was forwarded to plaintiff. In fact the documents produced by the plaintiff before the Commissioner contained two such bills dated 9-6-1868 and 17-7-1965 Exh.P.62 and P.68, respectively. Copies of these two bills are also available in the documents filed by the defendants before the commission in a file which contained all the 19 bills allegedly sent by the defendants to the plaintiff. I further find that all the amounts shown in the 19 bills refer to above are duly shown in the ledger maintained by the defendants in the normal course of business and were also shown in the statement of account marked "X/10' which the defendants had sent to the plaintiff but the plaintiff has denied receipt of same. The learned counsel for the plaintiff contends that the defendants has not succeeded in proving that the statement of account "X/10" was received by the Plaintiff. This contention of the learned counsel for the plaintiff is not correct. The letter dated 19-5-1966 (P.95) filed by the plaintiff shows that the defendants forwarded to plaintiff a detailed accounts of dealing up-to-date alongwith a bank draft in the sum of Rs.9,427/74 in full and final settlement of the dues of plaintiff. The plaintiff in their letter, dated 2-6-1966 (P.96) duly acknowledge receipt, of the statement of accounts sent by the defendants vide their letter, dated 19-5-1966 (P.95). The Plaintiff has however, produced in evidence before the Commissioner only the letter, dated 19-5-1966 but withheld the accounts submitted with this letter by the defendants, The defendants in their evidence has succeeded in establishing that account "X/10" produced by them is a copy of the account sent to plaintiff on 19-5-1966 with their letter Exh.P.95. In these circumstances. it cannot be said that the defendants at no time rendered any account to the plaintiff. The plaintiff in the correspondence at no time objected to the sale of the 926 bales of goods for Rs.6,60,493.38 or the amount of expenses claimed by the defendants as Rs.91,477.49. 1, therefore, hold that the defendants were liable to pay to plaintiff only a sum of Rs.6,60,493.38 on account of sale-proceeds of 926 bales of jute products and were entitled to receive from the plaintiff a sum of Rs.91,477.49 by way of commission, clearing and forwarding charges, godowns rent, insurance premium labour charges, cartage and Bank interest etc. on sales of 926 bales. The defendants remitted a sum of Rs.6,55,719-50 only to the plaintiff arid therefore they were entitled to receive from the plaintiff a sum of Rs.86,703-61 in connection with the sale transaction of 926 bales of jute products.

I will now take the; item of bonus voucher mentioned in the preliminary decree. It is an admitted position that the bonus vouchers of the face value of Rs.40,823 were sent to the defendants by the plaintiff for sale. The defendants contends that the bonus vounchers were sold for Rs.23,371.17. In support of this assertion the defendants have produced in evidence the original sale note issued by Kurban Ali and Merchants Ltd., dated 16-8-1965 showing that the bonus vouchers of the face value of Rs.40,823 was sold for Rs.23,371.17. The plaintiff has not been able to rebut this piece of evidence. Besides, this sale was duly entered in the books of accounts maintained by the defendants in the normal course of business and was also shown in the account "X/10" submitted by the defendant to the plaintiff on 19-5-1966. The plaintiff at no time challenged correctness of this sale by the defendants. I, therefore, hold that the bonus vouchers were sold for Rs.23,371.17. It is an admitted position that the plaintiff remitted a sum of Rs.1,10,540 from time to time which included a sum of Rs.44,540 sent by the plaintiff to their banker M/S. United Sank Limited Khulna, in connection with the release of a consignment of jute goods to defendants valued at Rs.94,540. Under the terms of agency agreement the defendants were liable to accounts for the sale-proceeds of the goods and accordingly they cannot be held liable to account for the sum of Rs.44,540 paid by the plaintiffs for release of goods. Therefore the cash amount received by the defendants from the plaintiff which the defendants are liable to account for comes to Rs.66,000 only. I have already held that the defendants were entitled to receive from the plaintiff a sum of Rs.86,703-61 in connection with the sale of 926 bales of jute products whereas the amount in the hands of defendants payable to plaintiff was Rs.89,371.17. The defendants therefore were still liable to pay to the plaintiff a sum of Rs.2,667.56. I may mention here that while going through the account I found that the defendants had credited in their ledger a sum of Rs.17,720-31 as export earning on the export of 150 bales of cotton goods in favour of plaintiff. This amount is also shown as payable to plaintiff. This amount is also shown as payable to plaintiff in the account "X/10" submitted by the defendants to plaintiff alongwith their letter P/95. No direction is given in the preliminary decree in respect of this amount. However, the learned counsel for the defendants very frankly conceded that the defendants are also liable to account for this amount. The defendants therefore still liable to account for a sum of Rs.20,387.87. The defendants admittedly remitted a sum of Rs.9,427.74 to the plaintiff alongwith their letter P.95 through a demand draft and after deducting this amount from Rs.20,387.85 the balance unaccounted for by the defendants comes to Rs.10,960.13 The learned counsel for the defendants claims that the defendants had paid a sum of Rs.6792 towards the travelling expenses of Mr.Sethia rind his family arid a sum of Rs.8126 and Rs.1809 as trvelling expenses of Mr.A.R. Qureshi and M/s. Mughal of defendants which they are entitled to deduct from the above amount. Although there are vouchers produced in evidence showing these expenses but the learned counsel for the defendants is unable to point out any authorisation from the plaintiff for these expenses. I, therefore, hold that the defendants have failed to account for a sum of Rs.10,960.13 which they are liable to pay to the plaintiff. In the preliminary decree the question of limitation and the liability of defendants 4 and 5 were left to be determined at the time of passing of final decree in the suit. The learned counsel for the defendants is unable to show that the suit is barrel by limitation. Similarly the learned counsel for the plaintiff is also unable to establish tree liability of defendants 4 and 5 to render accounts to them. Accordingly pass a final decree in the suit decreeing the suit of Plaintiff for Rs.10,960.13 against defendants 1 to 3 but in the circumstances of the case will make no order as to costs. The plaintiff will be entitled to interest on the above amount from the date of decree till the amount is paid.

M.Y.H Suit decreed.

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