Delhi District Court
Col. (Retd.) Dalip Singh Sachar vs M/S Maakarni Agro Pharma Pvt. Ltd on 23 March, 2015
IN THE COURT OF JAGDISH KUMAR
ADJ-06 (WEST): DELHI
Suit No. : 30/14
Unique Case ID No : 02401C0311812003
In the matter of:
Col. (Retd.) Dalip Singh Sachar
S/o Dula Singh
R/o 47, Phase 3-B-1
SAS Nagar, Mohali - 160 059
District Ropar, Punjab ... Plaintiff
Vs
M/s Maakarni Agro Pharma Pvt. Ltd.
Formerly known as M/s Maa Karni Coal
Carriers (P) Ltd.
C-75, Eden Towers
Plot no. 20, Sector 5
Dwarka, New Delhi - 110075 ... Defendant
Date of institution of the Suit : 14.01.1997
Date of arguments : 16.03.2015
Date of decision : 23.03.2015
JUDGMENT :-
1. The defendant is a Private Limited Company incorporated on 10.01.1995 under the Companies Act, 1956 having its registered office at New Delhi.
CS No. : 30/14 Page 1/242. The Major General Pramod Chander Puri, Brigadier Fateh Singh Yadav and plaintiff are its First Directors as per Memorandum and Articles of Association of the defendant company.
3. The plaintiff is the owner of two tipping trucks bearing no.
MPB-2415 and MPB-2416. As per clause 48, 69 and 70 of Article of Association the plaintiff has entered into an agreement with defendant with respect to employment of his two tipping trucks. The original agreement are in power and possession of the defendant company. The agreement was for a period of 5 years. The Director General Resettlement has issued guidelines on formation and running of ex- servicemen Coal Transport Companies / Co-operatives. The plaintiff alleged that since the date of entering into agreement with the defendant company by the plaintiff, the defendant company has failed to render any account in respect of two tipping trucks of the plaintiff. Similarly, the defendant has also failed to make payment to the plaintiff in respect of these two trucks after making the deduction in terms of the clauses of the proforma agreement, despite repeated requests and demands as made by the plaintiff vide letter dated 27.12.1995, 24.02.1996, 09.04.1996 and 03.05.1996.
4. On 24.05.1996, the plaintiff requested the defendant with reference to his earlier correspondence to expedite the details of account. The plaintiff has also requested the defendant to furnish the business account of his tipping trucks besides other information sought therein. Vide letter dated 30.07.1996, the plaintiff had requested the defendant to furnish the copy of balance sheet besides other things which he required as one of the Directors of the CS No. : 30/14 Page 2/24 Company. A reminder was also sent to the defendant vide letter dated 06.08.1996. The plaintiff has also claimed the Form 16A regarding Income Tax Deducted at the Source of Salary as a Director.
5. Vide letter dated 21.08.1996, plaintiff has again requested the Chartered Accountant of the Company to send copy of the balance sheet etc. as same were required by him for filing his Income Tax return. Vide letter dated 09.09.1996, the plaintiff has again requested the defendant to supply copies of the documents as mentioned in the previous letters.
6. Vide letter dated 25.09.1996, the plaintiff had made a complaint to the Director General Resettlement that he was not shown the accounts of the company nor the account of his tipping trucks by the defendant.
7. Vide letter dated 06.11.1996, the plaintiff has pointed out to the defendant company about the non-release of truck owner dues/ earning besides other things as mentioned therein. The plaintiff again wrote a letter on 16.11.1996 to the defendant for the payment of the credits shown in schedule - 8 of balance sheet dated 14.10.1996 in respect of earning of Tipper Trucks.
8. Vide letter dated 27.11.1996, the plaintiff has again called upon the defendant to pay a sum of Rs. 8 Lac together with interest @ 24% per annum in respect of two tipping trucks for the period from August, 1995 to 30th November, 1996. Vide letter dated 27.11.1996, a reminder was sent to the defendant.
CS No. : 30/14 Page 3/249. The plaintiff further stated that his claim is also fortified from the balance sheet as on 31.03.1996 as prepared by auditors of the defendant company. Till 31.03.1996, the income from two tipping trucks of the plaintiff will work out to Rs. 8,64,730/- for the period from August, 1995 to 31.03.1996 i.e. eight months. Taking the same as a guide for minimum income for the two tipping trucks of the plaintiff for a period of another Eight months would be Rs. 8,64,730/- till 30.11.1996.
10. The plaintiff further stated that if even 50% of the said income is allowed to be deducted for running the two vehicles and their maintenance including the payment of bank installments and interest thereon even then the plaintiff will be entitled to more than Rs. 8 Lacs on account of the two tipping trucks for the period from August, 1995 till 30.11.1996. The plaintiff alleged that defendant has not paid a single penny till date on account of his two tipping trucks since August, 1995. The plaintiff also alleged that the defendant has also not rendered any account of the income from two tipping trucks since August, 1995 till date, despite repeated requests and demands being made by him. The plaintiff also alleged that defendant has also failed to furnish Form 16A on account of income deducted at source. The plaintiff alleged that defendant has violated the mandatory instructions of Director General Resettlement by not giving the account to him of his two tipping trucks. The plaintiff further stated that the agreement dated 12.06.1995 between the Bombay Mercantile Bank Limited and the plaintiff also provides that the defendant will furnish balance sheet, profit and loss account and Income Tax Assessment Orders. The CS No. : 30/14 Page 4/24 plaintiff alleged that defendant has been continuously utilizing the two tipping trucks of the plaintiff fully and has been earning a lot of money there from. The plaintiff stated that plaintiff is unable to work out the actual amount due to him from the defendant till proper accounts are rendered by the defendant of all the earnings of the said two tipping trucks.
11. The plaintiff stated that he is expecting a sum of more than Rs.
8 Lacs due to him on account of income of his two tipping trucks for the period from August, 1995 to 30.11.1996 and about Rs. 25,000/- for the month of December, 1996. The plaintiff further stated that he is entitled for interest @ 24% P.A. on the amounts which will fall due till its realization. The plaintiff further stated that he is also entitled for income of the two tipping trucks for pendente lite and future period till the date of final decree on the basis of true and correct accounts being rendered by the defendant.
12. Summons of the suit were issued to the defendant. The defendant had put his appearance and filed a detailed written statement. The defendant had took preliminary objection that plaintiff has concealed the following material facts from the court :
(i) In a meeting of Board of Directors of the defendant company held on 25.04.1996, the economic profile of the company including the performance of the tipper trucks was discussed at length. It was also highlighted that despite the fact that the rate contract had not been finalized by the principal employers of the company, the company had been able to repay the installments in respect of tipper trucks. This meeting was attended by the plaintiff. After the said meeting, the CS No. : 30/14 Page 5/24 minutes recorded were circulated and were returned by the plaintiff without pointing out any discrepancy.
(ii) The notice of Annual General Meeting dated 14.10.1996, including the Director's report; profit and loss account for the period 1st January, 1995 to 31st March, 1996 and the balance sheet along with auditors report were sent to the plaintiff. This report included the account of the tipper trucks which the plaintiff alleges to belong to him.
The Annual General Meeting was attended by the plaintiff on 2nd November, 1996. All queries raised by the plaintiff including the tipper trucks, were explained to him to his satisfaction. The accounts relating to tipper trucks were also explained to him and it was further brought to his notice that in actual fact, the tipper trucks were in debit and as such no amount was payable till the rates were finalized and all arrears received. As an afterthought with obvious malafide intentions and oblique motives, the plaintiff commenced to rake up matters. It is also pertinent to state at this juncture that there are others who own sixteen tipper trucks. No other person has raised any issue.
(iii) By his own letter dated 15.11.1996, addressed to the defendant, the plaintiff raised a specific claim of Rs. 1,00,259/- up to 31.03.1996, based on schedule 8 of the Audited Balance Sheet. This communication was duly replied by the defendant company by its letter dated 03.12.1996. The state of accounting of the tipper trucks was again explained to the plaintiff. It was again explained to the plaintiff that in real terms, the account would show a debit of Rs. 1,59,635/-. The plaintiff was also sent detailed accounts of two tipper trucks in question by the Chartered Accountant of the company.
(iv) The plaintiff has been arbitrarily raising figures on his own whims and fancies and based on his wild imagination.
CS No. : 30/14 Page 6/2413. The defendant has also took the preliminary objection that plaintiff has not invested the single penny and plaintiff desires to reap the fruits of the labour and investments of others.
14. The defendant alleged that through present suit the plaintiff with ulterior motives is attempting illegally to extract money from the defendant company in order to service his personal loan and the amounts admittedly payable by him (plaintiff) to Major General (Retd.) P. C. Puri. The defendant further alleged that plaintiff has been malafidely adopting various pressure tactics and has even gone to the extent of filing an absolutely malafide proceeding before the Company Law Board.
15. While replying on merits the defendant has admitted that Major General (Retd.) P. C. Puri and Brigadier (Retd.) F. S. Yadav and plaintiff were the first Directors of the defendant company. However, plaintiff has ceased to be Director of the defendant company. The defendant further contended that the margin money for the said two trucks was deposited with the concerned bank with the money given on loan to the plaintiff by Major General (Retd.) P. C. Puri. The said two trucks were hypothecated with the bank. The loans for the purchase of the said two trucks is still outstanding. The said two trucks were financed through DGR, BMC, BL Scheme for ex-servicemen formulated by the DGR.
16. It is further stated by the defendant that as a pre-requisite to benefit from the said schemes, the ex-servicemen were required to CS No. : 30/14 Page 7/24 execute an agreement. The original agreement is with the Bombay Mercantile Bank and further contended that original agreement is not with them. The defendant further contended that plaintiff was periodically informed of the true state of the two tipper trucks and has also been rendered audited accounts including the audited accounts up to 31.03.1996. These were approved at the Annual General Meeting held on 02.11.1996. The accounts were also specifically explained to the plaintiff verbally and in writing including by a letter dated 03.12.1996. The defendant further alleged that plaintiff has not made enough effort to supervise the functioning of the two tipper trucks. The plaintiff was also well aware of the maintenance of the accounts at the site. In fact he had earlier indicated his intention to visit the site on 24.06.1996. He failed to turn up. He did not indicate any other date. It is further submitted that during the meetings of the Board of Directors (till the plaintiff remained the Director) the general performance of the company and its economic profile were discussed along with individual performance of the two tipper trucks that are claimed to be owned by the plaintiff.
17. The defendant further contended that the difficulty being faced at the time due to non finalization of the rates to be paid by the South Eastern Coalfields Limited was also discussed at length and was well within the knowledge of the plaintiff. Since the payments were being received at the provisional rates from principal employers namely South Eastern Coalfields Limited, the exact state of account of the individual tipper could not be arrived at. It is further stated by the defendant that there were no credits available after meeting the obligatory expenses and hence no payment could be made to the CS No. : 30/14 Page 8/24 plaintiff. The plaintiff has conveniently concealed the material facts that the loan of the said tipper truck is to be serviced, the running expenses of the tipper truck are also to be met. The defendant further stated that plaintiff was fully aware that the company was facing difficulty at the time in fulfilling its obligations in repaying the loan installments to the bank in respect of individual tipper trucks because of non finalization of rates for transportation and the commitment given by the company to the bank to repay the installment on behalf of the individuals.
18. The defendant stated that plaintiff was fully aware of the account and in any event the accounts were rendered to him. The defendant further contended that a notice dated 08.08.1996 has been issued for a meeting of Board of Directors to be held on 29.08.1996. Similarly, another notice had been issued on 30.08.1996, for a meeting of Board of Directors to be held on 23.09.1996. The plaintiff had owed a large sum of money to another Director namely Major General (Retd.) P. C. Puri. The issue of repayment of said loan by the plaintiff came up at the Board Meetings. The plaintiff had been avoiding to attend the Board meetings. It is obvious that plaintiff was treating the company as synonymous with the said other Directors and was indulging in creating correspondence with the intention to harass and blackmail the company to extract personal advantage. The defendant stated that the communication addressed to the Director General Resettlement were malafide which were with ulterior motives.
19. The defendant further contended that the plaintiff had been explained the status of accounts during the Annual General Meeting CS No. : 30/14 Page 9/24 held on 02.11.1996. The communication addressed by the plaintiff was also duly replied by letter dated 03.12.1996. On 03.12.1996 the account was running in debt and nothing to have been paid. These facts were well within the knowledge of plaintiff. The defendant has denied the alleged amount of Rs. 8 Lacs as well as alleged amount of Rs. 8,64,730/- was due or payable to the plaintiff and defendant stated that the alleged figures arrived at by the plaintiff are based on his wild imagination and for obvious ulterior reasons. The defendant stated that to the knowledge of plaintiff the alleged figures are totally fictitious based on audited balance sheet presented in the Annual General Meeting held on 02.11.1996. The account had shown a balance of Rs. 1,00,259/- as a result of the accounting policy. The actual state of account has been explained to the plaintiff in the meeting on 02.11.1996 which was followed by the letter dated 03.12.1996. The defendant further contended that plaintiff has deliberately misquoted the details.
20. The gross income of two tipper trucks for the period from 07.08.1995 to 31.03.1996 had been as Rs. 8,70,998/-. There was a debit balance in real terms which was explained to the plaintiff. The defendants contended that the plaintiff has claimed an amount of Rs. 1,00,259/- in his letter dated 15.11.96, and then has illegally and arbitrarily for the obvious malafide reasons hiked up the alleged claim to Rs. 4 lac per tipper trucks within 15 days.
21. The defendant further contended that plaintiff is fully aware that as per the agreement executed by him and undertaking given by the company, the bank has a primary right over the income generated by CS No. : 30/14 Page 10/24 the tippers towards the payment of loan installments. The plaintiff has been regularly visiting the bank and inspecting his accounts. The Company has paid the following amounts up to 10.01.1997 towards the payment of loan and installments 1995-96 1996-1997 LOAN Rs. 1,58,000.00 Rs.2,16,000.00 INTEREST Rs. 84,870.00 Rs.1,44,711.00 Total Rs. 2,42,870.00 Rs.3,60,731.00 Grand Total : Rs. 6,03,601.00
22. The defendant further stated that plaintiff was required to supervise the functioning of the tipper trucks at the site and not sitting in comfort of his arm chair. Despite his intimations to visit the site he failed to turn up. The plaintiff was obviously and deliberately avoiding facing the other directors since he had willfully failed to meet his obligations or repaying of his loan and interest accrued thereon to the other said Directors. The defendant submitted that defendant company has been paying the loan of installments and the interest due to the bank despite the fact that the account of tipper truck was running in debit. The defendant has also denied the rate of interest as 24% p.a. as no alleged amount is due to the plaintiff. The defendant has denied all other allegations as leveled by the plaintiff against the defendant and prayed for dismissal of the suit.
23. The plaintiff has filed replication denying the contents of the CS No. : 30/14 Page 11/24 written statement and reiterating those as made in the plaint.
24. On the pleadings of the parties, the following issues were framed on 12.07.1999
1. Whether the plaintiff is entitled to rendition of accounts? OPP
2. To what amount, if any, is the plaintiff entitled to recover from the defendant? OPP
3. Whether the plaintiff is entitled to interest if so, at what rate and on what amount? OPP
4. Relief.
25. EVIDENCE Sh. M. V. Alagawadi examined as PW1. He relied upon the attested copy of guidelines for running Ex-Servicemen Coal Transport Companies as Ex. PW1/1, attested copy of revised clauses to be incorporated in the memorandum of articles of Association as Ex. PW1/2, the attested photocopies of half yearly and yearly returns in respect of the defendant company for the year 1996 and for the half year 2001 as Ex. PW1/3 to Ex. PW1/16 and Ex. PW1/18, the attested copy of letter dated 25.09.96 is Ex. PW1/17.
26. Plaintiff has examined Sh. Rehmat Ali as PW2. He relied upon the certified copy of letter dated 12.06.1995 as Ex. PW2/1. Certified copy of agreement and loan application as Ex. PW2/2 and Ex. PW2/3. The certified copy of project report prepared by the chartered CS No. : 30/14 Page 12/24 accountants as Ex. PW2/4, certified copy of letter dated 04.05.1995 as Ex. PW2/5. Certified copy of affidavit of Major General (Retd.) P. C. Puri as Ex. PW2/6, certified copy of account statement of account no. 13761 as on 30.09.1995 as Ex. PW2/7, certified copy of another account statement of account no. 13592 as on 31.10.1995 as Ex. PW2/8, certified copy of invoice no. 172 and 173 dated 27.06.1995 are Ex. PW2/9, certified copies of receipts of G. S. Engineering Works Transport Nagar as Ex. PW2/9A to Ex. PW2/10.
27. The plaintiff has examined himself as PW3. PW3 has relied upon the copy of guidelines and instructions issued by Director General of Re-Settlement as Ex. P1, A copy of memorandum of articles of Association as Ex. P2, copy of proforma agreement Ex. P3, office copies of the letters dated 27.12.95, 24.02.96, 09.04.96, 24.05.96, 06.07.96, 30.07.96, 06.08.96, 09.09.96, 25.09.96 and 27.11.96 are Ex. P4 to P13, copy of the audited balance sheet dated 14.10.1996 as on 31.03.1996 as Ex. P14.
28. The defendant examined Major General (Retd.) P. C. Puri as DW-1 in its defence.
29. I have heard Ld. Counsel for plaintiff and Ld. Counsel for defendant and given my thoughtful consideration to the submission made by them. I have also carefully considered the material available on record.
30. My issue wise findings are as under:-
CS No. : 30/14 Page 13/24 ISSUE NO. 1 & 21. Whether the plaintiff is entitled to rendition of accounts? OPP
2. To what amount, if any, is the plaintiff entitled to recover from the defendant? OPP Both these issues are taken up together being interconnected.
As finding on one issue is having bearing upon the finding of another issue and vice-versa. The onus to prove these issues are upon the plaintiff.
31. The law is settled where a party has right to file a suit for rendition of accounts. The Supreme Court, while noting that the right to claim rendition of accounts is an unusual form of relief granted only in certain specific cases and to be claimed when the relationship between the parties is such that the rendition of accounts is the only relief which will enable the plaintiff to satisfactorily assert his legal right, has also noted that even where there is no specific provision for rendition of accounts, Courts have recognized an equitable right to claim rendition of accounts. The Supreme Court summarized among other things that a suit for rendition of accounts can be maintained only if a person suing has a right to receive an account from the defendant, which can be claimed in equity when the relationship is such that rendition of accounts is the only relief which will enable the person seeking account to satisfactorily assert his legal right. Though such a right cannot be claimed as a matter of convenience or on the ground of hardship or on the ground that the person suing did not know the exact amount due to him, the Apex Court in effect and substance recognized the maintainability of such a suit where there may be special circumstances rendering it equitable that the principal CS No. : 30/14 Page 14/24 should account to the agent. It also noted with reference to an earlier decision that the provisions of the Contract Act are not exhaustive in this regard. Emphasis can supplied upon case of Hon'ble Supreme Court of India titled as K. C. Skaria Vs. Government of State of Kerala & Anrs. Appeal (Civil) 6885-86/2003 decided on 10.01.2006.
32. To summaries, a suit for rendition of accounts can be maintained only if a person suing has a right to receive an account from the defendant. Such a right can either be (a) created or recognized under a statute; or (b) based on the fiduciary relationship between the parties as in the case of a beneficiary and a trustee; or A(c) claimed in equity when the relation is such that rendition of accounts is the only relief which will enable the person seeking account to satisfactorily assert his legal right. Such a right to seek accounts cannot be claimed as a matter of convenience or on the ground of hardship or on the ground that the person suing did not know the exact amount due to him, as that will open the floodgates for converting several types of money claims into suits for accounts, to avoid payment of court fee at the time of institution. Emphasis can be supplied on the judgment of Hon'ble High Court of Delhi in case titled as Hari Gokal Jewelers Vs. Satish Kapoor RFA No. 161/2005 decided on 27.04.2006.
33. So, in view of the settled proposition of law a rendition of account can be claimed only when no other relief is available to the person seeking rendition of account. Here, in the present suit, it is admitted fact between the parties that there is an agreement, Ex. PW1/2, i.e. employment of two tipping trucks of plaintiff with the CS No. : 30/14 Page 15/24 defendant company. The formation of the defendant company in not in dispute. The name of the defendant company from M/s Maa Karani Coal Carriers has been substituted by the name M/s Maa Karni Agro Pharma Limited by order dated 22.01.2008. It has come on record that plaintiff is seeking rendition of account of two tipper trucks being engaged by him with the defendant company for transportation of materials in which defendant company used to deal.
34. The question before this Court is whether plaintiff is having only relief of rendition of account from the defendant regarding the income of his two tipper trucks having number MPB-2415 and MPB-2416 or plaintiff is having any other relief against the defendant. Though, both the parties have placed on record a number of documents. Hence, I am considering those documents which are necessary to adjudicate the dispute between the parties as whether plaintiff is having only the relief of rendition/ tender of account and consequently a relief for recovery of due amount. The plaintiff has asserted that he has demanded the account from the defendant and also requested for issuance of TDS Form 16 A with respect to the income being due to him from defendant on account of income of his two tipper trucks. And plaintiff alleged that same has not been provided by the defendant to him. The plaintiff has deposed on the same lines in his examination in chief. But when plaintiff (PW3) was cross examined he has admitted the writing of letter dated 13.02.1997 (Ex. PW3/D1). On perusal of this letter it reveals that this letter was written by the plaintiff to the Chartered accountant of the defendant i.e. M/s Chandabhoy and Jossoobhoy. In this letter it has been written by the plaintiff as 'Dear Sir, Reference your letter dated 03.01.1997 received on 10.02.1997.
CS No. : 30/14 Page 16/24The summary sent by you is unauthenticated to meet the TDS requirements. It is requested that the certified true copies as per records separately for each vehicle be provided at an early date please. Thanking you Yours Faithfully D. S. Sacher.'
35. The letter Ex. PW3/D1 in itself proves that the account was rendered to the plaintiff by the defendant company. But this account was not accepted by the plaintiff because same was not authenticated by the Managing Director of the defendant. The plaintiff during his cross examination has clarified the word 'unauthenticated' as the documents has to be signed by the Managing Director of the defendant company. But plaintiff has been unable to brought on my notice that Chartered Accountant was not competent to furnish the account to him. The Chartered Accountant works as accountant of the Company. He was competent to furnish the account. The document Ex. PW3/D1 proves that the account with respect to tipper trucks of the plaintiff was provided to him. And document Ex. PW3/D3 , Ex. PW3/D4, Ex. PW3/D5 (colly.) proves that the TDS Forms 16 A were issued to the plaintiff for the period from 1996 -1997, 1997-1998, 1998-1999, 1999-2000 being issued on the basis of deduction of tax from the income of his two tipper trucks.
36. The cross examination of plaintiff in itself also proves that he was having knowledge of the account with respect to his tipper trucks. The relevant evidence of plaintiff are reproduced ; ' The plaintiff has also admitted in his cross examination as : 'I have received photocopies of the TDS form 16 A up to 26.01.2000 but through the income tax department. Vol. Original are yet to be received by me.' CS No. : 30/14 Page 17/24 'Since I have not received such forms from the company I am not able to tell from which source income tax department has received it and then supplied to me. I pay my income tax in Chandigarh. I do not remember at this moment the Ward number, I will disclose it on the next date.' The plaintiff Dalip Singh Sacher further admitted in his cross examination as 'I have received the attested photocopy of the TDS from the Income tax Authority but I have not received the originals. I have already filed the same on record. It is correct that Ex. PW3/D4 (5 pages) shows gross income of my tipper trucks. I have no account of the expenses incurred by me on the tipper trucks. It is correct that the expenses were borne by the defendant. It is correct that record of expenses were maintained at Bisrampur (MP) by the defendant. ****. It is correct that the company was responsible for maintenance and running of all the trucks.' A suggestion has also been put to the plaintiff while he was under cross examination, 'It is wrong to suggest that company has sent me the accounts before I filed the suit. It is wrong to suggest that in 1996 the CA of the Company has sent the copy of the account to me Ex. PW3/D1. It is correct that I have mentioned in my letter dated 03.01.1997 and same is not with me. It is wrong to suggest that the CA has sent the account along with this letter. It is further wrong to suggest that I have received the copies of the account from the CA but same was not accepted by me as copies were not properly authenticated by the CA. It is correct that I have mentioned the CS No. : 30/14 Page 18/24 summary in my letter and same is not available with me. By 'authentication' I mean that document should have been signed by the Managing Director of the company.'
37. Moreover, there is also other evidence on record against the plaintiff such as the document Ex. DW1/P1 has been placed on record in which the quantity of HSD Diesel drawn by the tipper trucks including the tipper trucks of plaintiff has been described. But plaintiff has been unable to show any discrepancy in this document. Document Ex. DW1/P2 to DW1/P5 are the documents relating to the transportation of Coal by the tippers. But the plaintiff has been unable to bring on record that the income of his tipper trucks were not shown in his income accounts while issuing the TDS certificates. The TDS Certificates Ex. PW3/D3, Ex. PW3/D4 and Ex. PW3/D5 could have been filed by the plaintiff himself along with his Income Tax Return with the Income Tax Department. These TDS forms pertains to the year 1996-1997, 1997-1998, 1999-2000. These documents are pertaining to the tax deducted by the defendant company on the income of the plaintiff from two tipper trucks. It means that these TDS form could have been filed by the plaintiff along with his individual income tax return because it has come on record that these documents have been taken by the plaintiff from Income Tax Department. It is not the plea of the plaintiff in the entire pleading that these documents have not been filed by him along with his income tax return. It proves the defence of the defendant that TDS certificates were issued to the plaintiff. A document Ex. PW3/D2 has also been placed on record which shows that the said letter was written by the defendant to the plaintiff in reference to letter dated 15.11.1996. In this CS No. : 30/14 Page 19/24 document the account till March 1996 regarding the tipper trucks has been furnished by the defendant to the plaintiff.
38. On the other hand, when DW1 Maj. Gen. (Retd.) P. C. Puri was cross examined on 05.03.2012, a question was put to him Q: Did you obtain any signature or acknowledgement from the driver to whom the monthly accounts was shown?
Ans. The DW 1 has answered to the question as 'every driver signed for every issue of HSD / Lubricants/ spare parts / repairs carried out to the individual tipper trucks and that voucher formed part of the accounts. Since every entry had been signed by the drivers there was no requirement to get the monthly account signed.
The witness DW1 further deposed 'The company is in possession of the record stated in answer to the above question. I am the Managing Director of the plaintiff company (it should be defendant company but it seems that it has been written due to typographical mistake). Therefore, I am in control and possession of its record. (Vol. These records have already been scrutinized by Director General Re- settlement on the order of Hon'ble High court of Delhi and the report submitted by the Director General is already on the record of the case.). I have no objection to produce the record pertaining to the plaintiff.' By giving this answer the further cross examination of the DW1 was deferred on the request of Ld. Counsel for plaintiff as that record has to be produced by DW1. But on the very next day i.e. on 06.03.2012 no questions were put to the witness on those documents by the plaintiff despite summoning of these documents. Which shows that plaintiff is not agitating the account in real sense.
CS No. : 30/14 Page 20/2439. Also, there is one another aspect in the present suit which is that the plaintiff himself is one of Managing Director of the defendant company. If, plaintiff is one of the Managing Director then certainly he would used to take participate in the AGM of defendant company and he has also admitted that he has attended the AGM on 02.11.1996 through document dated 06.11.1996 written by him to the defendant. The plaintiff could have an opportunity in the AGM to raise the issues regarding malfunctioning of defendant company in maintaining the record of the defendant company regarding the asset and liabilities of the defendant company. If there was any malfunctioning of the defendant company the plaintiff would have an opportunity to approach the Company Law Board and to make the complaint of the defendant company but plaintiff is silent on this aspect in the pleading. The plaintiff is not seeking any rendition of account of the defendant company but seeking rendition of account of his two tipper trucks only.
40. The plaintiff has also not rebutted the assertion of the defendant as contended in the written statement and as deposed by the DW1 that plaintiff has attended the AGM Meeting of the defendant company on 02.11.1996. In that AGM the business of the defendant company was discussed including the income from tipper trucks of the plaintiff.
41. Furthermore, the plaintiff has stated in examination in chief in para 18 that audited balance sheet dated 14.10.1996 as on 31.03.1996, circulated by the defendant to its share holders, I learnt that a sum of Rs. 47,56,156/- was shown in the profit / loss account as transportation charges paid to the truck owners but no details of the CS No. : 30/14 Page 21/24 recipients were given. The plaintiff further stated that in the said balance sheet he was shown as creditor to the extent of Rs. 1,00,259/-. The plaintiff has also deposed in his affidavit that defendant has disclosed before Company Law Board that defendant has received a sum of Rs. 22,29,984/- as arrear for the period from 07.08.1995 to November, 1996. It is also deposed in his examination in chief by the plaintiff that a sum of Rs. 12,44,744/- was received by the defendant in the January, 1997. It has also come on record through the evidence of plaintiff that he has not visited the site for about four years to inspect the record and his tipper trucks were being driven by the drivers who used to inspect the account.
42. So far as any omission to the guidelines of Director General of Resettlement is concerned it is between the defendant company and Director General of Resettlement. The plaintiff has filed the present suit in his independent capacity being owner of two tipper trucks. All these facts show that plaintiff was having knowledge of account.
43. So far as the plea of the Ld. Counsel for plaintiff and an averment as made in the plaint that the income from the tipper trucks of the plaintiff goes in the pockets of the Managing Director of the defendant company is concerned. For the sake of arguments, if this plea is admitted to be correct then definitely the Managing Director would not have maintained any account for that amount. The plaintiff as well as this Court would not be in a position to get procure that account. If that will be the situation then there is no magic stick with the court to direct the defendant to produce that unaccounted account. Particularly, where plaintiff is unable to bring that record on record CS No. : 30/14 Page 22/24 from the company where his tipper trucks were employed by the defendant company.
44. So, the evidence that has come on record and proved on record shows that plaintiff was having knowledge of the account. The plaintiff need not the helping hand of the Court to render the account. In view of the settled preposition of law the suit for rendition of account is not maintainable where a party is having another remedy. The plaintiff was having a cause of action, if any, to file a suit for recovery. The account up to March 1996 has been furnished to the plaintiff vide document Ex. PW3/D2. So, I am of the view that plaintiff is not entitled for rendition of account. Consequently, the plaintiff is also not entitled for second relief to get appoint a Local Commissioner to ascertain the amount due to him, if any.
The issues are disposed of accordingly in favour of defendant and against the plaintiff.
45. ISSUE NO. 3Whether the plaintiff is entitled to interest if so, at what rate and on what amount? OPP The onus to prove this issue is on the plaintiff. Since the plaintiff has failed to prove the substantial relief being claimed by him through issue no. 1 & 2 then he is also not entitled for any interest. The issue is decided in favour of defendant and against the plaintiff.
46. RELIEF CS No. : 30/14 Page 23/24 In view of the above the suit of the plaintiff is dismissed. Parties to bear their own cost. The Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (JAGDISH KUMAR)
today i.e on 23.03.2015 ADJ-06 (WEST)/DELHI
TIS HAZARI COURTS
CS No. : 30/14 Page 24/24