IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 536 of 2008()
1. M/S.KUNNATHU DISTRIBUTORS, KOLENCHERY.
... Petitioner
2. M/S.KUNNATHU DISTRIBUTORS, PARTNERSHIP
3. K.P.JOHNY, AGED 46 YEARS, PARTNER,
Vs
1. POULOSE.A.D, AGED 55 YEARS,
... Respondent
For Petitioner :SRI.P.K.SAJEEV
For Respondent :SRI.SUNU P.JOHN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :11/11/2010
O R D E R
M.N. KRISHNAN, J.
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R.F.A.NO.536 OF 2008
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Dated this the 11th day of November, 2010.
J U D G M E N T
This appeal is preferred against the final decree
passed in O.S.No.266/1991 of the Additional Subordinate
Judge, North Paravur. The suit related to dissolution of
partnership and rendition of accounts. The trial court
passed a preliminary decree dissolving the firm and
relegating the question of profit and loss in the final decree
proceedings. Accordingly the plaintiff filed I.A.No.3335/1998
for passing final decree. The trial court appointed a
Commissioner and ultimately accepting the Commissioner’s
report, passed final decree directing the defendants to pay a
sum of Rs.20,174/= to the plaintiff as share of the profit. It
is against that decision, the defendants in the suit have
come up in appeal.
2. The learned counsel for the appellants would submit
that Exts.B1 to B64 were produced before the trial court,
but it was not produced before the Commissioner and
therefore, the Commissioner was not in a position to find out
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the profit and loss account properly. I had perused the
report of the Commissioner and the Commissioner’s report
also shows that it is not prepared strictly in accordance
with law. There are so many assumptions and even there is
an observation that since all the sales and purchases are
not shown in the account, the actual amount due to the
plaintiff is likely to be much more. The defendants would
contend that really the establishment was running at a
loss. But it has to be stated that the present appellants
namely the defendants in the suit were in management of
the affairs of the establishment. It was from their custody
the documents have come. So when a court appoints a
Commissioner for passing the final decree, unless the
parties supply the materials to the Commissioner and explain
to him, he may not be able to arrive at a correct decision.
The persons who are in management would be in a better
position to submit profit and loss account and when it is
done, it will be easy for the Commissioner to verify from the
documents on the basis of which it is prepared to find out
whether it is correct or not. So without resorting to such a
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methodology, the Commissioner as well as the parties have
created confusion in this case. Therefore the whole matter
requires re-consideration.
3. I am informed that the Commissioner who had
been appointed is no more. If he is no more, then it has
become inevitable to appoint another Commissioner to
prepare the profit and loss account and submit a report to
the court. For this purpose, in order to make the
Commissioner to prepare it properly, I direct the
appellants/defendants to file a profit and loss account before
the court or before the Commissioner and the
Commissioner can peruse the same and the plaintiff can
also submit his version and on scrutiny of the records the
Commissioner will be able to file an appropriate report
which will be helpful to the court in finally settling the
matter.
4. Therefore the final decree passed by the trial court is
set aside and the matter is remitted back to the trial court
with a direction to remit the Commissioner’s report and if
the Commissioner is not alive to issue, a fresh Commissioner,
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an experienced person to submit a fresh report. In order to
help the Commissioner, the appellants herein namely the
defendants are directed to furnish profit and loss account
based upon the documents they are relying. The plaintiff
can also point out the correctness or the mistake in the
profit and loss account submitted by the defendants and
thereafter on scrutiny of the materials, the Commissioner
can file a final report which can help the court to decide
the matter correctly. Needless to say, parties are also
permitted to adduce evidence in support of their respective
contentions. If it becomes necessary, let the court return
Exts.B1 to B64 to the defendants for the purpose of
preparation of the profit and loss account which will be
produced back as and when required by the court. Parties
are directed to appear before the trial court on 21.12.2010.
The order of remand shall not stand in the way of settlement
between the parties.
Disposed of accordingly.
M.N. KRISHNAN, JUDGE.
cl
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M.N. KRISHNAN, J.
…………………………………….
A.S.NO.389 OF 2001
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11th day of November, 2010.
J U D G M E N T