High Court Kerala High Court

M/S.Kunnathu Distributors vs Poulose.A.D on 11 November, 2010

Kerala High Court
M/S.Kunnathu Distributors vs Poulose.A.D on 11 November, 2010
       

  

  

 
 
  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.
                 ...........................................
                     R.F.A.NO.536 OF 2008
                 .............................................
         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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R.F.A.NO.536 OF 2008

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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R.F.A.NO.536 OF 2008

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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R.F.A.NO.536 OF 2008

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R.F.A.NO.536 OF 2008

M.N. KRISHNAN, J.

…………………………………….
A.S.NO.389 OF 2001
………………………………………
11th day of November, 2010.

J U D G M E N T