IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 WP(C).No. 24200 of 2008(E) -------------------------- AGAINST THE ORDER IN IA.NO.2550/07 IN OS.285/2004 of PRL.SUB COURT, KOZHIKODE .................... PETITIONER: ------------------------- M/S. NEW ANAND SAGAR COLOUR MERCHANTS, KANNUR, REP.BY ITS MANAGING PARTNER- P.P. SATHYAPALAN. BY ADV. SRI.K.V.SOHAN SRI.K.BABU RESPONDENT: ------------------------- M/S. KERALA FOOT WEAR PRODUCTS, 32/2583, CALICUT TIMES COMPLEX, RAILWAY STATION LINK ROAD, CALICUT - 673 002. ADV. SRI.MANJERI SUNDERRAJ FOR R SMT.K.K.PREETHA FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 24200/08) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF THE PLAINT AS O.S.285/04 FILED BY THE PETITIONER BEFORE THE SUBORDINATE JUDGE'S COURT, KOZHIKODE DT. 25.6.2004. EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN O.S.285/04 DT. 21.10.04. EXT.P3: TRUE COPY OF THE APPLICATION NO. I.A.2550/07 IN O.S.NO.285/04 FILED BY THE PETITIONER BEFORE THE SUBORDINATE JUDGE'S COURT, KOZHIKODE, DT. 13.7.07. EXT.P4: TRUE COPY OF THE ORDER IN I.A.2550/07 IN O.S.NO.285/04 PASSED BY THE SUB JUDGE, KOZHIKODE, DT. 25.7.2007. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.24200 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 8th December, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. Call for the records connected with the case. 2. To issue a writ of certiorari or other appropriate writ or order quashing the order in Ext.P4 and grant leave production of the documents sought as per I.A.2550/2007. 2. Petitioner is the plaintiff in O.S.No.285 of 2004 on the file of the Sub Court, Kozhikode. Suit is for recovery of money, and the respondent is the defendant. Petitioner/plaintiff which is stated to be a firm, dealing with dye chemicals is alleged to have business transactions with the defendant firm running foot wear industry. The defendant purchased dye chemicals from the branch of the plaintiff firm and such transactions are reflected in the account maintained by the plaintiff, and in respect of the transactions the amount claimed under the suit is due was the case canvassed in the suit. The defendant in its written statement disputed the amount claimed contending supply of goods made by the plaintiff was not of good quality, and the claim made on the basis of the accounts is patently W.P.C.No.24200/08 - 2 - wrong without giving credit to the payments already made. Maintainability of the suit was also challenged by the defendant, among other contentions, raised in its written statement. With the plaint, the plaintiff had produced four documents and none of them was sufficient enough to substantiate the suit claim based on the entries recorded in the accounts maintained in respect of the transactions. Later, when the suit came up for trial, the petitioner/plaintiff moved an application for reception of additional documents to substantiate the suit claim. P3 is the copy of that application, which was moved along with 43 documents for receiving them in evidence. The application was objected to by the defendant. The learned Sub Judge, after hearing both sides, dismissed P3 application vide P4 order. Propriety and correctness of P4 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. P3 application has been moved by the plaintiff seeking leave of the court for receiving the documents produced belatedly invoking sub-rule (3) of Rule 14 of Order 7 of the Code of Civil Procedure. The learned Sub Judge taking note of the objections raised by the defendant and more particularly, W.P.C.No.24200/08 - 3 - the contentions raised in its written statement and placing emphasis in the decision rendered by this court in Abdul Khader v. Surburban Chit Funds (P) Ltd. (2006 KHC 232) declined to grant leave to receive the documents produced, and the application of the plaintiff was dismissed. 4. Perusing P4 order, I find other than making reference to Rule 14 of Order 7 of the Code of Civil Procedure and the nonproduction of the documents along with the plaint, it appears, what persuaded the court in declining leave to receive the documents belatedly produced was the contentions advanced by the defendant in its written statement challenging the maintainability of the suit. Challenge against the maintainability of the suit has to be determined after trial, and, at any rate, only after granting reasonable opportunity to the plaintiff to meet that case. 5. I am afraid the learned Sub Judge was misguided in forming a conclusion that the suit claim was based on an account stated which required production of the account books of the plaintiff firm to substantiate its claim. A series of trade transactions in the supply of goods to the defendant firm had been made and the amount claimed under the suit is outstanding in respect of such transactions which are W.P.C.No.24200/08 - 4 - reflected in its accounts, is the case of the plaintiff, as seen from P1 plaint. Suit on account stated is not actually a suit for accounts. It is the suit for recovery of fixed amount after the accounts are actually settled. The essential ingredients for filing such a suit is that there should be a mutual account between the parties before such suit can be filed. If the plaintiff alone makes the accounting and file a suit for recovery of the balance amount due, such a suit will not be a suit on account stated. From P1, copy of the plaint, I find the plaintiff has no case that there is a mutual account between the parties other than of trade transactions and claim over the amount stated as the balance outstanding in the account maintained by the plaintiff. So much so, the nonproduction of the accounts with the plaint preceding on the assumption that the suit was framed as one for account stated, even if that be so under the contemplation of the plaintiff in framing the suit, cannot be considered as precluding the plaintiff from producing its accounts books and other documents as materials to substantiate the suit claim. In that view of the matter, I find that the court below was not justified in declining leave to the plaintiff to produce the documents for the reason that such documents should have been produced with the plaint. The maintainability of the suit on W.P.C.No.24200/08 - 5 - whatsoever grounds canvassed by the defendant, in the given facts of the case, can be considered only after taking evidence, and any view thereof by the court before examining that question on its merit, as spelt out in Ext.P4 order, is not proper and correct. 6. The decision relied by the court below in Abdul Khader v. Surburban Chit Funds (P) Ltd. (2006 KHC 232) to decline leave to the plaintiff to produce documents at the stage of trial, dealt with a case where the execution of the suit documents already produced had been disputed by the opposite party was sought to be sent over to an expert for comparison and opinion only at the stage when the case came up for trial. It was in that context this Court held that visitorial jurisdiction vested under Article 227 of the Constitution of India cannot be invoked to examine the propriety and correctness of the order of the court below refusing to send documents for expert opinion which had been sought for at a belated stage. The facts covered and circumstances involved in that case and the decision rendered thereunder has no connection or parallel with those involved in the present case. At the most, the grant of leave condoning the delay in production of the documents can be subject to terms. Shutting out the evidence of a party to the extent possible is not to W.P.C.No.24200/08 - 6 - be followed unless the conduct of that party is such that the belated production was on account of culpable negligence and wilful default. As there is nothing to indicate that there was wilful default on the part of the plaintiff, I find leave can be granted for reception of the documents produced belatedly by the plaintiff subject to payment of cost of Rs.2,000/- (Rupees Two Thousand only) to the defendant within four weeks from the date of this judgment. If cost is paid within the stipulated time as directed by deposit or payment to the counsel for the defendant in the court below, evidenced by memo acknowledging such payment, Ext.P4 order shall stand set aside, and if not, that order passed by the court below declining reception of the documents belatedly produced will stand. Writ petition is disposed as indicated above. srd/prp S.S. SATHEESACHANDRAN, JUDGE