IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 RFA.No. 536 of 2008() ------------------------------- IA.NO. 3335/1998 IN OS.266/1991 of ADDL.SUB COURT, N.PARAVUR .................... APPELLANTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------------------- 1. M/S.KUNNATHU DISTRIBUTORS, KOLENCHERY. 2. M/S.KUNNATHU DISTRIBUTORS, PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER K.P. POULOSE, AGED 55 YEARS, KUNNATHUKALAPPURAYIL, KINGNIMATTOMKARA, AIKKARANADU SOUTH VILLAGE. 3. K.P. JOHNY, AGED 46 YEARS, PARTNER, KUNNATHUKALAPPURAYIL, KINGNIMATTOMKARA, AIKKARANADU SOUTH VILLAGE. BY ADV. SRI.P.K.SAJEEV RESPONDENT/PETITIONER/PLAINTIFF ------------------------------------------------------- POULOSE. A.D, AGED 55 YEARS, ELAVUMTHADATHIL, KINGNIMATTOMKARA, AIKKARANADU SOUTH VILLAGE. BY ADV. SRI.SUNU P.JOHN. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA.No. 536 of 2008 ORDER ON I.A. NO.3362/2008 IN R.F.A.NO.536/2008 DISMISSED 11/11/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs 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 : 2 : 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 : 3 : 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, : 4 : R.F.A.NO.536 OF 2008 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 : 5 : R.F.A.NO.536 OF 2008 : 6 : 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