THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.241 OF 1994 JUDGMENT:- The plaintiff in O.S.No.624 of 1982 on the file of the Court of Subordinate Judge at Vijayawada, is the appellant herein. 2. The suit was filed for preliminary decree against the 1st defendant directing to render the account. 3. The allegations in the plaint go to show that the plaintiff was the original owner of 1973 model Ashok Leyland Tourist Bus bearing No.D.L.P. 5407. The said bus was purchased by the 1st defendant from the plaintiff for a consolidated sum of Rs.1,36,000/- as per the terms of the agreement of sale dated 15.12.1980. The 1st defendant paid a sum of Rs.1,100/- to the plaintiff towards advance payment of the sale consideration agreeing to pay a sum of Rs.34,900/- to the plaintiff by 19.12.1980 and took possession of the vehicle. The balance sale consideration of Rs.1,00,000/- is with the 1st defendant. From out of the said sum of Rs.1,00,000/- the 1st defendant shall discharge the debt due by the plaintiff to the 2nd defendant and pay the balance to the plaintiff. With the said understanding the plaintiff executed the agreement of sale in favour of the 1st defendant. The plaintiff believing the representations of the 1st defendant had signed on all the forms to facilitate transfer of the vehicle. The plaintiff has been requesting the 1st defendant to render the account and pay the balance of the amount to her after giving a copy of the receipt obtained by him evidencing the discharge of the debt of the 2nd second defendant. But, the 1st defendant has been rendering vague, evasive and formal replies. The plaintiff came to learn that the 1st defendant had got the vehicle transferred in his name and has been running the same without paying the purchase money or rendering account for the major portion of the sale consideration. In the said circumstances, the plaintiff has got a lien over the said vehicle as an unpaid vendor of the sale consideration. 4. The plaintiff also came to learn that there was a collusion between both the defendants intended to cause loss to the plaintiff. The 1st defendant has to furnish true account of the amount of Rs.1,00,000/- entrusted to him being an agent of the plaintiff to discharge the debt to the 2nd defendant. A legal notice was issued to both the defendants but a false reply was given. Therefore, the suit was filed for rendition of the account by the 1st defendant and also a decree against both the defend 5. The 1st defendant filed a written statement contending that it was agreed by him and the plaintiff that the bus bearing No.D.L.P.5407 would be sold to him for Rs.1,36,000/- and in pursuance thereof, he paid the plaintiff a sum of Rs.1,100/- as advance on 15.12.1980. It was agreed that on payment of Rs.34,900/- to the plaintiff by the 1st defendant, the delivery of the bus will be given and T.O. form, sale receipts, and insurance letter will be given. Accordingly, Rs.34,900/- was paid in cash to the plaintiff by the 1st defendant on 19.12.1980 and the plaintiff gave possession of the vehicle along with the T.O. form, cash receipt and sale letter etc., to him, directing to pay Rs.1,00,000/- representing the balance of sale consideration to the 2nd defendant. Accordingly, he paid the said amount of Rs.1,00,000/- to the 2nd defendant on 02.01.1981 and collected the hire purchase termination letter fulfilling the terms of the contract of sale. The suit for rendition of account is not maintainable. The amount of Rs.1,00,000/- was paid to the 2nd defendant and therefore, no decree can be passed against him. 6. The 2nd defendant filed a written statement contending that there is no cause of action and there is no proof of contract. The 2nd defendant M/s Dughar Credit Corporation is a proprietary concern of Jethmal Dughar doing hire purchase finance business of motor vehicles, having goodwill and renowned popularity in the market. The plaintiff along with her husband in the year, 1980 approached it and requested to give a loan of Rs.1,00,000/- for purchase of proposed bus by them. Then the 2nd de informed them that if they deposit Rs.20,000/- withit without interest, he will advance necessary amount to purchase bus as and when they purchase. They agreed for the same and accordingly they sent the T.T. for Rs.20,000/- on 26.04.1980. Thereafter, on 30.09.1980 he gave a loan of Rs.76,000/- and returned their Rs.20,000/- deposited amount, in total he paid Rs.96,000/- to the plaintiff and simultaneously entered into a necessary hire purchase agreement. The plaintiff’s husband stood as guarantor. 7. Subsequently, after three months, the 1st defendant came to him and told that he purchased the vehicle bearing No.D.L.P.5407 subject to discharge of the 2nd defendant’s hire purchase debt and paid Rs.1,00,000/- to him on 02.01.1981. Having received Rs.1,00,000/- from the 1st defendant gave the Hire Purchase terminating letter to the 1st defendant. Thereafter, the husband of plaintiff Mr.G.V.Rao came to him on 29.01.1981 to settle the accounts of the vehicle bearing No.D.L.P. 5407. After verifying the accounts of the plaintiff’s husband received Rs.18,675/- from the 2nd defendant in full and final settlement of the account of vehicle D.L.P.5407. He also gave receipt to that effect and also taken back the Hire Purchase agreement of the vehicle D.L.P.5407. All these facts are well known to the plaintiff, who is wife of Mr.G.V.Rao. Therefore, the 2nd defendant pleaded for a dismissal of the suit. 8. After framing of the necessary issues and after considering the evidence on record, the Court below held that the amount of Rs.1,00,000/- was paid to the 2nd defendant. But, however, this being not a suit for recovery of any amount and being only a suit for rendition of account, dismissed the claim against both the defendants. Aggrieved by the said judgment, the present appeal is filed. 9. The points that arise for consideration are: 1) Whether the plaintiff is entitled for the amount? 2) Whether the judgment and decree passed by the Court below is legal and sustainable? 10. POINTS: There is no dispute about the fact that the sale transaction was entered between the plaintiff and the 1st defendant. From out of the consideration of Rs.1,00,000/- some amount has to be paid to the 2nd defendant, which was due by the plaintiff and an understanding was entered into. It is also not in dispute that the 2nd defendant received Rs.1,00,000/- and from the finding of the Court below in para No.24, it is evident that an amount of Rs.18,675/- the balance amount is payable to the plaintiff after deducting the amounts under the loan transaction between them. Though the discharge is pleaded under Ex.B.5, the lower Court has not believed the same. The 2nd defendant has not challenged the finding of the Court below with regard to retaining of Rs.18,675/- from out of Rs.1,00,000/-, which was paid by the 1st defendant to the 2nd defendant. The Court below found that the suit is not filed for rendition of account for recovery of amounts from the 2nd defendant and the relief was asked only against the 1st defendant and consequently, dismissed the suit. 11. The learned counsel for the appellant contends that the suit is a comprehensive one and even if a suit is filed for rendition of account when it was found to be a money suit for recovery of certain ascertained amount, a decree can be passed. He relied on the decision reported in K.C. Skaria Vs. Government of State of Kerala and another[1]. Therefore, according to him, the lower Court ought not to have dismissed the suit. In fact, according to him, the prayer in the plaint was for a decree against both the defendants and not against the 1st defendant alone. It is useful to refer to para 10(a) of the plaint, which reads as follows: “10. So in view of the circumstances stated Court may be pleased to pass decree and judgment in favour of the plaintiff and against the defendants for (a) directing the 1st defendant to render the account and to pass a decree in favour of the plaintiff and against the defendants for the amount ascertained with interest at 18% per annum from the date of entrustment to the 1st defendant”. 12. Evidently, the question of rendition of accounts at this state does not arise since the amount, which was due from the 2nd defendant was already determined by the Court below, which is not seriously disputed by the appellant. 13. Therefore, a decree has to be passed for a sum of Rs.18,675/-, which is the amount retained by the 2nd defendant after adjusting the amount due to him from out of the sale consideration of Rs.1,00,000/- paid by the 1st defendant, which is payable to the plaintiff. The said amount shall carry an interest at 12% from the date of suit till the date of decree and with 6% till the date of realisation. Since the plaintiff has notionally valued the relief at Rs.16,000/- the balance of Court fee shall be paid by the plaintiff in the lower Court before proceeding for execution. Accordingly, the points are answered. In the result, the appeal is allowed against the 2nd defendant. No costs. Miscellaneous Petitions, if any, pending in this appeal shall stand closed. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date: 19.12.2012 INL [1] 2006(2) ALD 10 (SC)