JUDGMENT
1. This is an appeal by the plaintiff, a firm styled Bhawani Sahai-Saling Ram, and is directed against the final decree passed by the First Civil Judge of Saharanpur on 9th November 1932. The suit was for a declaration that the plaintiffs were the owners of four railway receipts specified at the foot of the plaint and for an order directing the defendants to render a complete account in respect of certain purchases of goods made by the defendants on behalf of the plaintiffs, and for such other reliefs as might be necessary in the interest of justice. The allegations in the plaint were that the defendants as commission agents on behalf of the plaintiffs purchased large quantities of grain and went to the extent of loading the same in a railway train, but they refused to give the railway receipts to the plaintiffs' man who was present at the station. The claim, therefore, was for the declaration that the railway receipts really belonged to the plaintiffs and that the defendants were liable to render accounts. It may be mentioned that by the time the suit was instituted the goods had not been taken delivery of by any person and were still in the custody of the railway. We are not concerned with the various defences taken by the defendants originally inasmuch as they were the subject of controversy at the time of the preliminary decree, and as neither party chose to appeal against the preliminary decree, the matters in controversy there must be deemed to have been set at rest. One point, however, need be mentioned, and it is that the defendants' main contention was that the plaintiffs themselves were to blame for the non-delivery of the goods, inasmuch as they did not tender the price of the goods and, therefore, the railway receipts could not be handed over to the plaintiffs' man. The consignment was sent by the defendants and was endorsed not in favour of any particular consignee but in favour of the consignors themselves. The defendants alleged that as the plaintiffs did not pay the price of the goods, a telegram was sent to them and the goods were subsequently sold to Messrs. Mulraj Banwari Lal. In the written statement no date is given of the sale of the goods to Mulraj Banwari Lal. The learned Civil Judge on 21st November 1931 passed a preliminary decree by which he declared the rights of the parties and by which he appointed Babu Bimal Prasad an advocate of the Court, a commissioner for the purpose of going through the accounts. The commissioner submitted his report, and objections were taken by the plaintiffs as well as by the defendants. In the result a final decree was passed by which the plaintiffs' claim was dismissed with costs and a decree was passed in favour of defendants 1 to 4 in the sum of Rs. 1,019-8-9.
2. Several pleas have been taken in appeal before us and the very first plea argued on behalf of the appellants was that the defendants had made no claim in their written statement for any specified sum and, therefore, they were not entitled to get any decree. As we mentioned before, the goods could not be delivered to any person on account of certain disputes that arose between the parties as regards a particular term of the contract of sale, the plaintiffs alleging that they had deposited a large amount of margin money in the shop of the defendants and, as such, they were entitled to get the goods without payment of any price, such price being considered at the time of final settlement of accounts, and the defendants alleging that a very small sum was deposited with the defendants not enough to cover the price of the goods supplied by the defendants to the plaintiffs and, therefore, it was necessary for the plaintiffs to pay as soon as the goods were loaded in the train. By reason of the fact that the goods had to remain in the custody of the railway, the railway charged demurrage and the sum of Rs. 1,019-8-9 is made up of this demurrage, inasmuch as the amount paid to the railway was Rs. 1,392, and as under the final decree the plaintiffs were held entitled to Rs. 372,7-3, the decree in favour of the defendants was to the extent of the demurrage paid by the defendants after giving credit for Rs. 372-7-3 due to the plaintiffs. The question, therefore, that we have got to decide is whether the defendants are entitled to this demurrage or whether by reason of their own conduct they have precluded themselves from claiming the sum and whether under the law decree in a suit like this could be passed in favour of the defendants.
3. Taking the first aspect of the question in the beginning, it appears that the goods were loaded on 20th, 22nd and 23rd May 1931 at Laksar railway station and the plaintiffs' man, Dwarka Das, was present at the station. He says he had a dispute with Chhajju Mal at Laksar railway station, because he asked Chhajju Mai for the railway receipt and the latter did not give the railway receipt, and in connection with that dispute Dwarka Das got Chhajju Mal arrested. The goods, however, went to Hapur, which was the place of destination, and at Hapur they remained at the railway station. A telegram was sent to the plaintiffs on 23rd May 1931 for remitting the price, but this telegram was not heeded. The dispute between the plaintiffs and the defendants culminated in reports to the police and in the filing of criminal complaints. The bahis of the defendants' shop were taken by the police in their custody in the 25th May 1931, and on the 1st June 1931 the present suit was instituted. It is, therefore, clear that nobody could take delivery of the goods, and the question of ownership regarding the goods, was not at all a clear one. It is true that the defendants alleged in their written statement that as the plaintiffs did not send any reply to the telegram of the 23rd May 1931, the goods, covered by the railway receipts, were sold to Mulraj, Banwari Lal, but it is not stated as to when the goods were sold, and Madho Ram, the munib of Mulraj Banwari Lal, in his evidence before Court also does not state as to when the goods were sold.
4. In any event, one thing is certain that up till the institution of the suit the goods were not taken delivery of, for we find that an application for injunction restraining the defendants from taking delivery of the goods and dealing with them was made and an ad interim injunction was granted which remained in force up till 13th June 1931. The goods were taken delivery of on 15th June 1931 after paying a sum of Rs. 1,392 as demurrage to the railway. It was found by the Court at the time of the passing of the preliminary decree, which has become conclusive between the parties, that the plaintiffs were to blame in this important controversy. Their allegation that they had left a large sum of margin money in the hands of the defendants has been found to be false, and the Court below has come to the conclusion that under the agreement between the parties the plaintiffs had to pay for the goods before they could obtain delivery of the same. The plaintiffs, therefore, were wrong in the dispute which they created, and it was because of this dispute that the goods had to remain at the railway station and demurrage was incurred. The responsibility of the demurrage, therefore, must fall on the shoulders of the plaintiffs. Even if the goods were sold to Mulraj Banwari Lal some time before 1st June, it is obvious that Mulraj Banwari Lal could not take delivery of the same under the circumstances mentioned above. The contention, therefore, advanced on behalf of the appellants that they at best can be made liable for demurrage only during the period beginning from 1st June 1931 and ending 13th June 1931 is without any substance, because even prior to that the plaintiffs were to blame, and either the defendants nor the defendant vendee could take delivery of the goods because of the attitude adopted by the plaintiffs.
5. We are in agreement with the Court below that the plaintiffs ought to pay the amount of the demurrage. It has been proved from the demurrage payment receipts that the railway realised a sum of Rs. 1,392 from Rameshwar Lal who acted as a broker on behalf of Mulraj Banwari Lal, and this firm got the amount paid back by the defendants. This is clear from the evidence of Madho Bam, munim of the firm Mulraj Banwari Lal, and from the entries in the account books of the defendants.
6. Coming now to the second aspect of the question, we are of the opinion that it is permissible to a Court to pass a decree in favour of the defendant in a suit of the present kind. This is a suit, as is clear from relief (b) of the plaint, for rendition of accounts. Order 20, Rule 16, Civil P.C. provides that in a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall before passing its final decree pass a preliminary decree directing such accounts to be taken as it thinks fit. It is clear that if Rule 16 applies then the amount of money due to or from any party can be ascertained, and there would be no point in ascertaining the amount due to or from any party if a decree could not be passed in favour of any party to whom the amount of money was due. It is, however, contended that Section 16 is limited to a suit between a principal and an agent, and in the present case the relationship between the parties is not that of a principal and an agent, but the defendants simply purchased goods on behalf of the plaintiffs. We do not appreciate this argument, because the relationship between the plaintiffs and the defendants was that of a principal and an agent; in the plaint it is specifically stated that the defendants are commission agents. Further it may be pointed out, as was pointed out by the learned Judicial Commissioners in Sind in R.B. Harjimal & Sons v. Firm Dhanpatmal Dewanchand A.I.R. 1921 Sind 42, that Rule 16 does not only apply to a suit for an account between principal and agent, but the words used in the rule are wide ones and apply to all cases where the Court, instead of itself settling the account, considers it necessary to stay its hand in order to ascertain the amount of money due to or from any party by having an account taken before a Commissioner.
7. Rule 16 speaks of the passing of a preliminary decree in a suit for account between principal and agent, and Rule 15 speaks of a preliminary decree in a suit for dissolution of partnership, and in Appx. D, Civil P.C., we have forms of preliminary and final decrees in a suit for the dissolution of partnership and taking of partnership accounts, and both of these forms 'indicate that a decree can be passed in 'favour of the defendant. Looking, therefore, into the phraseology of E. 16 and into the forms given in App. D, it becomes apparent that it is within the competence of a Court at the time of passing a final decree to pass a decree in favour of the defendant. In Parmanand v. Jagat Narain (1910) 32 All 525 it was held that in a suit brought by a principal against an agent for rendition of accounts the Court can grant a decree to the agent upon the finding that money was in fact due to him and that the decree was justified with reference to the provisions of Sections 215-A and 216, Civil P.C. of 1882. Section 215-A of the Code of 1882 corresponds to Order 20, Rule 16 of the Code of 1908. It is true that the plaintiffs in their plaint claimed that a decree might be granted to them for whatever might be found due to them and tentatively they said that a sum of Rs. 2,100 would be found due to them, but they also prayed for rendition of accounts, and the suit must, therefore, be deemed to be a suit for an account of pecuniary transactions, and in such a suit the plaintiff necessarily runs the risk of finding that on a true account, instead of any sum being due to the plaintiff, some thing is due to the defendant. In the case before us, the defendants, in para. 9 of the written statement, said that a sum of Rs. 415-14-6 was due to the defendants from the plaintiffs, and in para. 15 the defendants alleged that on account of the wrongful act of the plaintiffs the defendants had to pay demurrage to the railway and the plaintiffs were liable therefor. The defendants, although they did not specifically claim any set off under Rule 6, Order 8, undoubtedly intimated to the Court that on a true accounting something would be found due to the defendants, and, as we said before, Rule 16 contemplates the possibility of a sum of money being due to the defendant and a decree being passed therefor.
8. This view is supported by Parmanand v. Jagat narain (1910) 32 All. 525, mentioned above, and by the case in Ram Charan v. Bulaqi A.I.R. 1924 all 854, where also it was said that in "a suit for taking accounts between partners whose partnership had dissolved a decree could be passed in favour of the defendant under Order 20, Rule 15, Civil P.C. on payment of the necessary court-fee, if it turned out that a balance was due to the defendant. The Court below, while passing a decree in favour of the defendants, has directed that the defendants should pay the court-fee for the sum decreed within fifteen days, and if the requisite court-fee is not paid within the time allowed, no decree shall be prepared. On this view of the case, we are of the opinion that there is no substance in grounds Nos. 3, 4, 5, 6 and 7 of the grounds of appeal taken before us. The other two grounds need not detain us long. The controversy in the present suit related directly to 795 bags of wheat as covered by the four railway receipts mentioned in the plaint, but the suit involved a consideration of a total number of 1,957 bags, and it is urged in the first ground of appeal taken to this Court that it has not been established that all the 1,957 bags were purchased by the defendants for the plain, tiffs.
9. Now it is quite clear that 315 bags of corn had been sent by the defendants to the plaintiffs at Hapur and their deli-very had been duly taken by the plaintiffs. There is thus no dispute regarding these 315 bags of corn. There is no dispute about 795 bags of corn, because they are directly the subject of the suit and the plaintiffs claimed that they were purchased by the defendants for the plaintiffs. There remain now only 847 bags, and it is clear from the plaintiffs' own letter, Ex. A, that 779 bags more were purchased by the defendants for the plaintiffs. The controversy, therefore, narrows down to 68 bags only, and ground No. 2 of the memorandum of appeal is that in any case there is no reliable evidence for the purchase of at least 68 bags, and while we are considerite the first plea we might dispose of the second plea as well, because it is clear from the sworn testimony of Chhaju Mal, defendant, and by an entry in his account book that 68 bags were also purchased by the defendants on behalf of the plaintiffs. This settles the controversy regarding the entire 1,957 bags, which is the subject of the first ground of appeal and the 68 baga which is the subject of the second ground of appeal, for these 68 bags are a part of the 1,957 bags mentioned in the first ground of appeal. The above disposes of all the contentions advanced by the learned advocate for the appellants, and we think that the view taken by the Court below is correct, and the appeal is dismissed with costs.