M. Sugathan and Usha v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** **RFA NO. 623 OF 2010** **AGAINST THE JUDGMENT IN O.S.NO. 46 OF 2005 OF THE SUB** ## **COURT, ATTINGAL** ## **APPELLANTS/PLAINTIFFS:** - **1 M.SUGATHAN, S/O. MADHAVAN, KOCHUVADAKKATHIL VEEDU, MANCHADIMOODU SARKARA VILLAGE.** - **2 USHA, D/O.LALITHA PATTARUMADAM, KOONTHALLOOR VILLAGE, CHIRAYINKEEZHU.** **BY ADVS. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN** ## **RESPONDENTS/DEFENDANTS:** - **1 THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM.** - **3 THE TAHSILDAR, CHIRAYINKEEZH TALUK, TALUK OFFICE, ATTINGAL.** **BY SR.GP SRI.T.K.VIPINDAS FOR R1 TO R3** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.F.A. No.623 of 2010 ..2.. ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** ## **R.F.A. No.623 of 2010** ## **----------------------------------------------Dated this the 29[th] day of March, 2022** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This appeal is preferred against the decree and judgment dated 30.07.2009 in O.S.No.46 of 2005 on the files of the Court of the Subordinate Judge, Attingal. The appellants were the plaintiffs in the suit. The State and the Excise Commissioner were defendants 1 and 2 respectively in the suit. 2. The plaintiffs were the licensees of a few toddy shops under Chirayinkeezh Excise Range for the period from April, 2000 to March, 2001. The plaintiffs obtained the right to conduct the toddy shops referred to above for a sum of Rs.4 crores payable in ten instalments by way of kist. According to the plaintiffs, even though they were remitting the kist promptly, their licence was cancelled on 20.10.2000. It was alleged by the plaintiffs that thereafter, in collusion with a few other abkari contractors who are hostile towards plaintiffs, the R.F.A. No.623 of 2010 ..3.. defendants falsified the accounts of the transaction the plaintiffs had with the defendants and initiated proceedings for realisation of huge amounts from them under the Kerala Revenue Recovery Act (the Act). It is stated by the plaintiffs in the plaint that even though the amount of kist payable by them upto 20.10.2000 was only Rs.2,33,33,333/-, they have paid by then Rs.2,40,54,000/-, Rs.7,20,667/-being in excess. The suit was filed in the circumstances for a direction to the defendants to furnish a true and correct account of the kist paid and to be paid by the plaintiffs for the period from April, 2000 to October, 2000 and allowing the plaintiffs to realise Rs.7,20,667/- or such other amounts as may be ascertained by the court, after rendition of the accounts, from the defendants. A decree of permanent prohibitory injunction restraining the defendants from initiating proceedings under the Act for realisation of kist in respect of the toddy shops was also sought. 3. A written statement was filed on behalf of the second defendant, mainly contending that the suit is not maintainable in the light of Section 72 of the Act. It was also contended in the written statement that the plaintiffs have not R.F.A. No.623 of 2010 ..4.. paid the kist as per the terms of the agreement from August, 2000 and although the kist payable by the plaintiffs for August, 2000 and September, 2000 were adjusted from the security deposit furnished by the plaintiffs, they have not replenished the security deposit and it is in the said circumstances that the licence was cancelled on 20.10.2000. The averment in the plaint that remittances made by the plaintiffs as on the date of cancellation of the licence were in excess of the amounts payable by them, was denied in the written statement. 4. The court below found that the plaintiffs have not made out a case of fraud on the part of the defendants and the suit is, therefore, barred by Section 72 of the Act, insofar as it relates to the injunction sought against the proceedings under the Act. Despite the finding aforesaid, the court below went on to consider the question whether the plaintiffs have paid any amount in excess as pleaded by them and found that the plaintiffs could not establish that any amount has been paid by them in excess. As noted, the plaintiffs are aggrieved by the decision of the court below. 5. Heard the learned counsel for the plaintiffs as also the learned Government Pleader. R.F.A. No.623 of 2010 ..5.. 6. The fact that Section 72 of the Act bars a suit in respect of a question arising between the collector and the defaulter relating to the execution, discharge or satisfaction of a written demand issued under the said statute has not been disputed by the learned counsel for the plaintiffs. He, however, contended that the suit being one instituted prior to the amendment to Section 72 with effect from 12.12.2005, the same is not barred under the said provision in as much as the plaintiffs attribute fraud on the part of the defendants in initiating proceedings under the Act. Even if the suit is barred under Section 72 insofar as it relates to the relief claimed against the revenue recovery proceedings, there is no bar for the suit insofar as it relates to the relief of rendition of accounts, is the alternative contention raised by the learned counsel. According to the learned counsel, the court below was therefore not justified, at any rate, in declining the relief of rendition of accounts sought in the suit. The learned counsel has relied on the decision of this Court **Kerala Small Industries Development Corporation Ltd. v. Manayadath Prakasan** , 2011 (3) KHC 660, in support of the proposition that a suit would certainly be maintainable against the R.F.A. No.623 of 2010 ..6.. ## defendants in relation to matters not covered by the Act. 7. Per contra, the learned Government Pleader contended that no case of fraud is pleaded or proved by the plaintiffs in the suit and as such, the court below cannot be blamed for having found that the suit is not maintainable. As regards the prayer for rendition of accounts, the learned Government Pleader submitted that such a suit would be maintainable only if the person suing establishes a right to receive account from the defendant. According to the learned Government Pleader, the case on hand is not a case where the plaintiffs could, as a matter of right, claim account of the transaction from the defendants and therefore, even the prayer for rendition of accounts, is not maintainable. The learned Government Pleader has relied on the decision of the Apex Court in **K.C. Skaria v. Govt. of State of Kerala,** AIR 2006 SC 811 and the decision of this Court in **Brothers Chitty Fund v. Jacob Mathew** , 2004 (1) KLT 64, in support of the said proposition. 8. We have examined the arguments advanced by the learned counsel for the parties on either side. 9. The suit was one instituted on 05.03.2005. The R.F.A. No.623 of 2010 ..7.. proviso to sub-section (1) of Section 72 prior to its deletion with effect from 12.12.2005 permitted a suit in respect of any question covered by sub-section (1) of Section 72 on the ground of fraud. As such, if the plaintiffs make out a case of fraud on the part of the defendants, the suit being one instituted prior to 12.12.2005, it is certainly maintainable. The question, however, is as to whether the plaintiffs have established a case of fraud. In the light of the provision in Rule 4 of Order 6 of the Code of Civil Procedure, it was obligatory for the plaintiffs to give necessary particulars of the fraud in the plaint. We have gone through the averments in the plaint meticulously and we do not find a case of fraud for the plaintiffs in the plaint. Of course, it is pleaded in the plaint that excise officials in collusion with certain abkari contractors who were inimical towards the plaintiffs created false accounts as regards the transaction of the plaintiffs. The court below rightly found that the said averments do not make out a case of fraud. The court also found that even the said case was not established by the plaintiffs. We do not, therefore, find any infirmity in the finding of the court below that the suit, insofar as it relates to the decree of permanent prohibitory injunction R.F.A. No.623 of 2010 ..8.. sought against the revenue recovery proceedings, is barred by Section 72 of the Act. 10. Let us now consider the question whether the suit, insofar as it relates to the decree for rendition of accounts, is maintainable. A suit for account is an extraordinary remedy which is available to the plaintiff under special circumstances. The ordinary remedy at law is a claim for a sum certain. A sum certain may not be a pre-determined specific amount if it is ascertainable, though not ascertained, and it would be deemed to be a sum certain. In order to sue for accounts, the person suing should make out a right to receive the account from the defendant. Such a right can either be created or recognised under a statute or based on the fiduciary relationship between the parties or claimed in equity when the relationship is such that rendition of accounts is the only relief which will enable the person seeking account to satisfactorily assert his legal right. Such a right to seek accounts cannot be claimed as a matter of convenience on the ground of hardship or on the ground that the person suing did not know the exact amount due to him, as that will open the floodgates for converting several types of money claims into suits for R.F.A. No.623 of 2010 ..9.. accounts, to avoid payment of court fee at the time of institution[See **K.C. Skaria and Brothers Chitty Fund]** . The plaintiffs have no case that they have a right to receive accounts in respect of their transactions with the defendants under any statute or that such a right is recognised by any statute. They do not have a case that the relationship they had with the defendants is fiduciary in nature. They do not also have a case that a suit for rendition of accounts is the only relief which will enable them to assert their right. On the other hand, the materials on record disclose that a relief for rendition of accounts is claimed to seek interim relief in the suit without payment of court fee, if not, it is certain that such a relief is claimed since the plaintiffs do not know the exact amount payable by them to the defendants. The suit, insofar as it relates to the prayer for rendition of accounts, is also therefore, not maintainable. The appeal, in the circumstances, is devoid of merits and the same is accordingly dismissed. **Sd/P.B.SURESH KUMAR, JUDGE. Sd/C.S.SUDHA, JUDGE.** ds 30.03.2022