CANARA BANK Vs. AAR PEE TRADING CO

JUDGEMENT

(1.) THE Canara Bank, the plaintiff, challenges in this revision petition, the order dated January 50, 1990, passed by the Senior Sub-judge, Jalandhar, appointing Shri Kishore Sareen, advocate, as a local commissioner, to examine the accounts and accounts statement produced by the bank and to submit his report regarding the amount due to the plaintiff-bank from the defendant keeping in view the objections and points raised by the defendant.

(2.) THE contention of Shri R. P. Jagga, advocate, appearing on behalf of the petitioner-bank is that, by passing the impugned order, the court has delegated his judicial functions to the local commissioner, which is not permitted under the law. In support of this contention, reliance has been placed on the decision of the Gujarat High Court in Govardhanbhai Somabhai Patel v. Parshottam Umedbhai, AIR 1976 Guj 98. After considering the submissions made by the parties, I find no illegality or error of jurisdiction in the impugned order. The suit filed by the bank is for recovery of Rs. 4,36,825. 14 on the basis of the amount advanced. Both the parties have closed their evidence and, at the stage of arguments, the impugned order was passed. On behalf of the respondent-defendants, discrepancies in the statement of account furnished by the bank have been pointed out which were raised in the trial court in writing. Some of these discrepancies relate to double posting of cheques and certain amounts debited wrongly and further certain amounts not credited for which the defendants have already led evidence in the suit. This would show that it is a case of adjustment of account. Order 26, Rules 11 and 12 of the Code of Civil Procedure, 1908, read together leave no manner of doubt that if it is considered necessary for adjustment of accounts, the court can issue a commission directing him to make such examination of accounts or adjustment and the report of the commissioner is to be considered only as a piece of evidence in the suit. The ultimate decision yet rests with the court. The nature of the discrepancies pointed out which are to be taken into consideration by the local commissioner in compliance with the order passed by the court does not indicate that any judicial decision is to be given by the commissioner in this respect. Even if there is yet some dispute between the parties regarding non-adjustment or otherwise on certain items by the local commissioner, the matter would still be open to the parties to agitate before the court on receipt of the report. The mere fact that detailed reasons for appointment of the commissioner for adjustment of accounts in a suit brought by the bank are not given is not sufficient to set aside the impugned order.

(3.) ALTHOUGH the commissioner is to make adjustment of the account statement which has already been furnished by the bank, still it is expected of the bank that an experienced representative of the bank can assist the local commissioner in the matter of making calculations so that there may not be any arithmetical error occurring in the report to be submitted by the commissioner.