YEVANJE KRISHNA BHATTA Vs. KHANDIGE ISWARA BHATTA

JUDGEMENT

(1.) This second appeal arises out of a suit by the plaintiff for a refund of a certain sum of money on the ground that in the settlement of account between the parties he has paid certain amounts in excess of what was legally due to the defendant. The plaintiff executed a usufructuary mortgage in favour of the defendant on 26 June 1915 and took a lease back from him on 3 August 1915. Under the lease he had to pay rent according to the rate specified therein. On 3 April 1928 the parties looked into the accounts for a period of ten years and arrived at a certain figure as being due and payable by the plaintiff to the defendant and on the basis of that calculation the plaintiff paid a sum of Rs. 1,657 on that date. The plaintiff's case is that it was not a final taking of accounts and that he subsequently found out that the figure was arrived at on a wrong calculation of interest, that a sum of Rs. 523 collected by the defendant as receiver in another suit was not given credit to and that there were many other errors which had crept into the accounts and which had not been noticed by him on the date on which the accounts between the parties were settled. It has now been concurrently found by both the lower Courts that the plaintiff's case that a sum of Rs. 523 was due to him is not correct and in regard to the question of wrong calculation of interest they found that it was not open to the plaintiff to agitate that question when he had acquiesced in the method of calculation. I think the view of the lower Courts in this behalf is correct.

(2.) The case for the plaintiff is that only the rent account was settled and on that basis so much amount as was found to be due on the date of settlement was not really due. But the defendant stated that it was not only the account in respect of rent that was settled but there were certain other items in regard to which the plaintiff owed moneys to him and they were also adjusted and formed part of the settlement. All the said amounts are referred to in Paras. 34 and 36 of the judgment of the learned Subordinate Judge. Both the Courts have now concurrently found that no such moneys were due to the defendant and that the accounts of the defendant on the strength of which this claim was advanced were all cooked up. It, therefore, follows that in the taking of accounts, according to the defendant's own admission, these amounts ought not to have been taken into account. In such circumstances it is open to the plaintiff to have the account re-opened and to claim a refund of the amounts which have been wrongly taken into consideration. The law relating to this matter has been laid down in McKellar V/s. Wallace (1851-54) 5 MIA 372 at p. 395, to the following effect: Parties having accounts between them may meet and agree to settle those accounts by the ascertainment of the exact balance; and, if they mean to ascertain the exact balance, it may be necessary for that purpose, and probably is necessary in most cases, that vouchers should be produced and that all the information which is possessed on one side and the other, should be furnished in the settlement of those accounts; and if it afterwards turns out that there are errors in the account, it is a sufficient ground for opening the account and for setting it right in a Court of Equity.

(3.) Therefore, the defendant is bound to refund the said amounts. It is now agreed that the total amount to be so refunded will be Rs. 670-13-0. I, therefore, declare that the plaintiff is entitled to have a refund of the said sum of Rs. 670-13-0 with interest at 6 per cent. from the date of plaint. Mr. Sitarama Rao contends that the plaintiff will be liable for future rent which accrued from the date of Ex. A under the terms of the lease and there are still amounts due from him. Mr. Adiga says that payments have been made for which there are receipts. There is no evidence before me in regard to thi3 matter and I am not in a position to give a definite finding with regard thereto. It is open to Mr. Sitarama Rao's client to show in execution what amount Is due to him as and by way of rent from the plaintiff and pay only the balance. It is open to the executing Court to go into this question. With this modification the second appeal is dismissed but in the circumstances I make no order as to costs of this second appeal.