Chaturvedi J. - (1.)THE Plaintiffs first appeal is directed against the judgment and decree dated 16 -10 -1950 passed by the learned Second Additional District, Judge, Indore, in a suit for rendition of accounts. Instead of passing a decree for rendition of account or for re -opening accounts which the Plaintiff wanted, leave has been given to surcharge and faisify the accounts.
(2.)THE case of the Plaintiff is that the Defendant firm acted as agent of the Plaintiff in forward transactions in gold and silver from Baisakh 2002 to Baisakh 2003. The Vaida transactions were carried on in the Indore market in accordance with the rules framed by the Bada Sarafa Cotton Association and the Bullion Exchange, Indore.
The transactions there are made through certified brokers who are members of these associations and the contracts have to be recorded in the Cotton Contract Office. For this, registration fees are levied and the Plaintiff was charged with these fees by the Defendant firm.

The Defendant firm was not a certified broker, but had transacted business on behalf of the Plaintiff through certified brokers of the Association. According to the plaint, the Plaintiff had placed confidence in Nanooram Manaji, a partner of the Defendant firm and used to make lump sum payment to Defendant firm on Nanooram's assurance that the accounts would be rendered later. On the same assurance the Plaintiff issued and delivered to the Defendant firm two post dated cheques on Messrs. Grindley and Co. Bankers, Bombay, for Rs. 16,000 and Rs. 20,000 respectively; the first cheque being payable on 25 -10 -1946 and the second on 8 -12 -1946.

The first cheque was drawn in favour of Defendant firm and the second at the instance of the latter in favour of one Jagannath Neema. The Defendant firm failed to render true and full account to the Plaintiff and so the payment of the two cheques was stopped. The Defendant firm had handed over to the Plaintiff in June, 1946, on his demand, a book of account containing lump sum credit and debit entries of different Vaida transaction; but it lacked details and particulars.

Therefore, the Plaintiff insisted on the Defendant firm furnishing detailed account and full information as to the transaction alleged to have been executed by the Defendant firm on his behalf. Nanooram had first put off giving accounts till October 1946; then somehow or other agreed to give some details and asked his Munim to prepare full accounts. Then he suddenly changed his mind and asked the Plaintiff to depute some one on his behalf to take down the details of his account which his Munim would dictate.

The Plaintiff then sent his brother Narayandas to whom accounts for the months of Chaitra Samvat 2002/2003 were dictated. Nanooram then again changed his mind and he stopped supplying further details. The Plaintiff alleged that as Plaintiff's agent the Defendant firm was bound to render a true and full account to the Plaintiff, but the lawyers had taken the stand that the Defendant firm had already rendered the accounts, and therefore the Plaintiff filed this suit with a prayer for the following reliefs:

(1) to have a full and true account of the transactions Baisakh Sudi 5 S.Y. 2002 (16 -5 -1945) to Baisakh Sudi Samvat Year 2003.

(2) in the alternative, for re -opening of the above accounts;

(3) payment of such sum as may be found due from the Defendant firm and costs of the suit.

It may, however, be mentioned here that in para 6 of the plaint it was alleged that without prejudice to the Plaintiff's case that a full and true account had not been rendered by the Defendant firm, in the alternative, the Plaintiff stated that the account was liable to be reopened on the ground of surcharge and falsification, as he discovered that in the transactions of Chaitra Badi Samvat Year 2002, the Plaintiff had been saddled with cotton contract taxes payable to the Government about those transactions which had not been registered at the Cotton Contract Office; and that various transactions had been shown on behalf of the Plaintiff which never had his authority; that the Plaintiff has been debited with losses in certain transactions which had not been entered in the Cotton Contract Office at all, and that the rates at which some of these transactions were entered into on behalf of the Plaintiff, differed from those at which these transactions had actually been carried out.

(3.)THE suit was resisted by the Defendant on various grounds. It was alleged that the Plaintiff was a resident of Mhow Cantonment which was foreign territory so far as Holkar State was concerned. The Plaintiff therefore requested the Defendant firm to permit him to deal in forward transactions in gold and silver on the credit of the Defendant firm.
It was agreed that the Plaintiff would indemnify the Defendant firm for all losses and charges which the Defendant firm would require to pay for them and that the Defendant firm would receive remuneration at the rate of Rs. 1 -12 -0 per bar over the value of the transactions put through. But the Defendant firm was not the agent of the Plaintiff and was not liable to render accounts to tho Plaintiff.

There was no running account of a continuous character wherein lump sum payments were made by the Plaintiff without reference to distinct qualities of each Vaida. If was also stated that it was not true that Nanooram ever assured the Plaintiff that the accounts would be rendered later. The Plaintiff maintained his own accounts and was fully aware of the payments made by the Defendants and of the liability incurred by their firm for each Vaida and the Plaintiff used to make payments in discharge of these distinct libilities.

It was admitted that the Defendant firm received a cheque of Rs. 16,000 dated 25 -10 -1946 but it was asserted that this was in discharge of the liability incurred in Chaitra Sudi 15 Vaida amounting to Rs. 16,029 -8 -0. Another cheque was given to Jagannath Neema as payment was to be made for the losses incurred by the Plaintiff in Chitra Badi 30 Vaida in the name of the Defendant firm and this was done with the consent, and privity of Plaintiff and Jagannath Neema.

The Defendant firm maintained that it had nothing to do with this cheque as Neema's liability, was discharged by the Plaintiff. The accounts were settled on each Vaida and liabilities were discharged on each payment made by the Plaintiff and thus there was never any liability to render account. The Defendant firm contended that the Plaintiff at the most can only claim to reopen particular vaida transactions on the definite allegation that the Defendant firm did not in fact make payment alleged or incurred.

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