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Judgment
Prasenjit Mandal, J.—This application is at the instance of the defendants and is directed against the Order No.78 dated August 19, 2011, Order No.82 dated September 8, 2011 and Order No. 84 dated September 15, 2011 passed by the learned Civil Judge (Senior Division), Kalna, District - Burdwan in Title Suit No.54 of 2007.
The short fact necessary for the purpose of disposal of this application is that the plaintiffs/opposite party no.s 1 & 2 herein instituted a suit being Title Suit No.54 of 2007 before the learned Civil Judge (Senior Division), Kalna against the defendants/petitioners herein and the proforma opposite parties claiming for a decree for dissolution of partnership, appointment of a Receiver and other reliefs.
While disposing of a civil revision being C.O. No.3156 of 2010 arising out of the said suit, a Single Bench of this Hon''ble Court, inter alia, observed that a Chartered Accountant would be appointed by the Trial Court for the purpose of scrutinising and certifying the accounts from March 6, 2009 till July 2011 and that the parties would make over and provide for statement of accounts, information and accounts in their possession to the said Chartered Accountant to enable him to prepare a proper accounts for the aforesaid period and then to produce quarterly statements of accounts on and from August 2011 for scrutiny and certification by the Chartered Accountant and upon such certification, such quarterly statement should be filed before the Trial Court and such arrangement would continue until further orders that may be passed by the Trial Court in the suit till the disposal of the appeal. The Hon''ble Single Bench further directed the Trial Court to implement the aforesaid order and to appoint a Chartered Accountant to carry out the aforesaid directions as expeditiously as possible. The Trial Court was further directed to appoint such a Chartered Accountant and fix his remuneration. The account is to be furnished before the Trial Court on or before September 15, 2011.
Pursuant to that order, the plaintiffs filed an application for appointment of a Chartered Accountant before the learned Trial Judge on August 10, 2011. The copy of the application for putting up the record was served upon the other parties on August 11, 2011. But, Mr. Jaydeb Kar, learned advocate for the defendants/petitioners herein having not come to the court on August 11, 2011, the copy could not be served upon him on that day. The record was put up accordingly on August 12, 2011 and on that day, Mr. Jaydeb Kar, learned advocate for the defendant no.s 1, 3, 4, 5(a) to 5(c) was very much present at the time of hearing, but he refused to take up steps. Accordingly, the learned Trial Judge fixed the next date on August 19, 2011 for passing appropriate orders, when the impugned order dated August 19, 2011 was passed appointing one Mr. Sudarsan Kumar Dangi of Dangi Jain & Company as Chartered Accountant and the remuneration was fixed at Rs.16,000/-per year subject to furnishing final bill after adjustment. Thereafter, the petitioners herein filed an application for reconsideration of the order dated August 19, 2011 before the learned Trial Judge and the defendant no.5 also filed an application for stay of the order dated August 19, 2011.
By the orders dated September 8, 2011 and September 15, 2011, the learned Trial Judge rejected both the applications of the defendants. He modified his earlier order dated August 19, 2011 and thus, directed the chartered accountant to submit the report on November 16, 2011. Being aggrieved by such orders, this application has been preferred by the defendants.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned counsel for the parties and on going through the materials on record, I find that there is no dispute about the facts as stated above. By the impugned orders, I find that the learned Trial Judge has simply complied with the directions of this Hon''ble Court as passed in the C.O. No.3156 of 2010.
It may be noted herein that previously by an order dated March 6, 2009, another Single Bench of this Court, while disposing of the C.O. No.3031 of 2008 arising out of the order dated August 7, 2008 passed by the Lower Appellate Court in Misc. Appeal No.7 of 2008, observed that the Court below rightly directed the appellants/opposite parties to submit monthly account to the Trial Court within 7th of each succeeding month together with statement of existing stocks, number of products, sale of products and quantum of unsold stocks of products monthwise. The Hon''ble Bench also incorporated certain other observations by way of elaboration.
The plaintiffs filed an application for compliance of the order of the Hon''ble Single Bench on August 10, 2011. Accordingly, the plaintiffs filed an application for putting up the record on August 11, 2011. Since the Hon''ble Court has fixed a specific date for submission of accounts, the learned Trial Judge fixed the next date, that is, on August 12, 2011 for hearing the application. It appears that as Mr. Jaydeb Kar was not available in the Court on August 11, 2008, the copy could not be served upon him; but on the date of hearing, that is, on August 12, 2011 Mr. Jaydeb Kar was very much present at the time of hearing. The learned Trial Judge has passed the impugned order dated August 19, 2011 accordingly. Thus, I find that before passing the impugned order dated August 19, 2011, the petitioners had the knowledge of the matter. It is up to their lawyer whether he would participate in the matter or not. But the matter was taken up in his presence for hearing. As per order of the Hon''ble Single Bench, the Chartered Accountant was to file the accounts before the Trial Court on or before September 15, 2011. Under the circumstances, the learned Trial Judge passed the impugned order dated August 19, 2011 appointing Mr. Sudarsan Kumar Dangi as Accountant and his remuneration was fixed at Rs.16,000/- yearly.
Mr. Ashoke Kumar Banerjee, learned Senior Advocate appearing for the petitioners has submitted that at the time of hearing the civil revision, it was referred to the Hon''ble Bench that no Chartered Accountant should be appointed from Calcutta and that a local Chartered Accountant should be appointed. The name of Sudarsan Kumar Dangi was considered at the time of hearing, it was not approved but the learned Trial Judge has appointed the same person as the Chartered Accountant in connection with the suit. The remuneration of the Chartered Accountant as fixed by the learned Trial Judge is excessive and so, the impugned order dated August 19, 2011 should be set aside.
Mr. S.P. Roychowdhury, learned Advocate for the opposite party no.1 has submitted that his client did not suggest the name of Mr. Sudarsan Kumar Dangi as Chartered Accountant before the learned Trial Judge. Mr. Roychowdhury has also referred to the copy of the application for appointment of a Chartered Accountant and submitted that the application does not lay down the suggestion of any name for appointment as Chartered Accountant. The learned Trial Court has appointed his name suo moto. The impugned orders have been passed in compliance with the order of the Hon''ble Court in the C.O. No.3156 of 2010. So, there is no illegality in the impugned order.
The other learned advocates appearing for the opposite parties have also adopted the same submissions as made by Mr. S.P. Roychowdhury.
On scrutiny of materials on record, I do not find that the plaintiffs/opposite parties herein gave the name of Mr. Sudarsan Kumar Dangi for his appointment as Chartered Accountant in their application dated August 10, 2011. The copy of such an application was sewed upon the parties available on August 10, 2011. The hearing of the matter was done before the learned Trial Judge on August 12, 2008 and the learned Advocate for the petitioners had knowledge of such fact. Though, the copy of the application for putting up the record for appointment of a Chartered Accountant, could not be served on the previous day, Mr. Jaydeb Kar was very much present at the time of hearing on August 12, 2011. This fact is not denied by the petitioners. In fact, immediately after passing of the first impugned order, the petitioners filed an application for reconsideration and upon hearing both the sides, that application was rejected by the order dated September 8, 2011. The learned Trial Judge has not recorded anything as to the contention of the petitioners that such name was ever suggested by the plaintiffs/opposite parties herein.
Under the circumstances, I am of the view that the appointment of a Chartered Accountant by the Court has been done entirely at the discretion of the Court and the learned Trial Judge has appointed Mr. Dangi as Chartered Accountant by exercising his discretion in compliance of the order of the Hon''ble Court as referred to earlier.
So far as remuneration is concerned, the learned Trial Judge has explained in the impugned order dated September 8, 2011 that yearly remuneration of Rs.16,000/- cannot be said to be excessive and by splitting up the amount under the head of monthly remuneration, it comes to Rs.1,333/- per month. So, the learned Trial Judge has observed that such monthly remuneration of Rs.1,333/- only of a Chartered Accountant, could in no way be termed as exorbitant amount. The prayer of the defendant no.s 1, 3, 4, 5(a) to 5(c) for reconsideration and modification of the order dated August 19, 2011 was rejected by the order dated September 8, 2011 by giving reasons in details after taking into consideration the development of the matter since the passing of the order dated July 19, 2011 in C.O. No.3156 of 2010. Ultimately, the learned Trial Judge has concluded that the application for reconsideration and modification of the order dated August 19, 2011 stands rejected on contest.
In that view of the matter, I am of the opinion that the learned Trial Judge has passed the impugned orders in compliance with the order dated July 19, 2011 passed by this Hon''ble Court in C.O. No.3156 of 2010, in exercising his discretionary power. The remuneration as fixed by the learned Trial Judge cannot be said to be excessive. The partnership firm is not far away from Calcutta and so, the Chartered Accountant can well go to the locale without much inconvenience.
Under the circumstances, I do not find any scope of interference with the impugned orders. The application fails to succeed. Accordingly, the said application is dismissed.
However, since the time for submission of accounts by the Chartered Accountant has already expired, the learned Trial Judge shall direct the Chartered Accountant to submit his report by 30 days from the date of communication of the order to him by the learned Trial Judge.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.