Holding

A suit for rendition of accounts is not maintainable by an independent contractor lacking a statutory or fiduciary right, but the suit cannot be dismissed in entirety; the contractor is entitled only to the amount claimed with proper court‑fee.

Summary

The appellant, an independent contractor, entered into an item‑rate construction contract with the State of Kerala and claimed Rs. 2,00,000 for work done, paying court‑fee on that amount. The trial court decreed the suit for the claimed sum, finding the State had breached the contract by delaying material supply, level approvals and payments. The High Court dismissed the suit entirely, holding that a contractor cannot maintain a suit for rendition of accounts against the employer. The Supreme Court held that while a suit for rendition of accounts is not maintainable by an independent contractor absent a statutory or fiduciary right, the suit could not be dismissed in its entirety; the contractor is entitled only to the amount claimed with proper court‑fee, i.e., Rs. 2,00,000 plus damages. The Court also clarified that Section 149 CPC applies only to court‑fee payable at the time of institution and cannot be used to increase the claim without amendment. Accordingly, the appeals were allowed in part, restoring the trial court decree for Rs. 2,00,000 and Rs. 1,000 damages with interest.

Issues considered

Whether an independent contractor can maintain a suit for rendition of accounts against the employer.
Whether, if the prayer for accounts is not maintainable, the suit must be dismissed in its entirety.
Whether the State (employer) committed breach of its contractual obligations.
Whether the plaintiff is entitled to a decree for the amount claimed despite the unmaintainability of the accounts claim.
Whether Section 149 of the CPC permits payment of deficit court‑fee to increase the claim after institution of suit.

Legislation cited

Code of Civil Procedure, 1908s. Order 20 Rule 16, s. Order 21 Rule 13, s. Order 21 Rule 15, s. Order 21 Rule 16, s. Section 149
Indian Contract Act, 1872s. Section 213
Kerala Court Fees and Suits Valuation Act, 1959s. Section 22, s. Section 25(d)(ii), s. Section 35

Subjects

independent contractorrendition of accountsbreach of contractcourt feeSection 149 CPCitem‑rate contractmeasurement bookcivil proceduredecreedamages

Judgment

t

A K.C. SKARIA
v.
THE GOVT. OF STATE OF KERALA AND ANR.

JANUARY 10, 2006

B [ARIJIT PASA YAT AND R.V. RA VEENDRAN, JJ.]

Code of Civil Procedure, 1908:

Order 20 Rule 16-Suit for rendition of accounts between principal and
C agent-Decree in-Contractor and State entered into a contract for construction
work--Contractor filed suit claiming Rs. 2 lacs with interest thereon alleging
that the State committed delays, defaults and breach of contract--Trial court
decreed the suit-But High Court dismissed the suit in entirety holding that
a suit by an independent contractor for rendition of accounts by the employer
D was not maintainable-Correctness of-Held: A suit for rendition of accounts
can be maintained only if a person suing has a right to receive an account
from the defendant- -Independent contractor is neither an agent of the employer
nor the claim for rendition ofaccounts supported by equity-Right for rendition
of accounts is also not recognized or created b_v any statute in favour of the
independent contractor-Hence suit for rendition of accounts not
E maintainable-However, merely the independent contractor also chose to seek
accounts, he cannot be non-suited--Trial court "s decree for Rs. 2 lacs with
interest of Rs. 1,000 thereon restl.8ed-Kera/a Court Fees and Suits Valuation
Act, 1959, S. 35--Contract Act, 1872, S. 213.

F Section 149-DeficienLy of Court-fees--Power to make up-Plaintiff
filed a suit for recovery of Rs. 2 lacs with interest and valued the suit
accordingly for the purpose of c·ourt-fee -The trial court held that the actual
value of work done was Rs. 5,33,560 but decreed the suit for Rs. 2 lacs with
interest thereon as the plaintiff claimed only Rs. 2 lacs and paid court-fee
thereon-Plaintiff. in appeal, claimed Rs. 5,33,560 which was found due and
G sought permission to pay deficit court-fee- -Permissibility o.f-Held: Section
149 applied only in respect of the court-fee payable at the time of institution
of the suit-Section 149 has no application where the court-fee, due on the
plaint as per the valuation of the suit, isful~v paid, but subsequently it is found
that a larger amount is due to the plai111iff-P/ai111ijf can increase the claim

H 274
275
'"
K.CSKARIA v. THE GOVT. OF STATE OF KERALA
;
only by seeking amendment of plaint and paying additional court-fee on the A
amended claim-SectiOn 149 is also applicable to such amended claim-But
then such amendment would depend on limitation and may not be permitted
after the period of limitation-Hence trial court rightly decreed the suit for
Rs. 2 lacs with interest thereon.

The respondent-State invited tenders for execution of a construction B
.., work. An agreement was executed between the respondent-State as the
employer and the appellant as the contractor. The contract required the
work to be completed within 18 months from the date of handing over
the site. The appellant-contractor submitted a bill for Rs. 5,36,800. It was
not paid. In spite of delay in payment an\! other breaches by the
department, the appellant proceeded with the work and completed a
c
substantial portion of the work. Ultimately a payment of Rs. 4,04,628 was
made.

~ The appellant filed a suit against the respondent-employer for
recovery of Rs. 2 lacs towards the amount due for work done and paid D
the court fee on this amount. During the pendency of the suit, the
Department passed an order terminating the contract at the risk and cost
of the appellant.

The trial court decreed the suit in part and held that the Department
committed breach by causing delays on various counts, thereby preventing E
the appellant from completing the work. The trial court held that though
the amount due towards the work done was Rs. 5,33,560, as the appellant
had claimed only a sum of Rs. 2 lacs on that count and paid court fee
thereon, the appellant was entitled to a decree for Rs. 2 lacs only towards
the value .of work done.
F
The appellant filed an appeal before the High Court contending that
the suit ought to have been decreed for Rs. 5,33,560, which was found due,
instead of Rs. 2,00,000 by permitting him to pay the deficit cou·rt fee in
regard to the balance amount. The High Court dismissed the suit in
entirety holding that a suit by an independent contractor for rendition of G
accounts by the employer was not maintainable. Hence the appeal.

'"' The following questions arose before the Court:-·

(i) Whether the appellant as an independent contractor engaged by
the State Government for execution of construction work, is entitled to H
t

276 SUPREME COURT REPORTS [2006] I S.C.R.

A maintain a suit for rendition of accounts by the employer?

(ii) Whether even if the prayer for accounts was not maintainable,
the suit could have been dismissed in entirety by the High Court?

(iii) Whether the respondents(employer) committed breach of its
B obligations under the contract?

Allowing the appeal in part, the Court
..
HELD: 1. The relationship between the first respondent and the
appellant was that of an employer and an independent contractor engaged
to execute certain work in terms of the contract. The contract was an item-
C rate contract and payment for the work done had to be made by the
employer to the contractor as per the measurements recorded in the
measurement book maintained by the Department. It is also not in dispute
that while the appellant as the contractor would approximately know the
quantum of work done by him, the exact quantities for the purpose of
D payment could be ascertained by him only by actually measuring the work
done or by having access to the measurement book maintained by the
Department. In the circumstances, the question that arises for
consideration is whether the remedy of the appellant, engaged as an
independent contractor to execute a construction work (in an item-rate
contract where payment is to be made as per the measurements recorded
E in the measurement book maintained by the employer) in the event of non-
payment for the wok done, is only to file a suit for the cost of the work
done quantifying the amount due, or whether he could file a suit for
rendition of accounts against the employer with a further prayer for a
decree for the amount due. 1286-A, DI

F 2. Order 20 Rule 16 of the Code of Civil Procedure, 1908 does not
create or confer any substantive right to seek rendition of accounts in any
particular type of cases, nor in all types of cases. It merely refers to a rule
of procedure and would apply where there is an existing right to seek
rendition of accounts having regard to the relationship between the parties.
G 1286-FI

3. 1. It is now well-settled that the right to claim rendition of accounts
is an unusual form of relief granted only in certain specific cases and to
be claimed when the relationship between the parties is such that the
rendition of accounts is the only relief which will enable the plaintiff to
H satisfactorily assert his legal right. 1286-GI
K.C.SKARIA v. THE GOVT. OF STA TE OF KERA LA 277
Jowahar Singh v. Haria Mal, (1899) 60 P.R. 1899, Gu/am Qutab-ud- A
din Khan v. Mian Faiz Bakhsh, AIR (1925) Lah 100, State ofJ & K v. Tota
Ram AIR (1971) J & K 71 and Tri/oki Nath Dhar v. Dharmarath Council,
AIR (1975) J & K 76, referred. 1286-H; 287-AI

3.2. The right to seek rendition of accounts is recognized in law in
such as administration suits for accounts of any property and for its B
administration, suits by a partner of a firm for dissolution of the
-\ partnership firm and accounts, suits by the beneficiary against trustee/s,
suits by a member-Of the joint family against the Karta for partition and
accounts, suits by a co-sharer against other co-sharer/s who has/have
received the profits of a common property, suits by a principal against C
an agent, and suits by a minor against a person who has received the funds
of the minor. 1287-BI

4. Even where there is no specific provision for rendition of accounts,
courts have recognized an equitable right to claim rendition of accounts.
1287-CI D
Narandas Morardas Gajiwa/a v. S.P.A.M. Papamma/, AIR (1967) SC
333, relied on. 1287-Cj

5. A suit for rendition of accounts can be maintained only if a person
suing has a right to receive an account from the defendant. Such a right
can either be (a) created or recognized under a statute; or (b) based on E
the fiduciary relationship between the parties as in the case of a beneficiary
and a trustee, or (c) claimed in equity when the relationship is such that
rendition of accounts is the only relief which will enable the person seeking
accounts to satisfactorily assert his legal right. Such a right to seek
accounts cannot be claimed as a matter of convenience or on the ground F
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 accounts to avoid payment of court
fee at the time of institution of a suit. 1287-H; 288-A-BI

6. The right of a contractor engaged to execute a particular work to G
file a suit for accounts against the employer in regard to payment for the
work done is not created or recognized by any statute. The independent
contractor is not an agent of the employer. Nor is the employer in the
position of a trustee with reference to the independent contractor. The
claim cannot be supported in equity by stating that where the relationship
is such that rendition of accounts is the only relief which will enable the H
t

278 SUPREME COURT REPORTS [2006) I S.C.R.

A contractor to satisfactorily assert his legal right. A contractor who is
engaged to execute a work, is expected to maintain his own accounts. At
all events, there is no bar for a contractor to keep an account of the work
done. Even where the contract between the employer and an independent
contractor may provide for payment on the basis of measurements to be
B recorded by the employer, nothing prevents the contractor from measuring
the work done by him and then suing for the value of the wor:< done. The
contractor may also demand joint-measurements to determine the
quantum of work done. If the employer for some reason does not co-
operate, or prevents the contractor from taking physical measurements,
the contractor can seek appropriate legal remedy which will enable him
C to take measurements or to secure the information from the measurement
book in the custody of the employer. Therefore, either the fact that the
measurement book is maintained by the employer, or the fact that the
contractor does not possess the exact measurements, will not entitle the
contractor to file a suit for rendition of accounts against the employer.
(288-C-F]
D
7. In this case, the appellant could have either himself measured the
work done by him, or secured the information from the respondents. The
appellant has neither made out a right under a statute nor any fiduciary
relationship nor any right in equity by establishing that except by calling
E upon the defendants in the suit to render accounts, it is not possible for
him to get relief. The appellant has sued for Rs.2 lacs and paid court fee
thereon. Nothing prevented him from suing for Rs.5,33,000. In Para S of
the plaint, he states that the total value of work done by him was Rs.
10,00,000. He knew that he had been paid only Rs.4,04,628. He also knew
the value of material supplied by the employer. In the circumstances, the
F prayer for rendition of accounts is not maintainable. (288-G, H; 289-A(

8. The appellant next attempted to press into service Section 149 of
CPC to contend that he ought to have been given an opportunity to pay
the deficit court fee on the total amount due for the work done. Section
149 provides that where the whole or any part of court fee prescribed for
G any document has not been paid, the court may, in its discretion, at .any
stage, allow the person by whom such fee is payable, to pay the whole or
part as the case may be, of such court fee, and upon such payment, the
document in respect of which such fee is payable, shall have the same force
and effect as if such court fee had been paid in the first instance. Section
H 4 of the Court Fee Act bars the court from receiving the plaint if it does
--t
' :._ K.C.SKARIA r. THE GOVT. OF STATE OF KERALA 279
)
not bear the proper court fee. Section 149 acts as an exception to the said A
bar, and enables the court to permit the plaintiff to pay the deficit court
fee at a stage subsequent to the filing of the suit and provides that such
payment if permitted by the court, shall have the same effect as if it had
been paid in the first instance. (289-B-CJ

Mannan Lal v·. Chhotka Bibi, AIR (1971) SC 1374, held inapplicable. B
(289-DJ
~'
9. A careful reading of Section 149 CPC shows that it will apply only
in respect of the court fee payable at the time of institution of the suit. If
the court fee on the plaint when instituted, is not paid wholly or partly by
the person instituting the >uit, the court in its discretion, may allow him
c
to pay the court fee or deficit court fee within the period fixed by it. Section
149 CPC has no application where the court fee, due on the plaint as per
the valuation of the suit, is fully paid, but subsequently it is found that a
larger amount is due to the plaintiff. (289-F, GI
1 D
10. A plaintiff can increase the claim only by seeking amendment of
the plaint and paying additional court fee on the amended claim. In regard
to such amended claim also, Section 149 may be pressed into service. But
then amendment would depend on limitation and may not be permitted
after the period of limitation. Where there is no amendment to the plaint
increasing the suit claim, there is no occasion for pressing Section 149 into
E
service in regard to court fee payable on plaints. (290-B-CJ

11. The contractor has also established by evidence that there was
an inordinate delay on the part of the department in approving the levels
in spite of requests and that until levels were approved, road formation F
work could not be carried out. The contractor has also clearly established
that there was an inordinate delay in making payment for the work done.
The first bill was submitted for Rs.5,36,800. After certain deductions, a
sum of Rs.4,04,628 towards the said bill was released only after 19 months.
This delay remains unexplained. (292-G-H; 293-A(
G
12. The trial court has examined the evidence in detail and has
:r recorded clear findings of fact about the delays and the breach committed
~ by the Department. The finding of the High Court without consideration
of the evidence cannot be sustained. The finding of the trial court that
the respondents committed breach of their obligations and the appellant
H
was justified in refusing to complete the work is restored, and also the
t

280 SUPREME COURT REPORTS [2006) I S.C.R.

A consequential finding that the respondents could not, therefore, recover
the extra cost in getting the work completed from the appellant.
1293-B, Cl

13. It is not in dispute that as per the measurements recorded by
the Department, the value of the work done was Rs. l 0,05,466.42 and the
B amount due in regard to the work done after deducting the part payment
and value of the material supplied, was Rs.5,33,S60. The plaintiff had
estimated the amount due for work done as Rs.2 lacs and paid the court-
fee therefor. He did not amend the suit claim nor pay any additional court
fee. The claim for accounting has been rejected as not maintainable.
C Therefore, the plaintiff is entitled only to a decree for Rs.2 lacs towards
the value of the work done, even though he has established that the amount
due in that behalf was Rs. 5,33,560. 1293-F, DI

14. As the appellant has established breach by the respondents, the
award of Rs. t,000 as damages for breach by the trial court is also upheld.
D As a consequence of the finding that the breach is on the part of the
respondents and not on the appellant, the trial court was justified in giving
a declaration that the respondents were not entitled to recover any extra
cost involved in getting the work completed from the appellant. But it
could not have granted the further relief of directing the respondents to
E refund the security deposit amount and retention deposit amount, as the
appellant had neither quantified the said security deposit/retention deposit
nor paid court fee thereon. Therefore, the decree granted by the trial court,
to the extent it directs refund of the security deposit and retention amount,
cannot be sustained. (293-F, GI

F CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6885-6886
of 2003.

From the Judgment and Order dated 12.11.2002 of the Kerala High
Court in A.S. Nos.697/91 and 481192.

G T.L.V. Iyer, M.K.S. Menon and M.K. Michael for the Appellant.

Balraj B. and K.R. Sasiprabhu for the Respondents.

The Judgment of the Court was delivered by

H R.V. RAVEENDRAN, J. These are plaintiffs appeals against the
common judgment and decree dated 12.11.2002 of the High Court of Kera la
K.C.SKARIA r. THE GOVT. OF STATE OF KERALA [RAVEENDRAN, J.] 281
)
in Appeal Suit No.481/1992 filed by the defendants, and Appeal Suit No.697/ A
1991 filed by the plaintiff both against the judgment and decree dated
16.2.1991 in O.S. No.2411990 on the file of the Subordinate Court,
· Muvattupuzha.

2. The plaint averments, in brief, were as follows:
B
(2. I.) The second respondent (The Superintending Engineer, PWD,
Central Circle, Alwaye, Kerala) invited tenders for execution of a
construction work (Improvements to Thalakkad to Mularinad Road).
The appellant's offer was accepted and an agreement dated 7.6.1982
was executed between the State of Kerala as the employer (represented
by second respondent), and the appellant as the contractor. The C
. estimated cost of the work was Rs. 11,28,595 and the security deposit
payable by the appellant ·was Rs.22,600. The contract required the
work to be completed within 18 months from the date of handing
over of the site. As the site was fonnally handed over on 17.8.982,
the work had to be completed on or before 16.2.1984. According to D
the appellant, on account of delays, defaults and breaches committed
by the Department, he could n.ot complete the work.

(2.2.) The appellant submittecl_ an on account bill for Rs. 5,36,800 on
25.8.1984. It was not paid. In spite of the delay in payment and other
breaches by the department, the Appellant proceeded with the work E
and completed substantial portion of the work. He also sent various
letters seeking payment. The Executive Engineer by letters dated
4.7.1985 and 18.10. 1985 infonned the Chief Engineer (B&R) that the
appellant had executed work worth about Rs. I 0 lacs and the delay in
payment was affecting the progress of the work. In spite of it, the
payment was delayed and ultirnately Rs.4,04,628 was belatedly F
released on 26.3.1986 after making cert&in deductions (that is 10%
towards errors in measurement, Rs.40,463 as retention amount etc.).
No further payments were made by the Department.

(2.3.) The appellant alleged the following breaches by the respondents:-
G
(i) Delay in issuing cement and steel required for the work which
was the Department's responsibility (delay of 16 months in issuing
cement and delay of 26 months in issuing steel);
(ii) Default in releasing further cement and MS rods thereby
preventing him from completing the work (two bridges); H
282 SUPREME COURT REPORTS [2006 I I S.C.R.

A (iii) Failure to finalise the formation level of the road., thereby
preventing him from metalling the road (delay in approving initial
levels tentatively being 9 months);
(iv) Delay in making on account payments for the work done as
required by the contract terms (delay of 19 months in releasing
B the payment towards first part of bill);
(v) Requiring him to do more than 25% in excess of the agreed
quantities in regard to certain items of work;
The appellant contended that in view of the expiry of the contract
period as also the extended period and the breaches committed by the
C Department preventing him from completing the work within the extended
period, he was not liable to execute the balance work and that the Department
cannot foist any liability on him in regard to any extra cost in getting the
balance work completed through another agency.

The appellant filed O.S. No.691/1987 on the file of the Sub-ordinate
D Judge, Ernakulam (later transferred and renumbered as O.S. No.24/1990 on
the file of Sub-Judge, Moovattupuzha) against the respondents, for the
following reliefs:

(i) For recovery of Rs. 2 lacs towards the amount due for work
done, with interest at 18% per annum. (The appellant also claimed
E proper accounting and prayed that if the amount due for the
work done was in excess of Rs.2 lacs estimated by him, he may
be permitted to pay additional court fee in regard to the actual
amount found due);
(ii) For recovery of Rs.1,000 as damages and breach of contract with
F interest at 18% per annum thereon;
(iii) For a declaration that he was not liable to execute the remaining
part of the work and that the completion of the remaining work
shall not be at his risk and cost, and for a consequential direction
to refund the entire security deposit and retention money with
G interest at 18% per annum;
(iv) For costs and such other reliefs as the court may deem fit to
grant in the circumstances of the case. i-

3. The appellant valued the suit, for the purposes of court fee, as follows,
ur.der the Kerala Court Fees and Suits Valuation Act, 1959 ('CF Act' for
H short) and paid court fee accordingly :-
-1I

K.CSKARIA '"THE GOVT, OF STATE OF KERALA [RAVEENDRAN, J,] 283
)
S. No. Relief Valuation CF paid A
(a) Relief (i) under Section 35 of
CF Act Rs. 2,00,000 Rs. 19,980
(b) Relief (ii) under Section 22 of
C.F. Act Rs. 1,000 Rs. 100
(c) Relief (iii) under Section
B
\ 25(d)(ii) of the Act Rs. 300 Rs. 30
I
Total Rs. 2,01,300 Rs. 20,110

4. The suit was resisted by the State, inter alia, on the ground that there C
was no breach on its part. It was alleged that the work consisted of (a) cross
drainage works, (b) Earth-work for fonning the roadway, (c) protective works
and (d) supply of materials like stone, metal etc. The respondents stated that
cement was issued on 9.11.1983 when the appellant made arrangements for
,, cross drainage works. It was also alleged that a part of steel rods were issued
on 26.10.1984 and balance as and when the work progressed. It was contended D
that major items of work (like earthwork for road formation, supply of stone/
metal for soling and metalling work) did not involve cement and steel and
nothing prevented the appellant from proceeding with those works pending
issue of cement and steel. It was also alleged that any delay in supply of
materials by the Department would entitle the appellant only to extension of E
time and not to any extra payment. It was alleged that time was extended
from 16.8.1984 to 31.3.1985 and again up to 31.12.1985 with fine ofRs.100
and the appellant did not complete the work in spite of such extensions and
in spite of final notice dated I I .11.1986. The respondents contended that
they would get the unfinished work completed at the risk and cost of the
appellant and recover any extra cost in completing the work as also the cost F
of unreturned material from the security and retention amounts and ot~er
amounts due to the appellant.

5. During the pendency of the suit, the Department passed an order
dated 31.5.1989 terminating the contract at the risk and cost of the appellant
arid ordering forfeiture of the security deposit amount of Rs.22,600. G

6. The trial court framed the following issues :

I. Whether the --defendants committed breach of contractual
obligation and if so, what is the amount due to the plaintiff as
H
284 SUPREME COURT REPORTS (2006) I S. C.R.

A damages for breach of contractual obligations?
2. Whether the plaintiff is entitled to get the value of the work done
and, if so, what is the amount due to him ?
3. Whether the plaintiff is entitled for a declaration that the balance
work shall not be arranged at the risk and costs of the plaintiff
B and consequently directing the defendants to release security
deposit and retention amount?
4. Whether the plaintiff is entitled to get 18% interest per annum on
the amount due to him from the date of the suit 16-7-1987 till
the date of realization.
c 5. Cost and other reliefs."

7. After appreciating the oral and documentary evidence led by the
parties, the trial court by a judgment and decree dated 16.2.1991 decreed the
suit, in part. It held that as per the measurements contained in the Measurement
D Book (Ex. B-2) maintained by the Department, the total value of the work
done by the appellant was Rs. I0,05,466.42 and as Rs.4,36, 963.29 had already
been paid, the balance due for the work done was Rs.5,68,487.13, and after
deducting the cost of the material supplied by the Department, the amount
due to the appellant was Rs. 5,33,560. The trial court also found that the
Department committed breach by causing delays on various counts, thereby
E preventing the appellant from completing the work. The trial court held that
though the amount due towards the work done was Rs.5,33,560, as the
appellant had claimed only a sum of Rs.2 lacs on that count and paid court
fee thereon, the appellant was entitled to a decree for Rs.2 lacs only towards
value of work done. As a consequence of its findings, the trial court decreed
p the suit against the respondents as follows :-

(i) A decree for Rs. 2 lacs towards the cost of the work done with
12% interest per annum from the date of suit till the date of
decree and, thereafter, at 6% per annum till the date of realization;
(ii) A decree for Rs. I,000 as damages for breach of contract with
G interest as above;
(iii) A declaration that the appellant was not liable to execute the "1-
,..
remaining part of the work and the execution of the balance
work shall not be at the risk and cost of the appellant; and
(iv) A direction to the respondents to refund the security deposit
H
K.C.SKARIA ''·THE GOVT. OF STATE OF KERA LA [RA VEENDRAN, J.] 285
amount and retention money within six months to the appellant. A
8. The appellant filed an appeal in A.S. No.697/1991 contending that
the suit ought to have been decreed for Rs.5,33,560 which was found due,
instead of Rs.2,00,000 (towards the value of the work done) by permitting
him to pay the deficit court fee in regard to the balance amount.
B
9. ~he respondents also filed an appeal in A.S. No.481/1992, being
\I
aggrieved by the reliefs granted by the trial court. The respondents contended
that the appellant, who was an independent contractor, was not entitled to
maintain a suit for rendition of accounts and, therefore, the trial court ought
to have dismissed the suit in entirety, as not maintainable. It was also contended
that the trial court ought to have held that the appellant was in breach and C
that there was no breach on the part of the respondents.

IO. A Division Bench cifthe Kerala High Court by a common judgment
dated 12.11.2002 dismissed the appellant's appeal and allowed the respondents'
appeal thereby dismissing the suit in entirety. It held that a suit by an D
independent contractor for rendition of accounts by the employer, was not
maintainable and, therefore, there cou Id not be a decree for Rs.2 lacs towards
cost of work done, or for any other relief. It also held that there was no
breach on the part of the Department and, consequently, the trial court could
not have granted a declaration that the Department was not entitled to get the
balance work executed at the risk and cost of the appellant. E
11. Feeling aggrieved, the appellant has filed these appeals by special
leave. On the contentions raised, the following points arise for our
consideration :

(i) Whether the appellant as an independent contractor engaged by F
the State Government for execution of construction work, is
entitled to maintain a suit for rendition of accounts by the
employer?
(ii) Even if the prayer for accounts was not maintainable, whether
the suit could have been dismissed in entirety by the High Court? G
(iii) Whether the respondents (employer) committed breach of its
obligations under the contract ?
(iv) To what amounts, if any, the appellant is entitled to?

Re : Point (i) : H
t

286 SUPREME COURT REPORTS [2006] I S.C.R.

A 12. The relationship between the first respondent and the appellant was
that of an employer and an independent contractor engaged to execute certain
work in terms of the contract. The contract was an item-rate contract and
payment for the work done had to be made by the employer to the contractor
as per the measurements recorded in the Measurement Book maintained by
B the Department. It is also not in dispute that while the appellant as the
contractor would approximately know the quantum of work done by him, the
exact quantities for purpose of payment could be ascertained by him only by
actually measuring the work done or by having access to the measurement
book maintained by the Department. In the circumstances, the question that
arises for consideration is whether the remedy of the appellant, engaged as
C an independent contractor to execute a construction work (in a item-rate
contract where payment is to be made as per the measurements recorded in
the measurement book maintained by the employer) in the event of non-
payment for the work done, is only to file a suit for the cost of the work done
quantifying the amount due, or whether he could file a suit for rendition of
accounts against the employer with a further prayer for a decree for the
D amount due.

13. Order 21 Rule 13 CPC provides that in administration suits, a
preliminary decree directing accounts can be made. Order 21 Rule 15 provides
that in a suit for dissolution of partnership or taking of partnership accounts,
E the court before passing a final decree may pass a preliminary decree declaring
the proportionate shares and directing accounts to be taken. Order 21 Rule 16
provides that "in a suit for an account of pecuniary transactions between a
principal and an agent, and in any other suit not hereinbefore provided for,
where it is necessary, in order to ascertain the amount of money due to or
from any party, that an account should be taken, the court shall, before
F passing its final decree, pass a preliminary decree directing such accounts to
be taken as it thinks fit." We may clarify that Order 20 Rule 16 does not
create or confer any substantive right to seek rendition of accounts in any
particular type of cases, nor in all types of cases. It merely refers to a rule
of procedure and would apply where there is an existing right to seek rendition
G of accounts having regard to the relationship between the parties.

14. It is now well-settled that the right to claim rendition of accounts
is an unusual form of relief granted only in certain specific cases and to be
claimed when the relationship between the parties is such that the rendition
of accounts is the only relief which will enable the plaintiff to satisfactorily
H assert his legal right [vide Jowahar Singh v. Haria Mal ( 1899) 60 P.R. 1899,
K.C.SKARIA v. THE GOVT. OF STATE OF KERA LA [RA VEENDRAN. J.] 287
followed in Gulam Qutab-ud-din Khan v. Mian Faiz Bakhsh AIR (1925) A
Lahore 100, State ofJammu & Kashmir v. L. Tota Ram AIR (1971) J&K 71,
Triloki Nath Dhar v. Dharmarath Council, AIR (1975) JK 76]. The right to
seek rendition of accounts is recognized in law in administration suits for
accounts of any property and for its administration, suits by a partner of a
firm for dissolution of the partnership firm and accounts, suits by beneficiary
against trustee/s, suits by a member of the joint-family against the Karta for B
\ partition and accounts, suits by a co-sharer against other co-sharer/s who has/
have received the profits of a common property, suits by principal against an
agent, and suits by a minor against a person who has received the funds of
the minor.

15. Even where there is no specific provision for rendition of accounts,
c
courts have recognised an equitable right to claim rendition of accounts. In
Narandas Morardas Gajiwala v. S.P.A.M. Papammal, AIR (1967) SC 333,
this Court considered the maintainability of a suit by an agent against the
principal for accounts. Negativing the contention that only a principal can
sue the agent for rendering proper accounts and not vice versa, (as Section D
213 of the Contract Act provided that an agent is bound to render proper
accounts to his principal on demand without a corresponding provision in the
Contract Act enabling the agent to sue the principal for accounts), this Court
held:

"In our opinion, the statute is not exhaustive and the right of the E
agent to sue the principal for accounts is an equitable right arising
under special circumstances and is not a statutory right. ........... ..
Though an agent has no statutory right for an account from his
principal, nevertheless there may be special circumstances rendering
it equitable that the principal should account to the agent. Such a case F
may arise where all the accounts are in the possession of the principal
and the agent does not possess accounts to enable him to determine
his claim for commission against his principal. The right of the agent
may also arise in an exceptional case where his remuneration depends
on the extent of dealings which are not known to him or where he
cannot be aware of the extent of the amount due to him unless the G
accounts of his principal are gone into."

16. To summarise, a suit for rendition of accounts can be maintained
only if a person suing has a right to rece'ive an account from the defendant.
Such a right can either be (a) created or recognized under a statute; or (b)
H
288 ·SUPREME COURT REPORTS [2006] I S.C.R.

A based on the fiduciary relationship between the parties as in the case of a
beneficiary and a trustee, or (c) 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 or on the ground of
hardship or on the ground that the person suing did not know the exact
B amount due to him, as that will open the floodgates for converting several
types of money claims into suits for accounts, to avoid payment of court fee
at the time of institution.

17. Let us now examine whether a contractor engaged to execute a
C particular work, can file a suit for accounts against the employer in regard to
payment for the work done. Such a right is not created or recognized by any
statute. The independent contractor is not an agent of the employer. Nor is
the employer in the position of a trustee with reference to the independent
contractor. Can the claim be supported in equity by stating that where the
relationship is such that rendition of accounts is the only relief which will
D enable the contractor to satisfactorily assert his legal right? A contractor who
is engaged to execute a work, is expected to maintain his own accounts. At
all events, there is no bar for a contractor to keep an account of the work
done. Even where the contract between the employer and independent
contractor may provide for payment on the basis of measurements to be
E recorded by the employer, nothing prevents the contractor from measuring
the work done by him and then suing for the value of the work done. The
contractor may also demand joint-measurements to determine the quantum of
work done. If the employer for some reason does not co-operate or prevents
the contractor from taking a physical measurements, the contractor can seek
appropriate legal remedy which will enable him to take measurements or to
F secure the information from the measurement book in the custo~y of the
employer. Therefore, either the fact that the measurement book is maintained
by the employer, or the fact that the contractor does not possess the exact
measurements, will not entitle the contractor to file a suit for rendition of
accounts against the employer.
G 18. In this case, the appellant could have either himself measured the
work done by him or secured the information from the respondents. The
appellant has neither made out a right under a statute nor any fiduciary
relationship nor any right in equity by establishing that except by calling
upon the defendants in the suit to render accounts, it is not possible for him
G to get relief. The appellant has sued for Rs.2 lakhs and paid court fee thereon. l
K.C.SKARIA 1·. THE GOVT. OF ST ATE OF KERALA [RA VEENDRAN, J] 289
Nothing prevented him from suing for Rs.5,33,000. In para 5 of the plaint, A
he states that th~ total value of work done by him was Rs. I0,00,000. He
knew that he had been paid only Rs.4,04,628. He also knew the value of
material supplied by the employer. In the circumstances, the prayer for
rendition of accounts is not maintainable.

19. The appellant next attempted to press into service Section 149 of B
CPC to contend that he ought to have been given an opportunity to pay the
deficit court fee on the total amount due for the work done. Section 149 ·
provides that where the whole or any part of court fee prescribed for any
document has not been paid, the court may, in its discretion, at any stage,
allow the person by wliom such fee is payable, to pay the whole or part as C
the case may be, of such court fee, and upon such payment, the document in
respect of which such fee is payable, shall have the same force and effect as
if such court fee had been paid in the first instance. Section 4 of the Court
Fee Act bars the court from receiving the plaint if it does not bear the proper .
court fee. Section 149 acts as an exception to the said bar, and enables the
court to permit the plaintiff to pay ·the deficit court fee at a stage subsequent D
to the filing of the suit and provides that such payment if permitted by the
court, shall have the same effect as if it had been paid in the first instance.
Interpreting Section 149, this Court in Mannan Lal v. Chhotka Bibi, (AIR
1971 SC 1374) held that Section 149 CPC mitigates the rigour of Section 4
of the C.F. Act, and the courts should harmonise the provisions of the C.F. E
Act and the CPC by reading Section 149 as a proviso to Section 4 of the C.F.
Act, and allowing the deficit to be made good within the period to be fixed
by it. This Court further held that if the deficit is made good, no objection
could be raised on the ground of bar of limitation, as Section 149 specifically
provides that the document is to have validity with retrospective effect.
F
20. A careful reading of Section 149 shows that it would apply only iti
respect of the court fee payable at the time of institution of the suit. If the
court fee due on the plaint when instituted, is not paid wholly or partly by
the person instituting the suit, the court in its discretion, may allow him to
pay the court fee or deficit court fee within the period fixed byit. Section 149
has no application where the court fee, due on the plaint as per the valuation G
of the suit, is fully paid, but subsequently it is found that a larger amount is
due to the plaintiff. For example, if th~ plaintiff values the suit at Rs.2 lacs
and the court fee payable is Rs.20,000 and the plaintiff pays a court fee of
Rs. I 0,000, on his request time for payment of balance of Rs. I 0,000 can be
extended by the court at its discretion under Section 149 CPC. But where the H
290 SUPREME COURT REPORTS [20061 I S.C.R.

A claim was Rs.2 lacs and full court fee on Rs.2 lacs was paid at the time of
institution of the suit, and during evidence it transpires that the amount due
to plaintiff is actually Rs.5 lacs and not Rs.2 lacs, the question of permitting
the plaintiff to pay deficit court fee at that stage by calling in aid Section 149,
does not arise as no court fee becomes payable at that stage. Plaintiff can
B increase the claim only by seeking amendment of the plaint and paying
additional court fee on the amended claim. In regard to such amended claim
also, Section 149 may be pressed into service. But then amendment would
depend on limitation and may not be permitted after the period of limitation.
Where there is no deficit in court fee at the time of institution and when there
is no amendment to plaint increasing the suit claim, there is no occasion for
C pressing Section 149 into service in regard to court fee payable on plaints.

Re : Point No. (ii) :

21. The High Court treated the suit as one for accounts. In view of its
finding that a suit for accounts by a contractor is not maintainable, it held that
D the suit in entirety ought to be dismissed as not maintainable.
22. The plaint contains all averments necessary for the plaintiff to sue
for the value of the work done. He estimated the amount due towards work
done at Rs.2 lakhs and paid court-fee on the said Rs.2 lakhs. If the plaintiff-
appellant has established that the work could not be completed on account of
E the breaches on the part of the employer, and also establish that the value of
work done by him exceeded Rs.2 lakhs, we find no reason why he should be
denied a decree for at least Rs.2 lakhs. Merely because the plaintiff also
chose to seek accounting, he cannot be non-suited. This is not a case where
the plaintiff had sued only for accounts, paying court fee on a mere Rs.1,000
F under section 35 of the Court Fee Act. The prayer in the suit is for recovery
of Rs.2 lakhs towards the value of the work done with an additional prayer
for accounting and several other reliefs. In fact, plaintiff did not even seek
in the prayer column, a decree for any higher amount, if the amount found
due on accounting was found to be more than Rs.2 lacs. If the prayer in
regard to accounting was found to be not tenable. that prayer could not be
G granted. But nothing could come in the way of plaintiff getting a decree for
.J •
the amounts claimed towards value of the work done for which he has paid
the court fee, by proving that such amount was due for work done and by
proving that he was not at breach. Having regard to the frame of the suit, we
are of the view that the High Court was not justified in dismissing the suit
H as not maintainable, ignoring the other prayers. The second point is answered
K.C.SKARIA v. THE GOVT. OF STA TE OF KERALA [RA VEENDRAN, J] 291
)
accordingly. A
Re : Point No.(!ii) :

23. The trial court after exhaustive reference to the evidence and the
rights and obligations of the parties under the contract, recorded clear findings
of fact that there was inordinate delay on the part of the respondents in B
supplying steel and cement, in finalizing the formation levels which was a
condition precedent for furtlier progress of work, and in making on account
payment for the work done. It consequently held that the employer
(respondents) was at breach and the contractor was not at breach. The High
Court however reversed the said findings and held that the respondents were C
not in breach merely on the following reasoning, not based on evidence:

"There is definite contention by the defendants that department had
made all arrangements to supply the departmental materials and that
the departmental materials were issued only according to the progress
of the work at site in order to safeguard the interest of the Government. D
..... As contended by the defendants, supply of departmental materials
would have become necessary, only ifthere was progress in the work
done by the plaintiff. The defendants submit that departmental
materials were issued only in accordance with the progress of the
work at site. On the basis of the materials available on records it is
not at all possible to say that there was breach of contract by the E
defendants."

24. The contract work even according to the respondents, consisted of
four parts, namely, (i) cross drainage work, (ii) earthwork for forming the
roadway, (iii) protective works and (iv) supply of material like soling stone,
metal etc. The cross-drainage work required cement and steel and under the F
contract, it was for the Department to issue those materials. The site was
delivered on 17.8.1982 and the work had to be completed within 18 months
i.e. by 16.2.1984. The schedule prescribed for progress/executions required
the cross-drainage work to be carried out first. But, strangely, the first batch
of cement was issued only on 9. l l.1983 and the first batch of steel was G
issued only on 26.10.1984. When the period stipulated for completion was 18
months and if the first supply of cement is made after 15 months and first
steel supply was made after 26 months, very little is required to conclude that
there was inordinate delay and consequential breach on the part of the
Department, in supplying the material. The question is about the initial delay
in supplying the cement and steel. The High Court has only referred co H
292 SUPREME COURT REPORTS [20061 I S.C.R.

A subsequent progressive supply of steel and cement and is strangely silent
about the enormous delay in commencing the supply of steel and cement.
The evidence discloses that the appellant had written several letters (Ex. A5
dated 13.10.1982, A3 dated 8.12.1982, A4 dated 6.4.1983, A6 dated I0.8.1983
and A7 dated 17.8.1983 among others) requesting for issue of steel and
B cement and pointing out that he had collected the materials like rubble,
metal, sand etc. for cross-drainage work and unless the Department issues
cement and MS rods, he cannot start the cross-drainage work. In spite of it,
issue of cement was commenced only on 9.11.1983. The delay of 16 months
in issuing cement and 26 months in issuing steel is clearly established by oral
and documentary evidence. The fact that after the initial delay, steel and
C cement were progressively supplied will not wipe out the breach on account

-
of the initial delay in supply.

25. The Department contended that even though there was delay in
supply of cement and steel, the contractor could have commenced the
earthwork for road fonnation and metalling work which did not involve
D cement and steel. But the various letters exhibited by the contractor (referred
to above) show that the cross-drainage and road work were inter-connected
and that though he had collected the material for cross-drainage work
immediately after the site was handed over to him, earthwork for the road
could not be completed until the cross-drainage work was executed. Further,
E as per the schedule for progress of work, cross-drainage work had to be done
first. Ignoring this evidence and ignoring the findings by the trial court on the
basis of the evidence, the High Court has concluded that there was no delay
on the part of the Department by holding that the departmental material was
to be issued only in accordance with the progress of the work and that the
Department had progressively issued the material and, therefore, there was
F no breach. But what has been lost sight of is the fact that there was an initial
delay of as many as 16 months in regard to issue of cement and 26 months
in regard to issue of steel and until cement and steel were issued, the contractor
could not start the cross drainage work and the cross-drainage work was
linked to completion of the earthwork.

G 26. The contractor has also established by evidence that there was
inordinate delay on the part of the department in approving the levels (approved
only on 2.6.1983) in spite of requests in Ex. A5/ 13. I0.1982, Ex. A3/8. I2. I982
and A4 dt. 6.4.1983 and that until levels were approved, road formation work
could not be carried out. The contractor has also clearly established that there
H was inordinate delay in making payment for the work done. The first bill was
K.C.SKARIA v. THE GOVT. OF STATEOFKERALA [RAVEENDRAN. J] 293
,I
submitted on 25.8.1984 for Rs.5,36,800. After certain deductions, a sum of A
Rs.4,04,628 towards the said bill was released only on 26.3.1986 i.e. after 19
months. This delay remains unexplained.

27. The trial court has examined the evidence in detail and has recorded
clear findings of fact about the delays and the breach committed by the
Department. The finding of the High Court without consideration of the B
evidence cannot be sustained. We therefore restore the finding of the trial
\ court that respondents committed breach of their obligations and the appellant
was justified in refusing to complete the work, and the consequential finding
that the respondents cou Id not therefore recover the extra cost in getting the
work completed from the appellant. C
Re : Point No. (iv) :

28. It is not in dispute that ·as per the measurements recorded by the
Department (in Ex. 82), the value of the work done was Rs. 10,05,466.42
.,.
and the amount due in regard to the work done after deducting the part D
payment and value of the material supplied, was Rs.5,33,560. The plaintiff
had estimated the amount due for work done as Rs.2 lakhs and paid the
court-fee therefor. He did not amend the suit claim nor pay any additional
court fee. The claim for accounting has been rejected as not maintainable.
Therefore, the plaintiff is entitled only to a decree for Rs.2 lakhs towards the
value of the work done, even though he has established that the amount due E
in that behalf was Rs.5,33,560.

29. As the appellant has established breach by the respondents, the
award of Rs.1,000 as damages for breach by the trial court is also upheld. As
a consequence of the finding that the breach is on the part of the respondents
and not the appellant, the trial court was justified in giving a declaration that F
the respondents were entitled to recover any extra cost involved in getting the
work completed from the appellant. But it could not have granted the further
relief of directing the respondents to refund the security deposit amount and
retention deposit amount, as the appellant had neither quantified the said
security deposi!/retention deposit nor paid court fee thereon. Therefore, the G
decree granted by the trial court, to the extent it directs refund of the security
deposit and retention amount, cannot be sustained. The fourth point is answered
accordingly.

H
;

294 SUPREME COURT REPORTS [2006) I S.C.R.

A Conclusion :

30. In view of our aforesaid findings, we allow these appeals, in part,
set aside the order of the High Court and restore the decree granted by the
trial court for Rs.2 lakhs plus Rs.1,000 with interest thereon as per the decree
of the trial court. The appellant will be entitled to costs on the amount
B decreed throughout.

V.S. Appeal Partly allowed.