NARAYANLAL BANSILAL PITTIE Vs. TARABAI MOTILAL

JUDGEMENT

(1.) Narayanlal Bansilal Pittie hereinafter called 'pittie' was the son-in-law of Tarabai, widow of Motilal. Tarabai carried on business in cotton, cotton-seed and cotton bales in the name and style of Narayandas chunilal in Bombay and also in Jalna within the former State of Hyderabed. Tarabai instituted suit No. 7 of 1354 Fasli in the court of the Sadar Adalat, aurangabad, against Pittie for a decree for Rs. 2,84,308. 00 alleging that she, Pittie and one Chogmal entered into a partnership to carry on business at Jalna in cotton, cotton-seed and cotton bales for a period of five years samvat Years 1982 to 1986, that her share in the profit and loss was six annas in a rupee, of Pittie six annas and of Ghogrnal four annas; that the transactions of the partnership resulted in a profit of Rs. 5, 257-12-9 in the first year and in a profit of Rs. 27,047-13-6 in the second year, that in the next three years the partnership suffered heavy losses and after giving credit for the profits earned in the first two years, the total loss suffered by the partnership was Rs. 2,08,960. 00 , that Chogmal represented that he was unable to pay his share of loss amounting to Rs. 52,000. 00 odd and it was mutually agreed that he should pay Rs. 21,317-7-0 only and the balance of the loss of Rs. 1,87,642-9-0 should be borne in two equal shares by her and Pittie, that on that account Pittie was liable to pay Rs. 93,827-4-6 with interest at the rate of 12 annas per mensem, that on Kartik Vadi 15, samvat 1987, the amounts which were to be contributed by her and Pittie were removed from the partnership account and were debited to their respective personal ledgers and the partnership was dissolved ; that she paidthe entire amount of the loss suffered by the partnership and was on that account entitled to recover from Pittie his share of Rs. 93,827-4-6 agreed to be paid by him with interest at the rate of 12 annas per cent. per mensem, that in 1945, Rs. 2,84,308. 00 were due by Pittie on account and that he failed and neglected to pay the same in spite of repeated demands. It was claimed in the plaint that the cause of action for the suit arose when partnership was dissolved and Pittie agreed to pay his share of the loss as settled by mutual agreement and since Pittie had a permanent place of residence in bombay which qua the State of Hyderabad at all material times before the institution of the suit was foreign territory the claim was within limitation by virtue of Section 13 of the Hyderabad Limitation Act.

(2.) Pittie by his written statement denied that there was a partnership agreement for five years as alleged by Tarabai. He contended that he had entered into a partnership agreement with Tarabai and Chogmal to carry on business in cotton, cotton-seed and cotton bales for Samvat Year 1982 and that the partnership agreement was by mutual agreement extended for samvat Year 1983. Pittie denied that the transactions after Samvat Year 1983 were of the partnership and contended that in any event the suit was barred by the law of limitation for he was a permanent resident of the state of Hyderabad and was at all relevant times residing in Hyderabad. He denied the settlement of account, dated Kartik Vadi 15, 1961. He contended that no account was ever sent to him and that no demand was made of him and the claim made against him was false and frivolous and was filed after he had filed a suit against Tarabai in the High court of bombay in respect of the amount of Rs. 5,63,821-5-3 due at the foot of a mutual, open and current account which suit was settled on February 2, 1944 and Tarabai agreed to pay and did pay Rs. 5,21,906. 00 in two instalments. He also contended that in view of the consent decree passed in the suit filed by him in the High court of Bombay in which suit Tarabai had not raised any contention about her claim was barred as res judicata.

(3.) Tarabai filed a reply to the written statement and accepted the case of Pittie that the original agreement of partnership was for one year and that it was extended for another year. She alleged however that after the expiry of the second year, it was agreed between Pittie, Ghogmal and herself that the partnership agreement should be continued for three years more and that accordingly the partnership was not dissolved at the end of the second year. She denied that the suit was false or frivolous or that it was barred as res judicata.