GHANSHYAM NARAYAN BEHERE Vs. KESHAV MAHADEO KARANDIKAR

JUDGEMENT

(1.) This appeal by the plaintiff, on certificate, is against the judgment and decree of the Bombay High Court in First Appeal No. 111 of 1956. Though the litigation leading upto this appeal has commenced as early as 1953, it is rather regrettable, in the state of the present records, that we are not able to give a quietus to the controversy between the parties and that we have to remand the proceedings to the High Court for further adjudication.

(2.) The defendant, Keshav Mahadeo Karandikar, was doing business as a forest contractor for which purpose he opened an account with the plaintiff-appellant, Ghanshyam Narayan Behere. As per arrangement between the parties from time to time the defendant borrowed amounts from the plaintiff agreeing to pay interest at 9 per cent. per annum on the amounts so borrowed. The plaintiff maintained an account in the personal name of the defendant. In or about September,1950, one Somnath B. Shroff, acting on behalf of the defendant, approached the plaintiff for further financial assistance to enable the defendant to purchase the Barvad Pada Jungle. As per their agreement, the plaintiff expressed his willingness to advance loans. The terms of the agreement are to be found in the appeal records. The amounts advanced by the plaintiff relating to this transaction are to be found in the account opened by the plaintiff in the name of K. M. Karandikar and Company.

(3.) According to the plaintiff, he advanced in the name of K. M. Karandikar and Company, between 23rd December,1950 and 31st May, 1951, a sum of Rupees 3,94,547/10/. The defendant made repayment towards this liability between 25-12-1950 and 16-9-1951, a sum of Rupees3,53,000/10/, thus leaving a balance of Rupees 42-547/-( ) outstanding as against him. In the personal account of the defendant the plaintiff claimed to have advanced between 19-8-1949 and 1-8-1951 a sum of Rs. 1,83,555/- and a further sum of Rs. 3,000/- on October 23, 1951. That is, according to the plaintiff he had advanced a total sum of Rs. 1,86,555/-. Towards this account, the defendant is stated to have paid between April 8, 1950 and November 17, 1951, a sum of Rupees 1,95,848/-. Thus the defendant had paid an excess amount of Rs. 9,293/-. The plaintiff claimed that on September 16, 195l, at the request of the defendant, he transferred the entire liability of Rupees 42,547/-, outstanding in the account of K. M. Karandikar and Company, to the personal account of the defendant. After giving credit to the sum of Rs. 9,293/- paid in excess by the defendant in respect of his personal account, the plaintiff claimed that Rs. 33,254/- remained due to him. The plaintiff also claimed a sum of Rs. 15,000/- from the defendant under clause 6 of the agreement stated to have been entered into by him and the defendant in September 1950. But it is not necessary to consider this claim for Rupees 15,000/- as the same had been rejected by both the Trial Court and the High Court. Further it was not pressed on behalf of the plaintiff in this court on September 29, 1969, when the appeal was heard on a former occasion. The plaintiff also claimed a sum of Rs. 13,990/6/ being interest at 9 per cent on the various loans advanced by him from time to time. The plaintiff accordingly filed Original Special Suit No. 47 of 1953 claiming the above amounts.