MADAN GOPAL KANODIA Vs. MAMRAJ MANIRAM

JUDGEMENT

(1.) Civil Appeal No. 707 is the plaintiff's appeal by certificate granted by the Allahabad High Court against its judgment and decree passed in First Appeal No. 252 of 1963, dated July 10, 1962 (sic). The defendants-respondents have also filed their Appeal No. 708/68 for recovery of Rs. 10,000/- from the plaintiff.

(2.) The plaintiff had brought a suit in the Court of the First Civil Judge, Kanpur for recovery of Rs. 39,956/5/- from the defendants on account of three main items. The plaintiff's case was that he was carrying on wholesale cloth business at Kanpur in the name and style of Anant Ram Madan Gopal. The defendants' firm was also carrying on cloth business at Kanpur and the defendants' firm was known as Mamraj Maniram. The plaintiff's case further was that apart from certain business dealings, the defendant firm used to borrow monies from the plaintiff on various occasions and used to purchase cloth from the plaintiff on credit. Similarly the plaintiff also purchased the cloth from the defendants' firm and used to send bales of cloth to the defendants' firm for retail sale. Badri Prasad one of the partners of the defendants' firm was a close friend of the plaintiff: they were on very good terms and each of them was willing to co-operate with the other in carrying on the business of the two firms. The plaintiff's case further was that some time in April, 1948, both the plaintiff and the defendants' firm had purchased 400 bales of cloth from M/s. Sidh Gopal Gajanand of Bombay. Out of the total goods the plaintiff had purchased 200 bales and the remaining 200 bales had been purchased by the defendants' firm. The plaintiff further averred that the purchase of the entire quantity of 400 bales was actually a joint venture, though both the plaintiff and the defendant's firm ordered separately for the same, the plaintiff having paid the money through the defendants' firm. The plaintiff further alleged that the goods were received at Phaphooned and were brought to Kanpur in the trucks through the employees of the plaintiff as also the defendants and were unloaded and dumped in the shop and godown of the defendants as the plaintiff's godown was not sufficient to contain the huge quantity of the goods purchased from the Bombay firm. Thereafter the modus operandi was that the bales of cloth belonging to the plaintiff as also to the defendants were sold through Harish Chandra Bagla who was the commission agent and who arranged for purchasers of the bales of cloth belonging to both the parties. A large number of invoices regarding the goods sold were prepared at the defendants' shop and after the purchases were arranged by Harish Chandra Bagla the defendants used to send their peons or bill collectors to realise the money and give delivery to the purchasers. Thereafter the defendants used to pay the sale proceeds of the cloth belonging to the plaintiff to him. Unfortunate friction between the two friends resulted from the fact that the defendants having sold 21 bales of cloth did not pay the price thereof to the plaintiff in spite of several demands. It was also pleaded in the plaint that the defendant Badri Prasad admitted having sold 21 bales by mistake and asked the plaintiff to debit the cost of the cloth to his account and accordingly an amount of Rs. 21,686-11-3 being the price of 21 bales of cloth was debited in the account books of the plaintiff in the name of the defendants. This was the first item which was claimed by the plaintiff in his plaint. It was further alleged that the plaintiff had sent cloth worth Rs. 8,824-8-3 for being sold by the defendants on behalf of the plaintiff which was actually sold by the defendants through Ramesh Chandra Jagdish Prasad of Naughada, but the plaintiff was not paid the price thereof. The third claim related to a sum of Rs. 3,819-14-6 which is said to have been borrowed by the defendants from the plaintiff. The plaintiff further claimed a sum of Rs. 5,625-3-0 being the interest at the stipulated rate of -/10/- (ten annas) per cent. per month on the three items mentioned above. Thus the total amount sought to be recovered by the plaintiff from the defendants came to Rs. 39,956-5-0.

(3.) The suit was contested by the defendants, who inter alia, pleaded that they had not at all sold 21 bales of cloth as alleged by the plaintiff nor was the purchase of 400 bales a joint venture or enterprise entered into between the plaintiff and the defendants, nor were the goods brought from Phaphoond and unloaded in the godown of the defendants. The defendants further denied all the allegations made by the plaintiff and submitted that the plaintiff had purchased 200 bales of cloth from the Bombay firm and had paid for the same separately and had sold the same through Harish Chandra Bagla. The defendants, however, admitted that they had also bought 200 bales of cloth from M/s. Sidh Gopal Gajanand which were also sold through Harish Chandra Bagla and in fact the entire cloth was unloaded in the shop of Harish Chandra Bagla situated in Morayawala Gola in the city of Kanpur. The defendants also averred that the accounts of the plaintiff were, wrong and fabricated as would be evidenced from the fact that a sum of Rs. 10,000/- had been paid by the defendants to the plaintiff for which no credit was shown in the account books of the plaintiff. The defendants, however, admitted that there were some monetary transactions between the plaintiff and the defendants relating to borrowing of monies from time to time which were shown in the account books of the defendants.