T B MODY Vs. GHANSHYAM J SANGHRAJKA

JUDGEMENT

(1.) THE plaintiffs were partners with the father of the defendants at a given point of time. Among other things, the firm was dealing in dry cells. Defendants' father retired from the firm with effect from 1-7-1976. Consequently, accounts were taken as on 30-6-1976. In such an account, it was found that the firm had incurred loss and about Rs. 15,000/- and odd would be the share of loss to be borne by each of the partners as on 30-6- 1976. In that circumstance, the plaintiffs issued notice to the defendants as their father had since died calling upon the defendants to make good the loss. Defendants took the plea in the reply notice that they were not liable to make good any loss incurred in the business of their father as they had not inherited anything from him. THEy also stated that the loss incurred on account of non-saleability of the dry cells should be debited to the account of the supplier and not to that of the partners and, therefore, they were not liable to make good the amount demanded. THE suit filed as the result of the defendants' stand for recovery of Rs. 15,756-47 together with interest thereon in the Court of the VIII Additional City Civil Judge, Mayo Hall, Bangalore, in O.S. 4217/1980, came to be dismissed on the sole ground that the firm had not paid the cost of the dry cells supplied to it by the manufacturers and, therefore, there would be no real loss which is required to be recovered. THE plaintiffs had succeeded in establishing other facts pleaded, on which issues were raised. THE fact that the cost of the dry cells outstanding in favour of the suppliers is not paid out is an admitted fact. That suit in that behalf between the firm or its former partners is pending is also not disputed. That the plaintiffs did not disclose the defence they had taken in the suit filed by the suppliers of dry cells for recovery of the cost is also not disputed. It is in that circumstance that the trial Court, though holding in favour of the plaintiffs on other issues, refused to grant a decree on the ground that there was no real loss sustained on the date of the suit. We are in agreement with the conclusion reached by the trial Court.

(2.) HOWEVER, Mr. Raghavan strenuously contended before us that once the accounts were closed as on 30-6-1976, the loss became crystallised and the erstwhile partner is liable to make good the loss falling to his share and that fact has been overlooked by the trial Court and, therefore, this Court should interfere with the judgment and decree of the trial Court. We do not think that is the right approach. Loss should be actual and sustained and not notional and only on the balance-sheet. There- fore, we reject the appeal. Appeal is rejected