M S SURESH Vs. K V SUDHAKAR

JUDGEMENT

(1.) This appeal is by the plaintiff, whose suit came to be dismissed. The plaintiff filed O.S. No. 3134 of 1981 in the Court of the First Additional City Civil Judge, Bangalore. The suit was filed to recover a sum of Rs. 58,583-82 p. said to be due to the plaintiff by the defendant. The plaint averment was that the defendant was carrying on business at the address given in the cause title. The defendant had, according to the plaintiff, in the course of the business carried on by him had become due to the plaintiff a sum of Rs. 11,844-94 p. Later, the defendant worked for plaintiff from 8-4-1978 to 8-9-1978, while he continued to run his separate business. During the period a further sum of Rs. 25,888-00 had become due to the plaintiff by the defendant. Thereafter the defendant expressed his inability to work with the plaintiff and continued his own business from 9-10-1978. The account was completed between the plaintiff and the defendant and the defendant acknowledged his liability to continue by executing an agreement. The agreement entered into and the accounts stated between the plaintiff is stated to have been produced with the plaint as document No. 1. It is alleged further that the defendant had agreed in the said agreement to pay a sum of Rs. 750/- per mensem towards the amount acknowledged by him due to the plaintiff. Plaintiff having failed despite his several attempts to receive the amounts so due filed the suit for recovery of the same.

(2.) The defendant resisted the claim denying the allegations of the plaintiff. Before filing the written statement, it must be observed by us that, certain particulars were called for by the defendant. Plaintiff failed to furnish those particulars. There afterwards, the written statement was filed. In that written statement the defendant denied that he had executed any such agreement as was referred to as document No. 1 in the plaint. He denied that, the allegations in Para 2 of the plaint were absolutely false. He denied that the defendant was carrying on any business on 12-10-1981 on the date of the plaint and the address given in the cause title. He denied that he had any sum owing to the plaintiff in the course of business alleged to have been carried on between the defendant and the plaintiff. He pleaded that the suit was not maintainable. As filed there could be no suit on accounts based on agreement as pleaded by the plaintiff. On the other hand the defendant pleaded that he and the plaintiff were partners and it was agreed between them to utilise the scientific knowledge of the defendant and the working knowledge of the plaintiff to run the business. No name was given to the partnership firm and it was not registered. An agreement of partnership was, however, drawn up and the same was with the plaintiff. No copies were kept by the defendant. He alleged that the plaintiff had brought the suit falsely. The partnership accounts were with the plaintiff. That the defendant believed in the bona fides of the plaintiff and did not very much press at the relevant time for copy of the agreement and/or the copy of the account of the partnership kept by the plaintiff. It was for this purpose that the particulars were called for which had not been furnished. He further pleaded that, in the period in question the defendant would give equipments valued at Rs. 20,000/- and the plaintiff would supply the raw materials to the extent of Rs. 20,000/- and the profits from such venture should be tendered under equal proportions. He, therefore, claimed that in addition to the equipment a sum of Rs. 25,000/- was agreed to be paid to the defendant as development fees. Therefore, the defendant contended in the written statement that it was the plaintiff who was due certain amount to the defendant only and on account of lack of funds he could not make a counter-claim by paying the required court-fee. He denied the other allegation in the plaint and set out the details as to how the business transactions between the defendant and the plaintiff was not successful and the defendant was forced to abandon the unregistered partnership.

(3.) On such pleadings the Court below framed as many as eight issues and they are as follows : (1) Whether the plaintiff proves that the defendant had account with the plaintiff ? (2) Whether the plaintiff proves that the defendant has become due in a sum of Rs. 11,944-94 during the course of the business carried on by the defendant ? (3) Whether the plaintiff proves that the defendant worked for the plaintiff from 8-478 to 8-9-78 and during that period has become due to the plaintiff in a sum of Rs. 25,888/- ? (4) Whether the plaintiff proves the agreement as alleged in Para 5 of the plaint ? (5) Whether the plaintiff is entitled to claim 10% interest from 9-10-78 to 31-9-1981 ? (6) To what relief the plaintiff is entitled to ? (7) Does the defendant prove that they began to trade as partners and that it was an unregistered partnership ? (8) Is the suit not maintainable on account of the parties trading in partnership without registration of the firm ?