ARVIND Vs. SRI ANAND

JUDGEMENT

(1.) THIS appeal, filed Under Section 96 read with Order 41, Rule 1 of the Code of Civil Procedure, is directed against thejudgment and decree dated 28.02.1997 passed by the then CivilJudge, Bailhongal in O.S. No.39/1993 decreeing the suit filed by the respondent herein and directing the appellant to pay a sum of Rs.2,56,4127- to the plaintiff together with current interest at 18% per annum from the date of the suit till the date of the decree and future interest at 12% per annum from the date of decree till the date of realization.

(2.) THE respondent herein was the sole plaintiff and the appellant herein was the sole defendant in the Trial Court. For the sake of convenience, we shall refer the parties herein with reference to their ranking in the Trial Court.

(3.) THE facts relevant for the purpose of adjudication of above point and, which are admitted and have remained undisputed are as under: THE plaintiff and the defendant are cousins. THE plaintiff and the defendant along with 12 others started a partnership business under the name and style of "M/s. Lakshmi Cotton Pressing Factory" at Bailhongal as per the partnership deed dated 01. 11.1978. During the early part of 1985, certain differences arose between the partners and six, out of the 14 partners, expressed their desire to retire from the firm and to get their accounts settled. As they could not amicably settle the dispute among themselves, the dispute was referred to a Board of Arbitrators comprising of four Arbitrators. THE Arbitrator passed an award dated 20. 10. .1985 fixing the value of the share of the retiring partners in the assets and the good-will of the firm and also their capital investment in the firm and indicated as to which of the continuing partners shoulu pay the amount so determined payable to the retiring partners. According to the terms of the said award, the plaintiff, defendant and two other partners were fastened with the liability of paying the amount so determined as payable to the six retiring partners and they were required to pay the said amount in to equal half-yearly installments i.e., on 30.01.1986 and 30.07.1986 with further stipulation that if the amount is not paid in two installments it shall carry interest at 18% per annum compounded quarterly. As a security for payment of this amount, a charge was created on the assets as well as the plant and machinery of the partnership firm. THE Arbitrators filed the said award into the Civil Court to make it the 'Rule of the Court' and upon filing of the arbitration award, Arbitration Case No. 1/1987 on the file of the Additional Civil Judge, Bailhongal, came to be registered and after hearing the parties, the award passed by the Arbitrator was made the decree of the Court as none of the parties objected to the terms of the award. After the six partners retired from the partnership, partnership was reconstituted and continued by the remaining partners. As the amount determined by the Arbitrators, which culminated into the decree of the Civil Court, was not paid by the judgment-debtors within the time allowed, the decree holders sued out Execution No. 101/1987 and sought for attachment and sale of the properties of the partnership for the realization of the decreetal amount. Pursuant to the order of the Executing Court, the properties of the partnership firm were attached and were brought for sale. At that juncture, the plaintiff who was also one of the judgment- debtors, paid the entire decreetal amount and satisfied the decree. Upon payment of the entire decreetal amount, the execution was closed as fully satisfied. THEreafter, the plaintiff issued a notice to the defendant calling upon him to pay his share of the decreetal amount and since the defendant did not comply with the same, the plaintiff filed the present suit. According to the plaintiff, the other two judgment debtors who were also jointly made liable to pay the decreetal amount, subsequently transferred their right and interest in the partnership firm in his favour towards their share of the amount due. THE defendant, in his written statement, took up a contention that the plaintiff did not pay the decreetal amount from out of his own money, but, on the other hand, he satisfied the decree from out of the income derived from the partnership assets, the income derived from the joint family properties which are in the management of the plaintiff and his father and therefore, the plaintiff is not entitled for recovery of the amount claimed in the suit by way of contribution from the defendant. In the light of the pleadings of the parties, the Trial Court framed the following issues: "1) Whether the Plaintiff proves that Defendant owes to him a sum of Rs. 4,84,771/- arising out of E.P.No. 1001/1989 on the file of this Court? 2) Whether the rate of interest claimed by the Plaintiff is proper? 3) What decree or order?" In support of his claim, the plaintiff got himself examined as P.W. 1 and marked Exs.P. 1 to P.24. On the other hand, the defendant got himself examined as D.W. 1 and examined one Dundappa Gurulingappa Morabad as D.W.2 and got marked Exs.Dl to D3. THE Trial Court, after hearing both sides and on appreciation of the oral as well as the documentary evidence answered issued no. 1 partly in the affirmative holding that the plaintiff is entitled to recover a sum of Rs. 2,56,412/- inclusive of interest up to the date of the suit being the 1/4th share of the amount paid by the plaintiff to satisfy the decree and on issue no.2, held that the plaintiff is entitled to current interest at 18% per annum and future interest at the rate of 1 2% per annum from the date of the decree till the date of realization, For holding so, the Trial Court observed that the defendant has failed to prove that the plaintiff and his father have been in possession and management of any joint family properties; that the defendant has failed to prove that the plaintiff was in possession of any money due to defendant and mere fact that the defendant has a share in the assets and the business of the partnership firm, cannot be a ground to withhold the liability due under the decree to which he along with the plaintiff was jointly and severally liable to satisfy the decree and, therefore, the plaintiff is entitled 'for recovery of the 1 / 4th share from the defendant by way of contribution. Being aggrieved by the said judgment and decree of the appeal, the defendant has preferred this appeal.