XAVIER Vs. AUGUSTI

JUDGEMENT

(1.) These are two Second Appeals by the same individual, who is the second defendant in two suits, O. S. 13 of 1124 and O. S. 6 of 1124, S. A. 518 of 1958 arising out of the former and S. A. 519 of 1958 out of the latter. The suits were instituted by different plaintiffs, to enforce payment of the balance due to each on account of the price of articles supplied to the first defendant, relief being claimed against the second defendant also, on the ground, that the supply was to a partnership of which defendants 1 and 2 were the partners. The second defendant denied, that there was any such partnership as alleged, and contended that he could not be made liable. At this stage, it is sufficient to state, that when the matter came up in second appeals on a prior occasion, the erstwhile Travancore-Cochin High Court decided the issue as to partnership in favour of the plaintiffs, but raising an issue as to "whether the transactions sought to be enforced in the two cases leading to these second appeals were entered into in a manner expressing or implying an intention to bind the firm", remanded the two cases for fresh disposal. The two Courts have now decided this issue also in favour of the plaintiffs. The only question is whether these findings require to be reopened.

(2.) The District Judge on appeal considered the matter under three heads, first whether the purchases were made by the first defendant on behalf of the partnership, second whether they were made as a partner and third, whether they were made in the usual course of business of the partnership. It has been found and it was not disputed before me that the purchases by the first defendant were of building materials. The deed of partnership Ext. I discloses, that the partnership was formed for the construction of buildings. At the time of the purchases the first defendant was engaged in the construction of some buildings in the palace grounds, which was well within the purview of Ext. I. As the Judge has found, the materials were purchased by the first defendant for this construction. P. W. 7, the plaintiff in O. S. 13 of 1124, has given evidence in support of this. So the two outstanding facts which have been established and which were relied on are, that building materials were purchased by the first defendant, a partner, and that they were used for the business of the partnership.

(3.) Then it was contended, that such purchases on credit, amounted to borrowing and were not in the usual course of business of a non trading partnership of the character evidenced by Ext. I. In my opinion, purchase of materials for carrying on the business of the partnership even on credit is in no sense analogous to borrowing. As observed by Lindley on Partnership, 11th Edition, Page 197,