VARSHA ENGINEERING PRIVATE LIMITED Vs. VIJAY TRADERS

JUDGEMENT

(1.) Varsha Engineering Private Ltd. was a partnership Concern in the year 1967. Messrs. Vijay Traders was also a partnership Concern Both. partnership concerns had their offices at Baroda. They both entered into an agreement Exhibit 112 on 17/09/1967 Varsha Engineering Co. wrote a letter to Vijay Traders and by that letter an agreement between the parties came into existence. M/s. Vijay Traders defendant No. 1 came to be appointed as Distributors of Varsha Diesel Engines for the territories of Nasvadi Tilakwada Sankheda Chhota Udepur and Jambu Gam talukas of Baroda District. We will refer to the terms and conditions as and when it would be necessary.

(2.) . It appears that on 2-2-1972 by notice Exh. 109 the plaintiff claimed a sum of Rs. 51 486 plus interest at 12% and according to the plaintiff that was the amount due in the running account by the the purchases made by the defendant. Thereafter on 3-3-1972 suit was filed to recover a sum of Rs. 69476-89. According to the plaintiff a sum of Rs. 51 486 was due and that was the principal amount while Rs. 17 990 interest calculated at the rate of 12% Defendants Nos. 2 to 5 were joined as according to the plaintiff they were the partners of defendant No. 1. According to the plaint filed reference was made to the fact that defendant No. 1 was appointed as Distributors and in paragraph 4 of the plaint it was stated that on various occasions by putting orders defendant No. 1 had purchased the goods worth Rs. 51 486 and that amount was due together with interest. It was further stated in the plaint that the defendants agent had written a letter dated 17-3-1969 and by that letter payment was made and therefore the suit was within limitation.

(3.) . Defendants Nos. 1 to 4 filed written statement at Exh. 20. That written statement was filed on 6-4-1972. Defendant No. 5 filed written statement at Exhibit 22. That written statement was also filed on 6-4- 1972 Defendant No. 5 had taken up the contention that he was not the partner of defendant No. 1. Defendants Nos. 1 to 4 denied their liability and also stated that the suit was time barred. According to the written statement filed no amount was paid by any partner by letter dated 17-3-1969 and according to the defendants the plaintiff had wrongly credited Rs. 2 500 on 17-3-1969 as if paid by some person and by such an unauthorised entry the plaintiff according to the defendants tried to bring the suit within limitation. Thereafter the plaintiff filed two applications for amending the plaint. The first application is Exhibit 35. That was presented on 20-9-1972. Another application. was presented for amending the plaint and that is Exhibit 42. That application was presented on 27-11-1972. The learned Civil Judge by an order dated 26-2-1973 allowed plaint to be amended. We may state here that some of the amendments were carried out. However by amendment application Exh. 42 though paragraph 7A was to be added that amendment was not carried out. By the amendment the plaintiff tried to make out a case that the relationship between the parties was that of principal and agent. Ultimately the learned Civil Judge (S. D.) framed issues at Exhibit 51. He came to the conclusion that the suit was barred by law of limitation. He also came to the conclusion that defendant No. 1 did not act as commission agent and he was not liable to render accounts. He also came to the conclusion that it was not established by the plaintiff that the defendants had to pay a sum of Rs. 51 486 as principal and Rs. 17 990 interest. In view of these findings the learned Civil Judge dismissed the suit. The plaintiff has filed the appeal.