PATEL VINUBHAI NATHUBHAI Vs. THAKKAR JAYANTILAL CHHAGANLAL

JUDGEMENT

(1.) . In this second appeal the substantial question of law as framed by this court is that when the suit is for a specified amount due at the foot of partnership accounts whether a decree for rendering partnership accounts could be passed at law without there being any prayer for it in the plaint. The plaintiff had filed a suit for recovery of Rs. 5901.08 P. due to him from the defendant. The said amount was claimed on the basis of the partnership accounts between the parties having been settled and at the foot of accounts a net profit of Rs. 11 702 16 P. was arrived at which was to be equally divided between the plaintiff and the defendant. The plaintiff claimed that the defendant after agreeing to pay to him half the amount of the net profit at the foot of the accounts had done back on his words and had failed to pay the amount legally due to him.

(2.) . The defendant took up a stand that he was not liable to pay the said amount or any other amount as according to him there was no partnership between him and the plaintiff and he even went to the extent of saying that he did not know the plaintiff at all. However copious evidence was led before the trial court-both documentary as well as oral - which showed that in fact the plaintiff and the defendant were running a business called Gita Lodge. The plaintiff also produced several note books (Exhs. 18 to 34) which he claimed to be in the hand writing of the defendant from which the plaintiff wanted the court to infer that the accounts were in fact settled between the parties on the dissolution of the partnership.

(3.) . The Trial court held that the alleged accounts represented by the aforesaid note books (Exhs. 18 to 34) were written at random and did not show as to who incurred the expenses how and when the amounts were spent or received. The Trial Court also held that it is not proved that the said note books were in the hand-writing of the defendant. The Trial Court even did not believe the plaintiff as regards the existence of partnership.