PATEL JAYANTILAL KANTILAL Vs. PATEL JOITARAM LAXMICHAND

JUDGEMENT

(1.) THIS is an Appeal preferred under Section 100 of the Code of Civil Procedure by the plaintiff in Regular Civil Suit No.85/1983 against the judgment and order dated 13th April, 1992 passed by the learned Extra Assistant Judge, Mehsana in Regular Civil Appeal No.108/88.

(2.) THE appellant -plaintiff instituted the above referred Regular Civil Suit No.85/1983 in the Court of learned Civil Judge (J.D.), Siddhpur for recovery of a sum of Rs.4,000=00 and the interest of Rs.1,800=00. According to the plaintiff, the plaintiff and the defendant, the respondent herein were partners in one M/s.Dhanwantray P. and Co. at Unjha. The partners in the said firm agreed to dissolve the firm and to handover the management of the firm to the plaintiff. However, on 8th November, 1979 the plaintiff and the defendant entered into an agreement (Exh.61). It was decided that the said firm be dissolved with effect from Kartak Sud 1, Samvat Year 2036 (commencement of Samvat Year 2036 and the date prior to the date of the agreement) and that the dissolution deed be drawn within a year at convenience. The defendant became the manager and the owner of the said firm and that he would be responsible for any profit or loss of the firm. In consideration the defendant agreed to pay Rs.2,000=00 to the plaintiff every year. It was also agreed that the said arrangement shall continue till some new arrangement was made. Pursuant to the said agreement, the defendant did pay a sum of Rs.2,000=00 to the plaintiff at the end of the Samvat Year 2036. Since then, he discontinued the payment. The plaintiff, therefore, claimed such annual payment for the Samvat Year 2037 (ending on 28th October, 1981) and Samvat Year 2038 (ending on 16th November, 1982) and the interest. The suit was contested by the defendant by written statement Exh.12. The defendant did admit the suit agreement Exh.61. He also admitted the payment of Rs.2,000=00 for the Samvat Year 2036. He, however, denied his liability to pay the suit sum of Rs.5,800=00 on the premise that the plaintiff had committed breach of agreement in as much as he had started the business in the same commodity i.e. tea and that he had made illegal use of the trade -mark.

(3.) THE learned Civil Judge, by his judgment and decree dated 22nd August, 1988, dismissed the suit. According to the learned Civil Judge, the suit agreement was a contract without consideration and was not a completed contract. The suit agreement, therefore, was not enforceable in Court of law. Feeling aggrieved, the plaintiff preferred the above referred Regular Civil Appeal No.108/1988 in the Court of learned District Judge, Mehsana. The Appeal was heard and decided by the learned Assistant Judge. The learned Assistant Judge was pleased to dismiss the Appeal by impugned judgment and order dated 13th April, 1992. The learned Assistant Judge was pleased to hold that the suit agreement was a completed contract and was enforceable at law. The learned Assistant Judge also held that the defendant was liable to pay a sum of Rs.2,000=00 to the plaintiff every year. However, in the opinion of the learned Assistant Judge the partnership firm M/s.Dhanwantray P. and Co. was not a registered firm. The suit against the unregistered firm or its partner was not maintainable. Reliance was placed on Section 69 of the Indian Partnership Act, 1932. Therefore, the present Appeal. The Appeal is admitted to final hearing and the following substantial question of law has been framed: -