HARIVALLABH CHHOTALAL NAGORI Vs. AHMEDALI RAJABHAI KADIANI

JUDGEMENT

(1.) The contention made out by Mr. Hathi the learned advocate for the appellant is that the mortgage transaction was quite an independent one and whatever the amount was advanced thereunder was advanced to the defendant personally and not in the capacity of his being a partner of a partnership firm and that any such advance made under the mortgage deed had nothing to do with the partnership business He further urged that even if it was advanced for partnership purposes a suit such as the one for the amount advanced to the defendant under a mortgage deed can still lie as neither it is barred by any provision of law nor under any terms of contract either under the mortgage deed or the partnership deed between the parties. It will be open according to him to defendant to file a suit for dissolution of partnership and rendition of general accounts and the decree passed in this suit can well be accounted for therein. Now both the Courts have found that the amount though advanced to the defendant personally under a mortgage deed it was advanced for partnership business and for that the defendant had made himself liable for the same. That finding of fact cannot be challenged before this Court in second appeal. It has therefore to be seen as to whether with that finding it is open to him to file a suit for recovering the amount under the mortgage deed.

(2.) Now one fact is clear that having regard to the terms of the mortgage deed Ex. 8 as also the terms of the partnership deed Ex: 5 entered Into between the parties no bar is created against the plaintiff filing such a suit for recovering any amount advanced to the defendant either in his personal capacity or even as a partner of the firm. Besides the mortgage deed does not in any way recite any condition to have the claim thereunder only adjusted in the settlement of accounts of the partnership. Another fact to be kept in mind is that besides the defendant and the plaintiff there was one another person Daudbhai as a partner in the firm. He is not a party either to the mortgage deed or a party to the suit The transaction of mortgage was an independent one inasmuch as it created liability for the amount taken by him in his different capacity and not as a partner of the firm and again for the benefit of the firm In that the other partner Daudbhai had nothing to do and he would not be liable for the same. At the same time apart from authority. it is clear that there Is no provision in the Partnership Act which totally forbids any such suit against one of the partners under a different transaction even though It has some relation to the partnership business in which event that amount may have to be taken into account while taking general accounts. In such circumstances it is difficult to say that this suit was not maintainable. In this connection I may well refer to material observations from Lindley on Law of Partnership 11th Edition at page 668. Those observations run thus : Again if one partner gave to his co-partner a bill or note which was in such a form as to bind not the firm but the partner who gave it he might be sued by his co-partner thereon what-ever the state of the account between the two might be and although the bill or note in question had reference to some partnership transaction; for by giving the bill or note the demand in respect of which it was given was isolated from the general partnership accounts.

(3.) Mr. Hathi has referred to some decisions in support of such a proposition and I would refer to them In the case of Govula Ramkistiah p. Yerram Yellappa A. I. R. 1959 Andhra Pradesh 653 it was held that: