B KANJIBHAI Vs. MOHANRAJ RAJENDRAKUMAR

JUDGEMENT

(1.) Civil Revision Application No. 585 of 1968 is filed by the petitioners who were original defendants Nos. 1 to 5 in a Civil suit No. 3787 of 1966 filed by the plaintiff opponent M/s. Mohanraj Rajendrakumar for recovery of Rs. 1415.68 the price of goods sold by the latter to the former. It was the plaintiff opponents say that the deceased Kanjibhai Jethabhai was running a partnership firm under the name and style of M/s. B. Kanjibhai. It was a cloth business done at Bombay. The deceased owed to the opponent the said amount for the price of the goods sold etc. The defendants Nos. 2 to 5 i.e. the present petitioners were partners by holding out of the said firm M/s. B. Kanjibhai defendant No. 1 (petitioner No. 1) and hence they were liable for the suit amount. They had also claimed over and above the said amount Rs. 73.50 by way of interest and Rs. 25/as notice charges. In all the suit claim was for Rs. 1514.18.

(2.) Civil Revision Application No. 586 of 1968 is filed by the same petitioners who were the original defendants Nos. 1 to 5 in a summary Suit No. 3786 of 1966 filed by the plaintiff opponent M/s. Chimanlal Nathumal for recovery of Rs. 1 480 in all. The allegations made by that opponent in that suit were also that the deceased Kanjibhai was running a partnership firm under the name and style of M/s. B. Kanjibhai which did cloth business at Bombay. The deceased Kanjibhai owed to the opponent Rs. 1 384 the price of the goods sold by the latter to the former. The defendants Nos. 2 to 5 were liable for the suit claim as they were partners by holding out of the said firm defendant No. 1 (petitioner No. 1). Rs. 70/were claimed by way of interest and Rs. 25/as notice charges. Both these suits were filed by different plaintiffs against the same petitioners in the Small Causes Court at Ahmedabad.

(3.) In those suits the petitioners filed their appearance and sought for leave to defend. The petitioner No. 2 Bhanubhai had filed affidavit on his behalf as well as on behalf of the alleged firm (petitioner No.1). Other petitioners had also filed their affidavits and in those affidavits these petitioners had set out their defence. The two important grounds of defence were that the business run by the deceased Kanjibhai was a sole proprietary concern and it was not a partnership business. That Kanjibhai had died. The petitioners No. 2 to 5 were not the partners of the said firm and they never held out as partners of the said firm. The suit transaction was entered into with the agent of the plaintiff opponent at Bombay who had full authority to sell the goods of the plaintiff at Bombay. There was no necessity of condition of getting it confirmed with the plaintiff at Ahmedabad; the transaction having been entitled into at Bombay and delivery having been given at Bombay and money had to be paid at Bombay to Shankerlal the Ahmedabad Court has no jurisdiction to entertain and hear the suit. The heirs of the deceased amongst besides defendants Nos. 2 3 and 4 were other heirs including Induben. The suit is barred on account of non joinder of parties also. The defendant No. 5 who is the wife of defendant No. 2 is not the heir of the deceased Kanjibhai and the plaintiff had joined her as defendant No. 5 and hence there is a misjoinder of parties. Similar is the position in Civil Revision Application No. 585 of 1968.