SWAMINATHA CHETTIAR Vs. NAGALINGAM CHETTIAR

JUDGEMENT

(1.) This is a second appeal against the decree and judgment of the learned Subordinate Judge of Kumbakonam modifying those of the learned District Munsif of Velangi-man at Kumbakonam in O. S. No. 139 of 1945.

(2.) The first respondent filed the suit for accounts of a dissolved partnership. A preliminary decree was made on the 10th July 1946 upholding that the partnership was dissolved on 15th September 1944 and that the accounts of the partnership should be taken from 3rd February 1943 to 15th September 1944. Subsequent to the decree, a Commissioner had been appointed and he submitted a report. Various objections were taken to the Commissioner's report by both the parties. It is not necessary to consider all the objections raised, (sic) we are concerned in the second appeal only with four of such objections.

(3.) The first objection is that the learned Subordinate Judge was wrong in disallowing compensation for collections made by the defendants. The Commissioner in his report stated that the defendants should be given 1 1/2 per cent of the collections as charges. The learned District Munsif held that the defendants did not incur any expenses in regard to the collections and, therefore, they are not entitled to any collection charges. With this view, the learned Subordinate Judge agreed. Mr. Gopala-swami Aiyangar contended that the defendants had taken a grave risk in supplying the goods to old constituents who owed sums to the partnership business, and that they did so only because they felt that that was the only method by which they could collect the amounts. He further stated that by so doing, in effect, the defendants credited the amounts subsequently paid by the constituents against earlier debts, with the result that the debtors of the partnership business became their own debtors. But there is the other side of the picture. It is not suggested, nor there is any evidence in the case, that the constituents were in involved circumstances and that the debts and out-standings would have to be written off. Indeed there is no evidence in this case to establish that the defendants, because of the course adopted by them, lost any money on that account. The defendants, who continued the business, necessarily would hot give up the earlier constituents. The continuance of the business and its prosperity would depend upon their keeping earlier constituents and carrying on the business with them. In the circumstances of the case, what the defendants did was really to their advantage. The business they were carrying on in partnership with the plaintiff, they continued. There is also no evidence in the case to prove that the defendants had spent any additional amounts for the purpose of collecting the amounts due to the partnership before the plaintiff left it. In the circumstances, I agree with the court below that there is no justification for giving compensation towards the alleged charges incurred by the defendants.