T. RAMANUJALU NAIDU Vs. S. ANJAPPA AND ANOTHER

JUDGEMENT

(1.) The plaintiff in O.S. No. 2102 of 1963 on the file of the City Civil Court, Madras is the appellant. The plaintiff filed a suit in forma pauperis for recovery of possession of his lorry MSY 4892 in specie, which is admittedly left in the possession of the first defendant, and for rendition of accounts and for costs. In the course of the trial of the suit, the plaintiff gave up his prayer for rendition of accounts. His suit for recovery of possession of the lorry is based on the following facts. It appears that the plaintiff was the owner of lorry, MSY 4892 which was under a hire purchase with one Rickobdas Chordia. The plaintiff was unable to pay the instalment due and payable under the hire purchase contract to the said Rickobdas. It appears that he approached the first defendant to solve his problems by paying off the hire purchase -bolder and to obtain the necessary transfer of the lorry in favour of a partnership firm called Sri Anjaneyaswami Lorry Service, which the plaintiff along with the first and second defendants intended to start by then. According to the plaintiff, it was pursuant to the said understanding, he handed over Exs. B -9 to B -12 to the first defendant so that he could make the necessary applications to the appropriate motor vehicles authorities for obtaining the transfer as contemplated by the parties. It is also the plaintiff's case that after the first defendant paid off Mr. Rickobdas, the lorry was left in the possession and custody of the first defendant but with the avowed object of using it for purposes of the partnership business which was to be run in conjunction with the lorry. APC 273 belonging to the first defendant, which the first defendant also agreed to provide as one of the assets of the partnership for running the partnership business as above. The complaint of the plaintiff is that the first defendant did not take any steps to obtain a transfer of licence or the permit in favour of the partnership, but was prolonging the issue. In or about 1st September, 1957, differences arose between the parties, and, it appears that, the running of the lorries belonging to the plaintiff and the first defendant for the benefit of the partnership was stopped. Thereafter, the plaintiff, after issuing the necessary notice to obtain reliefs and for the asserting of his rights, and having failed, instituted O.S. No. 858 of 1958 on the file of the City Civil Court, Madras for accounts and for other reliefs. There also, the allegation was that there was a partnership by name, Sri Anjanevaswami Lorry Service and the assets of the partnership consisted of the lorry belonging to the plaintiff as above as also the lorry of the first defendant as described hereinbefore, and that the first defendant did not render a proper account of the partnership business, and therefore, the suit was laid far accounts of the partnership business and for appointment of a Commissioner for ascertaining the share of profits of the plaintiff in the said business. The defence of the first defendant in that case was that the trial Court had no jurisdiction to entertain the action and that he is the owner of the lorry, APC 273 of which he is the proprietor, and he denied that be was a partner in the lorry transport service. That suit can be laid by a partner when the partnership itself is Illegal and, in that sense, that suit was dismissed, but the trial Judge made the following observations; "In the light of the principles laid down in M. Hiria Gowder v/s. Naga Maistry : A.I.R. 1957 Mad. 620 the plaintiff is not entitled to ask for accounts, though it was open to him to claim the balance of the purchase price or re -delivery of the lorry on his making good the sums advanced as disclosed in the first defendant's ledger. But, for reasons better known to himself, the plaintiff took up the matter in appeal, Under Ex.A -20, Mr. S. Ganesan, Principal Judge of the City Civil Court (as be then was) again reiterated that the question whether the plaintiff would be entitled to recover the balance of the purchase price or to recover the lorry on payment of the advances made by the first defendant is left open. He, however, dismissed the appeal on the technical ground that the suit was not maintainable. This judgment of the appellate Court was rendered on 19th November 1963. Before he filed the appeal, but after the first Court rendered its judgment, apparently taking advantage of the observations made by the trial court, the plaintiff filed the present action in forma pauperis on 10th September 1962 seeking for the reliefs already staled. The learned trial Judge, in this action, once again relying upon Varadarajulu Naidu v/s. Thavasl Nadar, 1963 II M.L.J. 20 dismissed the suit as not maintainable. In his view, as the parties Intended to trade in licence, the Partnership itself is void ab initio, and therefore, the plaintiff was not entitled to recover even his own lorry MSY. 4892, from the first defendant in specie in view of the ratio in the above decision. We may, in passing, refer to the written statement filed by the first defendant in the present action. His case is that the plaintiff transferred possession of the lorry only for the purpose of securing the moneys advanced to the plaintiff by the first defendant both at the time when he cleared the debt in favour of Rickobdas and also towards the subsequent advances made by him to make the vehicle roadworthy. He has added that it was agreed that if the plaintiff repaid the advances made by him in respect of the lorry together with interest at 12 per cent per annum, the lorry would be re -delivered to him. He, however, denied the partnership. He would accuse the plaintiff as having removed all the papers from the first defendant's place of business at Punganur, but would conclude by saying that the delivery of the lorry in specie could only be against payment of a Sum of Rs. 11,000/ - together with interest which amount the first defendant claimed to have advanced to the plaintiff. The second defendant is sailing with the first defendant.

(2.) As we said already, the Court found that it had jurisdiction to entertain the suit, but, following the decision in Varadarajulu Naidu v/s. Thavasi Nadar, 1963 II M.L.J. 20 found Issue 2 against the plaintiff, and the Court was of the view that the plaintiff was not entitled to recover the lorry MSY 4892 from the first defendant. The Court also held on Issue 5 that the suit was in time as it was land soon after the judgment was rendered in O.S. No. 858 of 1958, City Civil Court...(sic) dismissed. It is as against this, the present appeal has been filed.

(3.) Learned counsel for the appellant rays that the dismissal of the suit, in the circumstances stated above, is not warranted. He would also bring to our attention a Full Bench decision of our court reported in Kanniappa Nadar v/s. Karuppiah Nadar, 1962 II M.L.J. 109 (F.B.) and would urge that, in the circumstances of the case, though the parties intended to engage themselves in an illegal partnership, yet at the time when they forged to act in that way, their idea to apply for transfer of the permits in a manner known to law and thereafter enter into the concerted act of the partnership business can, by no stretch of imagination, be termed to be an illegal object and if this were to be upheld, the claim for restitution of the property of the one party which is, admittedly, in the possession of the other, who all joined together in such a venture, is certainly maintainable and the suit ought not to have been dismissed in limine on that ground. We may at once state that the ratio in Varadarajulu Naidu v/s. Thavasi Nadar, 1963 II M.L.J. 20 has been reversed by the Supreme Court in a judgment reported in Visvanatham Pillai v/s. Shanmugam Pillai, 1969 I M.L.J. 86 (S.C.). There, the Supreme Court succinctly observed that the view that only an owner should have a permit to enable him to carry on business of motor vehicle operation, is an erroneous view. They also observed that in India, benami transactions are recognised and not frowned upon, and there is nothing in the Motor Vehicles Act which expressly or by implication bars benami transactions or persons owning buses benami and applying for permits on that basis. Applying this principle, this Court, in the judgment in K.E. M. Mohamed Ibrahim Marcatr and another v/s. Perumal Padayachi, A.S. 568 of 1967 to which one of us was a party, held that transactions in which persons engaged them selves initially to apply for transfers of permits from the motor vehicles authorities so as to latterly engage themselves in motor vehicles operations as a partnership business would not be void ab inito. We need not, however, expand this concept since the proposition arising in this case according to us, has been well settled, even before the Supreme Court rendered its decision as above, by a Full Bench of Our Court reported in Kanniappa Nadar v/s. Karuppiah Nadar, 1962 II M.L.J. 109 (F.B.).