MARISAMI BROTHERS BY ITS MANAGING PARTNER M. MARISAMI Vs. BLUEMOUNT SWITCHGEARS ASSOCIATES (PTE.) LTD., REPRESENTED BY ITS MANAGING DIRECTOR S. PALANISWAMI AND ORS.

JUDGEMENT

(1.) DEFENDANTS 4 to 9 wore partners carrying on business as Messrs. Ramakrishna Metal and Alloy Industries, the 2nd defendant. The fourth defendant was also the sole proprietor of the third defendant, namely, Messrs. General Pump Factory. It is the common case of both sides that subsequent to the events which have taken place constituting the cause of action of the plaintiff, the businesses of the second and third defendants were taken over by the first defendant.

(2.) BEFORE dealing with the contentions raised in the present appeal, it is necessary to set out certain facts as providing the background for instituting the suit which gave rise to the second appeal. The managing director of the first defendant filed O.S. No. 1243 of 1959 for recovery of a sum of Rs. 2,302 -99 from the plaintiff in the suit. The plaintiff also filed O.S. No. 1419 of 1959 against all the defendants in the present suit for production of their accounts of sale etc,, for the period from 1st February, 1957, for appointment of a Commissioner to examine the accounts and for arriving at the amount due to the plaintiff, including damages and for ordering the defendants in that suit to pay the amounts so found due by the Commissioner. Since we are concerned only with the latter suit, namely, O.S. No. 1419 of 1959, a reference; to the facts in that case is necessary and relevant. The case of the plaintiff in that suit was that he was the sole canvassing agent of defendants 2 and 3 for the sale of pumps manufactured by them and he was so appointed by a letter dated 1st February, 1957, under which he was entitled to a commission of 5 per cent. in respect of the sales effected by or through him and an overriding commission of 2 1|2 per cent. on all the sales effected by defendants 2 and 3 over certain areas specified in that letter. The defendants resisting the claim inter alia contended that the letter dated 1st February, 1957 was a forgery. In that suit, the trial Court framed several issues and three of them are necessary they being Issues 3, 4 and 5 and they are as follows:

(3.) ON appeal, preferred by the defendants, the learned Subordinate Judge of Coimbatore reversed the judgment and decree of the trial Court and dismissed the suit of the plaintiff. As far as the contention regarding res judicata was concerned, the Court came to the conclusion that the suit of the plaintiff was barred by res judicata in view of the decision in O.S. No. 1419 of 1959. With regard to Exhibit A -1 the learned Judge came to the conclusion that that was a forged document in the sense that on 1st February, 1957, it was not in existence and that it was brought about subsequently in collusion between the fifth defendant and the plaintiff and that it was not binding on the defendant. The plaintiff has filed the present Second Appeal against this judgment and decree of the learned Subordinate Judge.