RAM ADHAR Vs. RAMA KIRAT TIWARI

JUDGEMENT

(1.) These two second appeals have been filed by plaintiffs of suit Nos. 457 of 1970 and 53 of 1971 against the same defendant, namely, Ram Kirat Tiwari who is respondent in this Court. The two suits were consolidated and after their trial together they were disposed of by a common judgment dated Sept. 30, 1972. Both were decreed. In two separate appeals filed by the defendant, these suits were dismissed by the lower appellate court by a common judgment dated Nov. 30, 1973.

(2.) The case with which the plaintiffs came to court was that they were manufacturers of bricks and the defendants used to purchase it from them. The defendant had purchased bricks worth Rs. 2000/- from each of the plaintiffs and had executed separate Sarkhat in their favour in which he had also agreed to pay interest at the rate of 1% per mensem. Since he had not paid the price of the bricks for the amount of interest, the plaintiffs were compelled to file the suits for the amounts due to them. Initially it was averred in the plaint of suit No. 53 of 1971 that the two plaintiffs carried on the business of manufacturing bricks in partnership. By an amendment a further allegation was made that the two plaintiffs used to divide bricks manufactured at the bricks-kiln equally after contributing to the expenses incurred in the manufacture and thereafter became owners of their separate shares of bricks which they used to dispose of separately, in the dealings after the separation of the bricks one had no concern with the other.

(3.) The pleas that the defendant took in the two suits primarily were that he used to make payments to the two plaintiffs from whom bricks were purchased by him periodically and the transactions between them were incorporated in the account books. He had made all payments and nothing was due from him. The Sarkhats had been executed by him for the satisfaction of the plaintiffs during the period awaiting settlement of account. It was also pleaded that the plaintiffs were carrying on business in partnership and that the suit was barred under Section 69 (2) of the Partnership Act. Both suits, as noticed earlier were consolidated.