NAVINCHANDRA JETHABHAI Vs. MOOLCHAND SADARAM GINDODIYA

JUDGEMENT

(1.) ***

(2.) THE next question is whether the suit is barred by time. The court below has applied Article 115 of the Limitation Act which is for compensation for the Brach of any contract, express or implied, not in writing registered and not there specially provided for. It the suit were not only for damages for the breach of the contract of partnership, this Article would indeed apply, though the important question would be that of the starting point of the period. The third column which regulation would be that of the starring point provides that the time shall run from the date the contract is broken and in the case of the successive breached when the breach finally ceases. A suit for account and share of profits of a dissolved partnership is governed by Article 106 which provides a period of three years fro the date of dissolution of the partnership. The learned Judge in Paragraph 43 of the his judgment has observed that the time commenced to the run from the 28th of April 1953, because the plaintiff admitted in this cross - examination - 'matter went wrong between in us since 28th April 1953. Since the said date disputes arose between the parties. Since the end of April 1953 Glabhchand was not allowed to take part in the doing of the firm". He also relies on the admission of Shah in he his cross - examination in paragraph 4 that the defendant told him at the end of April 1953 that he didn't want to talk that to him, and by about 25th April he earnest that attempts were being made to have the tender in the defendants name only. If in this case there was a contract of partnership between the plaintiff and the defendant, the mere refusal of the defendant to associate the plaintiff agent with the partnership work would not necessarily determine the starting point of limitation. The plaintiff need not, merely of because of this dispute, terminate the contract and sue for damages for breach of the contract. Section 3 of the India Contract Act enables the plaintiff to terminate the contract or to continue it by this acquiescence. In the present case, is spite of the defendant's refusal to associate the plaintiff agent with the work of the contract, the plaintiff insisted onto continuance of the officers and this did by the protesting to the officers regarding the transfer of the contract to the name of the defendants, and ultimately he go it transferred in favor and firm as late as July in the sense to the that he got it decided that the contact belonged to the firm. In this case, having regard to the fact that the partnership was for particular venture, as long as the venture did not end, the plaintiff was in a position to continue the contract ands of it breach if he was otherwise entitled to sue on that basis. We may also point out that the defendants had in fact never denied the existence of the partnership except on the 4th of October 1953 in reply to the plaintiff suit having been filed onto 1st of October 1956 was with three years from the date of the denied of the plaintiff rights. We asked Mr. Abyankar to the show as any denial on the part of the defendants of the plaintiff right prior to that the date but he was not able to show any. He referred us to the evidence of the defendants at pages 57 and 58 of the paper book, but t shows that the only refused to execute the deed. There is nothing to show that the he ever, denied the existence of the partnership. Similarly the plaintiff admission at page 21 of the paper Book does not the show that the denial of the partnership was made to him prior of the that date. Reliance was also placed by Mr. Abhyankar to the support his contention on Ex. 139 dated 28th September 1953 which his client wrote to the Executive Engineer where in the he alleged that servile terms were not settled, and therefore the partnership deed could not be executed. Even here there in clear-cut denial oft existence of the partnership. Secondly, a copy of the letter was not to the plaintiff ad thirdly eve this letter reached the Executive Engineer's officer on the 1st October 1953 as shown n by the Inward No. Written in red ink as on that letter. The suit having been filed on the 1st of the October 1956 - even under the assumption of that the this letter, finished causes of the action of the plaintiff, of which he knew nothing - it would be within time. We hold that even it the suit were for compensation for breach of the contract for the partnership, it would not be barred by the firstly because there was no denial of the partnership of till the 4th of October 1953 even if new denial furnished the only causes of action, though in our view, the period commenced on the date on which the Government terminated the contract.

(3.) THE question is whether the suit can be regarded as barred under Article 106 of the Limitation, Act. Having regard to the what we have stated above, it is clear that the partner ship would stand dissolved when the contract was rescinded by the Government, since admittedly the partnership was for this particular venture. The defendants himself admits that the partnership, was in respect him of this venture only if therefore it is a suit for the accounts of the dissolved firm , then since of the dissolution of the could be only on the 9th of April 1954 of by reason of the Ex 180 the period of the suit would limitation will start from that the and the suit would evidently be in time. Further discussion will show that this is a suit of such nature. We must, therefore, hold that the suit is within time.