CHATURBHUJ DURGADAS FACTORY Vs. DAMODAR JAMNADAS ZAWAR

JUDGEMENT

(1.) This is an appeal by the plaintiff Chaturbhuj Durgadas Factory at Dharangaon against the dismissal of its suit by the Court of the Civil Judge, Senior Division, at Jalgaon, District East Khandesh. The suit was for recovering Rs. 25,000 and costs from defendant No. 1 and defendants No. 2 to 5 in respect of certain dealings between the plaintiff and a cloth shop named Jamnadas Radhakisan Shop, which according to the plaintiff was of the ownership of the deceased father of defendant No. 1 Jamnadas Jugaikishore, of defendant No. 1 Damodar and of Vithaldas Jamnadas, the deceased brother of defendant No. 1, and of defendants Nos. 2 to 5. There was another cloth shop belonging to the defendants and that was named Bhagirath Gangadhar, but we are not concerned in this case with latter shop. The original partners of Jamnadas Radhakisan were Jamnadas Jugalkishore, father of defendant No.1, Radhakisan Jankidas, the father of defendants No. 3 to 5, and it would appear that this shop was being managed by Radhakisan Junkidas and as managing partner he borrowed from the plaintiff Rs. 5,000 and passed a pro-note for that amount on 18th December 1925. On 25th February 1926, Radhakisan took a further loan of Rs. 700 for the purpose of Jamnadas Radhakisan shop and it would appear that in respect of certain purchases of ghee and grass an amount of Rs. 13 was debited in the plaintiff's account against the shop of Jamnadas Radhakisan on 13th June 1926. It would seem that the plaintiff factory also purchased from time to time certain clothe from the defendants' cloth shop, totalling an amount of Rs. 579 and odd inclusive of interest. Some time in 1927 Jumnadas, the father of defendant No. 1 along with his two sons Vithal and Damodar (Defendant No. 1.) filed Special Suit No. 853 of 1927 against the managing partner Radhakisan Jankidas and his two sons Bhagirath and Gangadhar for dissolution of the two shops belonging to them and a preliminary decree was passed in that suit declaring that the partnership was dissolved as from 1st October 1927. On 7th November 1927, on the application of the plaintiff Jamnadas and with the consent of the defendants in that suit, Jamnadas Jugalkishore was appointed a receiver of both the cloth shops belonging to the defendants and it would appear that very wide powers were conferred on the receiver under O. 40, Rule 1, of the Civil Procedure Code. On the 22nd March 1929, the receiver made up an account of the advances together with the interest due to the plaintiff and after deducting the price of the cloth purchased by the plaintiff from the defendants' cloth shop, and paying an amount of Rs. 1,085 towards plaintiff's dues on that day, a balance of Rs. 5,500 was found due to the plaintiff and the receiver executed a pro-note in favour of the plaintiff on the same day and that pro-note is Exhibit 57. Then on 21st February 1932, accounts were again made and an amount of Rs. 225-15-0 seems to have been paid to the plaintiff on that day and for the balance of Rs. 6,900 a pro-note in favour of the plaintiff was duly executed by the receiver Jamnadas and that pro-note is Exhibit 58. On 19th January 1935, accounts were taken again, an amount of Rs. 257-5-9 was paid and for the balance of Rs. 8,775 the receiver executed a fresh pro-note in favour of the plaintiff on that day and that pro-note is Exhibit 59. Then again, on 2nd January 1938 accounts were made by the receiver in respect of dues of the plaintiff and an amount of Rs. 324-1-3 was paid on that day and a fresh pro-note came to be executed which is Exhibit 60. It would appear that the payment of Rs. 324-12-3 was endorsed on the previous pro-note (Exhibit 59). On 21s December 1940, accounts were again made between the plaintiff and the receiver and, on the same day, a promissory note was passed by the receiver in favour of the plaintiff in respect of the dues found payable to the plaintiff totalling an amount of Rs. 13,936-12-0 and that pro-note is Exhibit 65. The fact that accounts were taken on 21st December 1940 appears also from the endorsement on the earlier pro-note (Exhibit 60). On 25th November 1943, Rs. 100 were paid by the receiver to the plaintiff and the fact of this payment was endorsed on Exhibit 65, the pro-note dated 21st December 1940, and that endorsement is signed by Jamnadas as receiver. There was a further payment of Rs. 100 made by the receiver to the plaintiff on 24th October 1946, and that was also endorsed on Exhibit 65 and that was singed by Jamnadas as receiver. It would appear that after these two payments, on 1st March 1949 a final decree came to be passed in Special Suit No. 853 of 1927 for dissolution of partnership, filed by Jamnadas Jugalkishore, but the receiver was not discharged but was continued. Thereafter on 4th October 1949, an amount of Rs. 50 was paid by the receiver Jamnadas to the plaintiff and he endorsed that payment on the pro-note (Exhibit 65) and he signed that endorsement but did not describe himself as receiver. In 1950, Jamnadas Jugalkishore, the receiver, died. As moneys due to the plaintiff in respect of the pro-note (Exhibit 65) were not paid by defendant No. 1 as well as the other defendants, the plaintiff gave a notice to the defendants on 30th June 1951, which is Exhibit 75, and filed the present suit on 3rd October 1951. The plaintiff based the present suit on the pro-note executed by the deceased Jamnadas on 21st December 1940 (Exhibit 65) and claimed that the suit was in time against the defendants by virtue of the three payments made by Jamnadas. He, however, made an alternative claim that in case the suit on the pro-note was held to be not maintainable, he based the claim on the original debt and it was alleged that in view of the various pronotes executed by the deceased Jamnadas Jugalkishore and also in view of the acknowledgment of debt made by him by making part payment from time to time, in respect of which endorsements were signed by him, the suit would be in time. It is however, worth noting that so far as the plaintiff's claim on the original debt is concerned, that was subsequently restricted by he plaintiff in the course of the hearing of the suit against defendant No. 1 only (Ex. 96).

(2.) The suit was resisted by the defendants on several grounds, but for the purposes of this appeal it is necessary to note only three defences. It was contended in the first instance that Jamnadas Jugalkishore was a receiver and had no authority to execute pro-notes or acknowledge debts as a receiver. Secondly, it was also contended that the repayments alleged to have been made were not actually made. It was further contended that the payment of Rs. 50 by Jamnadas on 4th October 1949 was not made by him as a receiver because that payment was made after the final decree and Jamnadas was not thereafter a receiver. It was therefore contended that that payment of Rs. 50 did not save limitation. So far as defendant No. 1 is concerned, in respect of the claim on the original debt made against him, he also urged that Jamnadas had executed pro-notes and endorsed the payments in his capacity as a receiver and had expressly excluded his personal liability to pay the debt and, therefore, according to defendant No. 1, he would not be liable to the plaintiff on the original debt.

(3.) The trial Court held that the plaintiff proved the pro-note (Exhibit 65) dated 21st December 1940 and also the payments and acknowledgments made by the deceased Jamnadas as mentioned in the pro-note. It came to the conclusion that the deceased Jamnadas was not a receiver of the shop 'Jamnadas Radhakisan' on 4th October 1949. It also held that Jamnadas as a receiver had no authority to pass pro-notes, to renew them and to acknowledge the liability and to make part payments as alleged by the plaintiff. It, therefore, held that the plaintiff's suit was not in time so far as it was based on Exhibit 65. But as against defendant No. 1, the trial Court gave a finding that the plaintiff's suit was within limitation so far as the suit was based on the pro-note (Exhibit 65). So far as the plaintiffs suit on the original debt was concerned, it was held that the suit was not maintainable and was not in time even regarding defendant No. 1. As I have already pointed out, the plaintiff ultimately confined his claim on the original debt against defendant No. 1 only. In view of these findings, it was held by the trial Court that none of the defendants was liable to pay the suit claim and consequently dismissed the plaintiff's suit. That is why the plaintiff filed the present appeal against the dismissal of his suit by the trial Court.