(1.) THIS is an appeal from a judgment and decree of the High Court of Judicature at Bombay passed in its appellate jurisdiction dated October 4, 1945, in part reversing and in part confirming a decree of that Court passed in its ordinary original civil jurisdiction on December 22, 1944.
(2.) THE main question in this appeal is whether the appellant, who was the plaintiff in the suit, and the respondent, who was the defendant, were partners hi a restaurant business, or whether the defendant was an employee of the plaintiff in the business entitled to a share of the profits as remuneration for his services. THE appellant also claimed from the respondent a sum of over Its. 8,000 alleged to be due in respect of food and other necessaries supplied to the respondent and his family from the business. This last claim failed in both the Courts in India and has not been raised before the Board. At the trial Bhagwati J. held that the defendant was an employee of the plaintiff; the appeal Court held that they were partners. Bhagwati, J.
(3.) AT the date when the purchase was effected the appellant was a marine engineer employed by the Merchant Steam Navigation Co. , Ltd. , and Was frequently at sea. The respondent had been engaged for many years in the catering business but had met with reverses, and in 1935 a decree of the High Court had been passed against him under which he was liable to pay a sum of approximately Rs. 900 for costs. In the litigation in which this decree had been passed the said B. D. Engineer, then an articled clerk of the respondent's solicitors but afterwards an advocate, had acted for the respondent, and a friendship had sprung up between them. On the occasion of the purchase of the Pioneer Restaurant, Engineer, on the suggestion of the respondent, acted both for him and the appellant, and thereafter he continued to help the parties in the business of the restaurant. It is the respondent's ease, which was supported by Engineer in the witness box, that the purchase of the restaurant was made by the appellant and the respondent in partnership, the share of the appellant being one-third, and the share of the respondent being two-thirds, and that the documents were all to be in the name of the appellant in order to conceal the interest of the respondent from his creditors. It is the case of the appellant that he was the proprietor and the respondent was his manager on the terms mentioned in Ex. A.