SHRIRAM SARDARMAL DIDWANI Vs. GOURISHANKAR ALIAS RAMESHWAR JOHARMAL

JUDGEMENT

(1.) THIS is an appeal by the original Plaintiff Shriram Sardarmal Didwani, against the judgment and decree of the Additional District judge, Khamgaon, in Civil Suit No. 16-B of 1952, dismissing with costs his suit against the Defendant Gourishankar for the recovery of the principal amount of Rs. 9,368-2-3, together with interest amounting to Rs. 2,051-1-0. In the plaint it was alleged that the Plaintiff and his brothers Satyanarayan and Ratanlal, who are sons of one Surajmal, formed a joint Hindu family, that the Plaintiff Shriram who is the manager of this joints Hindu family, has filed the suit as manager and that the plaintiff had been adopted by the brother of Surajmal. In the plaint it is also alleged that this joint Hindu family was carrying on business in the name of the firm "gangaram Premsukh" at Khamgaon and that the Defendant's family was carrying on business in the name of "mitanandji Joharmal'' shop at Fattekhedi. The Defendant was adopted into the family of Mitanandji in 1938. There were dealings between the plaintiff's shop and the Defendant's shop for several years before 1938. Accounts between the parties were checked in Diwali 1948 A. D. when Rs. 1,630-7-0 were found due from the defendant. As defendant's shop did not possess a foodgrain licence and as there was a foodgrain licence in the name of Jainarayan Narsingdas, the paternal uncle of the defendant before his adoption into the family of Joharmal, defendant and Shrikisan, another paternal uncle of his, made the plaintiff open a separate khata in the name of Jainarayan Narsingdas on the 12-5-1949, and asked the plaintiff to close the khata of "mitanandji Joharmal" and further instructed that the amount of Rs. 540 standing to the debit of the defendant in the khata of "mitanandji Joharmal" should be transferred to the account of Jainarayan Narsingdas. At the end of Diwali 1949 Rs. 8,428-9-6 were found due from the defendant to the shop of the plaintiff which liability was admitted by the defendant. From Diwali 1949 to Diwali 1950 the defendant made transactions with the plaintiffs shop but in the account of Jainarayan Narsingdas, At the Diwali of 1950 the liability of Rs. 6,088-2-3 was verified and admitted by the defendant. Later, Shrikisan was prosecuted in connection with his grain trade and for giving bribes. On the 3rd February 1951, therefore, defendant and Shrikisan came to the plaintiff and asked that the account standing in the name of Jainarayan Narsingdas in which Rs. 5,368-2-3 were to the debit of defendant should be transferred to the khata of "mitiuiandji, Joharmal" to be reopened in that name. On that date, it is also the case of the plaintiff, that Rs. 4,000 were given by way of a loan to Shrikisan the paternal uncle, before adoption of the defendant and at his instance. The plaint, therefore, claimed that the liability of the defendant on that date was of Rs. 9,368-2-3. A suit was, therefore, filed to recover this amount together with interest at Re. 1 per cent per mensem, which according to the plaint, was the agreed rate.

(2.) THE defendant Gourishankar in his original written-statement did not contest the allegation of the plaintiff that the plaintiff and his two cousin brothers Satyanarayan and Ratanlal formed a joint family, but the plaintiff's claim was disputed on merits. All the allegations in the plaint regarding the liability of the defendant were denied. According to the defendant, apart from the purchase of small quantities of grain from the plaintiff's Khamgaon shop there were no other kinds of dealings or transactions between the plaintiff firm and the Kirana shop of the defendant, and according to the defendant no amount remained unpaid to the plaintiff for such dealings. The allegations made in the plaint regarding the various adjustments were all denied. It was further pleaded that Jainarayan and Shrikisan had no authority to have dealings on behalf of the defendant and that they had no authority or necessity to borrow any money from anybody on behalf of the defendant. They had also no authority or power to start a new business. According to the defendant he was staying at Amravati and never went to the plaintiff on 3-2-1951 as alleged in the plaint. It was also contended that the claim of the plaintiff was not in time. The defendant also resisted the suit on the ground that even if the liability for the alleged dealings was proved by the plaintiff, the dealings were in respect of foodgrain trade without 11 licence by the defendant and that, therefore, the suit should he dismissed as the dealings were contrary to public policy.

(3.) BEFORE the evidence of witnesses was taken, defendant gave an application for amendment of paragraph 1 of his written-statement wherein he had stated that he did not wish to contest the allegations made in the plaint in paragraph 1 (A) and 1 (B) of the plaint that the plaintiff and his two cousin brothers Satyanarayan and Ratanlal had formed a joint Hindu family which carried on business in the name of "gangaram Premsukhdas". In spite of the objections of the plaintiff, on the 20th January 1954 the application for amending the written-statement was allowed by the Court which also ordered that Rs. 25 be paid as costs and Rs. 39 be paid as costs on account of the presence of the witnesses.