ANJANEYULU Vs. RAMA KRISHNA TEXTILES

JUDGEMENT

(1.) Defendants 2 to 4 in O.S. No. 390 of 1971 on the file of the Second Additional Subordinate Judge's Court, Vijayawada, have filed this appeal against the judgment and decree in that suit granting a decree in favour of the plaintiff for a sum of Rs. 17,493-27. The first respondent herein filed that suit for recovery of a sum of Rs. 21.651-17. The case of the plaintiff which is a registered firm carrying on business in clothes as Pedhee at Bombay is that the defendants formed a partnership in the name and style of Sri Lakshmikanth Textiles. All the defendants are partners of the firm carrying on business at Vijayawada. The defendant purchased goods from time to time from the plaintiff Under the terms of the contract the defendants agreed to pay interst and commission at 1% per mensum on the amount due to the plaintiff On 16th October, 1963 there, was a settlement of accounts and it was fouad that the defendants are to pay the plaintiff a sum of Rs. 25,000 They agreed to pay the sum with interest at 88 paise per, month and further agreed to pay 1% commission and executed a pronote in the plaintiff's account book, The first defendant signed the account book on behalf of the firm as partner. Subsequent to the settlement the defendants made several payments and after giving credit to these payments a sum of Rs 14,911.25 is due towards principal, together with interest at 88 paise per month and commission at 1% the total amonnt payable to the plaintiff is Rs 21, 651.17. It is sufficient to refer to the contentions of defendants 2, 3 and 4 who alone are the appellants here. They contended inter alia that they ceased to be partners with effect from 4th September, 1968 and hence they are not liable to pay any amount under a settlement arrived at after their retirement. It was further contended that the plaintiff was not entitled to any commission. Lastly it was contended that the Court at Vijayawada has no jurisdiction to try the suit. It is unnecessary to set out the other contentions as these three contentions alone are pressed before me. The Gourt below held that it had jurisdiction to by the suit. It found on the evidence that defendants 2 to 4 bad not satisfactorily established that they retired from the partnership business prior to the settlement and that the settlement was not binding upon them. It was also found that under the settlement the defendants had agreed to pay commission also in addition to interest. It however found that the amount claimed included commission as well as interest on commission and a sum of Rs. 1,000 which had been paid on 4th September, 1968 was not deducted from the suit claim. The Court below disallowed a sum of Rs. 4,157-90 for these items and held that the plaintiff was entitled to recover Rs. 17,493-27.

(2.) In this appeal Sri Rajeswara Rao, the Counsel for the appellants has raised the following contentions. (1) The gub-Court, Vijayawada has no jurisdiction to try the suit. (2) Defendants 2 to 4 ceased to be partners on 4th September, 1968 and are not liable to pay any amount. (3) In any event the lower Court ought to have held that the plaintiff was not entitled to commission. Btfore dealing with these contentions seriatim a few facts relating to the course of business as disclosed in the evidence may be set out. The defendants who are carrying on business as a firm at Vijayawada had dealings with the plaintiff's firm which was carrying on business at Bombay. The defendants indicate to the plaintiff the goods which they are interested buying from them. Accordingly the plaintiff purchased the goods locality and sold them in turn to the defendants. The plaintiff does not act as a broker but there is a direct sale by the plaintiff in favour of the defendants.

(3.) In the bills prepared by the plaintiff it is stated that interest is chargeable at 9% on the amount payable by the defendant for the value of the goods. Further it is the case of the plaintiff that the mills where from the plaintiff purchases goods charge commission from the plaintiff at 1% per month if the plaintiff does not pay the amount within 5 months and hence plaintiffs charge commission from the defendants This fact is however not mentioned in the bills. The commission is calculated after a lapse of certain period on the total amount of unpaid purchase money together with interest. On 16th October, 1968, there was a settlement of accounts and the total amount due was worked out. The settlement of accounts is evidenced by Exhibit A-2 which is an entry at page 33 of the ledger of the plaintiff relating to the defendants. It shows the total amount due as per the bills and gives credit to some payments made. The debit items entered in commission bills are also meationed.