GOWARDHAN BAXIRAM Vs. BHAWANI PRASAD DINARAM

JUDGEMENT

(1.) THIS Letters Patent appeal by the defendant (No. 1) from a decision of Tare J. arises out of a suit filed by the respondent Bhawaniprasad for recovery of Rs. 1,290 as damages from the appellant Gowardhan and two other persons Ratansingh and Uwarajsingh.

(2.) THE appellant Gowardhan (defendant No. 1) admitted that he was a partner of the plaintiff in the lac extraction business. He, however, denied the allegations about the forcible removal of lac and about his assisting in any way Ratansingh and Uwarajsingh in taking away the lac. He raised the objection that the plaintiff's suit as against him was not maintainable and the only course open to the plaintiff was to file a suit for accounts of the partnership business.

(4.) In holding that the suit was maintainable the learned District Judge as well as the learned single Judge was influenced mainly by the fact that the plaintiff's suit was for damages for tortious acts of Ratansingh and Uwarajsingh, which had been abetted by the appellant. Even if the appellant helped Ratansingh and Uwarajsingh in the removal of the extracted lac, that would not make the plaintiff's suit sustainable as against the appellant. The true position is that a suit for recovery of goods of the firm or for damages for their loss or injury has to be brought in the name of the firm or by all its members. If any partner declines to join in such a suit, he is then made a pro forma defendant. The plaintiff's suit is clearly not one on behalf of the partnership -firm, and the appellant was not made in it a pro forma defendant. If a partner retains any partnership property for himself contrary to the terms of partnership agreement, then he is bound under section 16 of the Indian Partnership Act to account for it to the firm, and this accounting can be done only in a suit for accounts.