KANHAIYALAL VISHWAMBHERDAYAL AGRAWAL Vs. MUKTILAL RAMESHWARDAS NAREDI

JUDGEMENT

(1.) The appellant, in the present appeal, has questioned the legality of the judgment and decree dated 16-7-2001 passed by the First Additional District Judge, East Nimar, Khandwa in Civil Suit No. 9B/2001, to the extent that the counterclaim for Rs. 3,72,000.00 filed by the appellant-defendant has been dismissed.

(2.) The facts of the case in brief are that the appellant and the respondent were both partners in a firm M/s. Naredi Goel Auto Services, Civil Lines. Khandwa. By a deed of dissolution (Ex.P/7) dated 16-6-91 the appellant-defendant retired from the firm with effect from 31-3-1991 and the respondent-plaintiff became the sole proprietor of the firm from 1-4-1991. On 23-7-1991 (Ex.P/8) some of the amounts to be paid to the appellant as a result of the dissolution were settled in the presence of one Basant Kumar who also acted as a guarantor on behalf of the appellant-defendant. Thereafter, the respondent-plaintiff filed a suit for accounts and for recovery of a sum of Rs. 27,731.71 with interest against the appellant-defendant and Basant Kumar Agrawal, who was impleaded as defendant No. 2.

(3.) The appellant-defendant initially filed a counter-claim on 21-11-94 for accounts and for his share on dissolution and in addition prayed that the plaintiffs suit for a sum of Rs. 27,732.71 be dismissed. However, subsequently the counter-claim was amended on 29-3-2000 and a relief of a decree of Rs. 3,72,000.00 with interest at the rate of 24% from 1-4-91 was incorporated. It was alleged by the appellant-defendant in the counter-claim that subsequent to the dissolution of the firm vide the deed dated 16-6-91 and pending finalization of accounts, both the partners had agreed in the presence of Basant Kumar Agrawal on 23-7-91 that the respondent/plaintiff shall pay a sum of Rs. 1,50,000.00 to the appellant/defendant against the book value of the pump, tanker and other stocks apart from the sum that would be found due to the appellant-defendant on finalization of accounts. It was also agreed that a sum of Rs. 75,000.00 deposited in the name of Rameshwar, father of the respondent-plaintiff, would also be paid to the appellant-defendant. It is alleged that admittedly the accounts of the firm were finalized as per the Chartered Accountant's Report dated 13-10-1991 in which a sum of Rs. 2,97,725.24 was shown as due to the appellant-defendant. As the respondent-plaintiff did not pay this sum of Rs. 2,97,725.24 as well as the agreed sum of Rs. 75,000.00 standing in the name of Rameshwar to the appellant-defendant he was constrained to file the counterclaim.