GOPASUNDAR SABATHO Vs. CHUNILAL

JUDGEMENT

(1.) These two first appeals arise out of two suits Nos. M. S. 4 and 7 of 1948 instituted on 18-11-46 and 9-8-47 respectively. The suits were heard together and were covered by the same Judgment of the trial Court, Sri S.B. Satapathy, Additional Subordinate Judge of Berhampur, delivered on 15-12-48. First Appeal No. 35/49 arises out of M. S. No. 4/48 in which the plaintiffs Chunilal and Parameswarlal claim a total sum of Rs. 11,000/-constituted by the principal sum of Rs. 679/- plus interest of Rs. 2,342/- and house rent of Rs. 57/-, against defendant Gopasundar Sabatho on the allegations that plaintiffs 1 and 2, who are uterine brothers, and the defendant had dealings in salt on considerable scale and had mutual good-will. The plaintiffs have their shop at Berhampur while the defendant belonged to Nuapada where he had salt business on a very large scale. Defendant Sabatho wanted to carry on Jaggery business in Berhampur and he having no shop at Berhampur requested the plaintiffs Chunilal-Parmeswarlal to help in jaggery business, On 16-11-43 defendant Sabatho consigned 1936 blocks of gur from Anakapalli and by a letter requested the plaintiffs to finance him to release the railway pass from the Imperial Bank of India. On 19-11-43, the defendant himself came to Berhampur, borrowed a sum of Rs. 8,304 and odd from the first plaintiff's son Iswardas. Iswardas made an entry to that effect in the account book of the plaintiffs Chunilal-Parmeswarlal. Defendant Sabatho further wrote a letter on 2011- 43 stating that he had borrowed Rs. 8,304 and odd from the plaintiffs and gave the R/R requesting the plaintiffs to take delivery of the said 1936 blocks of Jaggery by paying the railway freight of Rs. 309-5-0. The plaintiffs' version is that these blocks of Jaggery were taken delivery of from the railway station by Iswardas (son of plaintiff No. 1) and kept in the godown of the plaintiffs for which the defendant was to pay house rent. Defendant Sabatho used to come and sell the Jaggery for himself and the plaintiffs had nothing to do with the sale of the jaggery. On 3-9-44 the Civil Supply Department seized 500 blocks of defendant's jaggery under the Hoarding and Profiteering Prevention Ordinance (35 of 1943). A prosecution was started which culminated in the conviction of the accused and the 500 blocks were forfeited to the Government. The defendant not having paid the said amount which he took merely as a loan, the plaintiffs brought the suit for recovery of the amount of Rs. 8,679/-with interest at 9 per cent. per annum the total claim being Rs. 11,000/-.

(2.) The defence taken by Sabatho is that the parties had mutual good-will and were carrying on salt business in extensive scale. The defendant having wanted to deal in jaggery at Berhampur obtained the consent of the plaintiffs and on 16-11-43 sent 1936 blocks of Anakapalli gur to Berhampur; the cost price of the gur was Rs. 9,690-12-0; the defendant having paid Rs. 1,390-12-0, the vendor was directed to draw a Hundi on the Imperial Bank of India for the balance amount of Rs. 8,300/-. On 19-11-43 defendant Sabatho came to Berhampur, took the sum of Rs. 8,300/from the first plaintiff's son Iswardas, released the Hundi and directed the plaintiffs to take delivery of the gur on payment of railway freight of Rs. 309-5-0. The plaintiffs having paid the said freight took delivery of gur on 20-11-43, on which date the defendant had written a further letter to the plaintiffs to keep the gur in their godown and dispose of the same according to the market rate. Indeed the defendant was to remain liable for the profit and loss. The plaintiffs were trustees and agents of the said gur kept in their custody and, in fact they were selling the gur from time to time. The plaintiffs Chunilal-Parmeswarlal have not explained the accounts for the said gur.

(3.) On 3-9-54, the Enforcement Supervisor of Supplies seized blocks of Anakapalli gur and some 1500 blocks of Parlakimedi gur from the plaintiffs' shop. Criminal Case No. 196 of 1944 was lodged in the Court of the S. D. M., Berhampur under Section 13(1) of the H. P. P. Ordinance against Iswardas and defendant Sabatho. The defendant was discharged and Iswardas was convicted and the 500 blocks of gur were forfeited to the Government: The important part of the defence version is that in fact as the parties had dealings in salt of considerable quantities the defendant used to keep regular accounts of the said business in the ordinary course of business, the accounts were current, mutual and open. In that account the said sum of Rs. 8,679/- that is, the sum advanced by the plaintiffs and the freight charges were accounted for towards the credit of the said plaintiffs, and the defendant had never taken the sum of Rs. 8,300/- and odd by way of a loan. There was no stipulation for payment of interest whatsoever. The amount was advanced towards mutual dealings of the parties and was so accounted for in the mutual accounts. The suit therefore is bound to fail, according to defendant Sabatho.