RAGHUNATH SAHU Vs. TRINATH DAS

JUDGEMENT

(1.) This is an appeal by the defendants against the judgment and decree of the Subordinate Judge, Nayagarh, in O. S. No. 8 of 1971, wherein the defendant was directed to pay a sum of Rs. 7,040/- to the plaintiff with future interest at six per cent per annum on the principal sum of Rs. 6,971/-. During the pendency of the appeal, the defendant having died, his legal heirs have been substituted who are pursuing this appeal.

(2.) According to the plaint case, the defendant posing himself to be a forest contractor having taken some forest coupe on lease, persuaded the plaintiff to be a partner in business and took Rs. 6.971/- in cash from him on 30-9-1968. On that date an agreement (Ext. 2) was executed wherein it was agreed that the plaintiff would get one-third share in the profit out of the timbers that would be sold, but notwithstanding the same agreement, the defendant did not pay anything for which the plaintiff filed a petition on 7-8-1970 (Ext. A) before the Sub-Divisional Officer, Nayagarh, seeking his interference for the redress. The Sub-Divisional Officer referred the matter to the Sarpanches of five Grama Panchayats who met on 21-11-1970 and an agreement was entered into between the plaintiff and the defendant. The said Panchnama is Ext. 1. Even thereafter, the defendant did not pay anything and. therefore, the present suit was filed for realisation of Rs. 6,971/- which was paid to the defendant on 30-9-1968 together with interest of Rs. 69/-, total amounting to Rs. 7,040/-.

(3.) The defendant in his written statement challenged the maintainability of the suit on the ground that it was hit by S.69(2) of the Partnership Act and further that a suit by a partner against the firm for realisation without prayer for dissolution of partnership and rendition of accounts was not maintainable. So far as the merit of the case is concerned, it was pleaded that the firm sustained heavy loss and, therefore, the question of paying one-third to the plaintiff out of the profit did not arise. According to the defendant, his son Harihar Sahu was carrying on business as a forest contractor to whom the sum of Rs. 6,971/- was advanced by the plaintiff. According to the written statement, the plaintiff was bound to share the loss but he had not paid anything towards the loss and, therefore, the question of paying back Rs. 6,971/- did not arise.