LACHMICHAND JAGARNATH FIRM Vs. JAGOO LAL JASARAJ FIRM

JUDGEMENT

(1.) The plaintiff-appellant sued the respondents to recover the price of 18 wagons of coal despatched to Nasirabad. The plaintiff s case was that he had entered into an agreement with the defendants to send coal from Kirkend to Nazirabad; that the defendants were to pay the freight and that the profit on re-sale of the coal was to be shared between them. He further included in his plaint a claim for the estimated profits as well as the price of the coal. The first Court passed a decree directing the defendants to render accounts. In appeal by the defendants that decree has been set aside by the appellate Court which has held that the relationship between the parties was that of partners and that in the absence of a prayer for dissolution of the partnership, the suit as framed was not maintainable. The appellate Court has also held that the suit was not maintainable at Kirkend.

(2.) In this second appeal by the plaintiff, it is contended that on the finding arrived at by the Court below, namely that there was a partnership between the parties, the Court should have directed accounts. Reliance has been placed on certain decisions in which it has been held that it is not an invariable rule that a partner is not entitled to maintain a suit for accounts against a co-partner without seeking dissolution of the partnership; but it has been pointed out in the decision in Krishnaswami Naidu v. Jayalakshmi Ammal AIR 1931 Mad 300 that before such a suit can be instituted, a special ground must be made out; that is to say, that ordinarily a partner is not entitled to partial accounts, but if he wants an account of the partnership dealings, he must sue for a general account. In the suit as framed no special grounds for a partial account of the partnership transactions were made out, and could not in the circumstances in which the plaintiff instituted his suit, be made out, for the reason that the plaintiff chose to sue as if he had supplied coal to the defendants on credit and was now entitled to the price of that coal. At a, late stage of the litigation the plaintiff offered to amend his plaint; but, even in the amendment which was sought to be made it was not alleged that there was any special ground why the general rule should not prevail. In these circumstances the decision of the Court of appeal below was correct and this appeal must be dismissed with costs.