GHISULAL Vs. HAZI MOHAMMED

JUDGEMENT

(1.) This is a civil second appeal under Section 100 CPC against the judgment and decree of the Additional District Judge, Sirohi, dated 19-4-1969, by which the decree and judgment of the Munsif Ball dated 12-10-1968, decreeing the suit of the plaintiff for Rs. 760/- with costs and pendente lite and future interest at the rate of Rupees 6/- per cent per annum was confirmed.

(2.) The relevant facts giving rise to this second appeal may be briefly described as follows:-- Haji Mohammed plaintiff-respondent instituted a suit against the partners of Mahendra Boot House, namely, Somaram, Bagaram and Ghisulal in the court of Munsif Bali for recovery of a sum of Rupees 760/-. The averments in the plaint were that the defendants were partners in a firm under the name and style Mahendra Boot House situated at Bali. The firm used to deal in leather, shoes and hardware. On 23-1-1964 Somaram partner of the firm secured a loan of Rs. 658/- from the plaintiff for business of the firm i.e. payment of the price of pieces of leather and executed a promissory note for this amount in favour of the plaintiff along with a receipt of money. Somaram defendant No. 1 further agreed to pay interest on the principal amount at the rate of Rs. 12/- per cent per annum. According to the plaintiff, the loan was secured by Somaram for the partnership business and so all the partners were liable for payment thereof to the plaintiff. Later on the firm was dissolved with effect from 18-11-1964 and the loan secured by Somaram remained unpaid. Hence the plaintiff served a notice on the partners of the firm on 22-3-1965, asking them to pay off the loan along with interest at the stipulated rate. The defendants failed to make any payment in response to the demand notice given to them by the plaintiff. Hence the plaintiff brought a suit for recovery of Rupees 760/- against them.

(3.) The defendants appeared in the Court of Munsif in response to the summonses issued in the suit. The defendants Nos. 1 and 2 admitted the claim of the plaintiff for Rs. 760/- and further pleaded that the firm Mahendra Boot House was dissolved on 18-11-1964 on account of sickness of its partner defendant No. 1 and the assets and liabilities of the firm were transferred to Gheesulal partner-defendant No. 3 who alone is, therefore, liable to pay off the suit money to the plaintiff. Ghisulal resisted the suit of the plaintiff on the ground that he was not a partner of the firm Mahendra Boot House which was a joint Hindu family firm consisting of defendants Nos. 1 and 2 and that he did not secure any loan of Rs. 658/- from the plaintiff on 23-1-1964. If the amount of Rs. 658/- has been secured on credit by defendants Nos. 1 and 2 from the plaintiff and if they have executed any pro note or receipt for that amount they alone are responsible for making payment thereof. Ghisulal raised an additional plea in his written statement that defendants Nos. 1 and 2 secured a loan of Rs. 1500/- from him on 1-5-1963 and executed a promissory note for that amount in his favour but later on the defendants Nos. 1 and 2 could not pay off this debt. Hence they assured him (Ghisulal) that the latter would have one and a half share in the business of the firm. Thereafter the monetary condition of the defendants Nos. 1 and 2 went (from) bad to worse and the business of the firm received a setback so they conspired together to shift the entire liability on Ghisulal for loans of the firm and in pursuance of the said conspiracy colluded with the plaintiff and caused this suit to be brought against him i.e. Ghisulal also.